REGISTRATION NO. _______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
CH ENERGY GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
NEW YORK 6719 14-1804460
(STATE OR OTHER (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
JURISDICTION OF CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
STEVEN V. LANT
TREASURER AND SECRETARY
CH ENERGY GROUP, INC.
284 SOUTH AVENUE 284 SOUTH AVENUE
POUGHKEEPSIE, NY 12601-4879 POUGHKEEPSIE, NY 12601-4879
(914) 452-2000 (914) 486-5254
(ADDRESS, INCLUDING ZIP CODE, AND (NAME, ADDRESS, INCLUDING ZIP
TELEPHONE NUMBER, INCLUDING AREA CODE, AND TELEPHONE NUMBER,
CODE, OF REGISTRANT'S PRINCIPAL INCLUDING AREA CODE, OF AGENT
EXECUTIVE OFFICES) FOR SERVICE)
COPIES TO:
WILLIAM P. REILLY, ESQ.
GOULD & WILKIE LLP
ONE CHASE MANHATTAN PLAZA
NEW YORK, NY 10005-1401
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this registration statement has become effective.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ X ] No. 333-52797
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CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED UNIT(1) PRICE(1) FEE
---------- ------- -------- ------------
Common Stock,
par value $.10 per
share 200,000 $36.9375 $7,387,500 $2,053.73
(1) Estimated pursuant to Rule 457(f)(1) of the Securities Act of 1933, based
upon the per share market value of the shares of common stock of Central
Hudson to be exchanged in the Share Exchange (described under the below
caption "Statement"), which is the average of the reported high and low
sales prices of a share of common stock of Central Hudson on the New York
Stock Exchange, Inc. Composite Tape on November 12, 1999.
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STATEMENT
---------
This Registration Statement, on Form S-4, is being filed by CH Energy
Group, Inc. with the Securities and Exchange Commission (the "SEC") pursuant to
General Instruction K to Form S-4 Registration Statement and Rule 462(b) issued
under the Securities Act of 1933 ("Act") for the purpose of registering under
the Act 200,000 additional shares of Common Stock, par value $.10 per share, of
the Company ("Common Stock") for issuance pursuant to the Share Exchange,
hereinafter described.
The Company has heretofore registered under the Act a total of 16,700,000
shares of Common Stock for issuance pursuant to said Share Exchange by means of
the currently effective Registration Statement on Form S-4 (Registration No.
333-52797) previously filed with the SEC (the "Prior Registration Statement").
The contents of the Prior Registration Statement is hereby incorporated by
reference into this Registration Statement.
The Share Exchange is more particularly described in the Prior
Registration Statement. On the effective date of the Share Exchange, the
outstanding shares of common stock, par value $5.00 per share, of Central Hudson
Gas & Electric Corporation ("Central Hudson") will automatically be exchanged,
on a one-to-one basis, for shares of Common Stock. Thereafter, Central Hudson
will be a wholly-owned subsidiary of the Company.
The number of shares of Common Stock of the Company to be issued in the
Share Exchange could not be precisely determined at the time the Prior
Registration Statement became effective. The Share Exchange is expected to be
effective on or about December 15, 1999. The total number of shares of Common
Stock to be issued is now expected not to exceed 16,900,000 shares. The number
of shares registered by the Prior Registration Statement is 16,700,000.
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See the undertaking of the Company in Item 22(4) in Part II of the Prior
Registration Statement.
Opinions, Consents and Powers of Attorney
- - -----------------------------------------
The following Opinions, Consents, Powers of Attorney and other updated
Exhibits are filed as Exhibits to this Registration Statement as required by
General Instruction K to Form S-4 Registration Statement:
(Regulation S-K
Item 601
Designation) Exhibit
------------ -------
(3) - - Articles of Incorporation and By-Laws:
(i) - - Restated Certificate of Incorporation of the
Registrant under Section 807 of the Business
Corporation Law, filed November 12, 1998. Incorporated
by reference to Exhibit 3(ii) filed with Registrant's
Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1998.
(ii) - - By-Laws in effect on the date of the filing of this
Registration Statement.
(5) - - Opinion of Gould & Wilkie LLP re legibility of
securities registered hereunder.
(8) - - Tax Opinion of Gould & Wilkie LLP
23.1 - - Consent of Gould & Wilkie LLP (included in Exhibits 5
and 8)
23.2 - - Consent of PricewaterhouseCoopers, LLP
24 - - Power of Attorney for each director and officer signing
the Registration Statement
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SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Poughkeepsie, State of New
York, on the 16th day of November, 1999.
CH ENERGY GROUP, INC.
(Registrant)
By: /S/ PAUL J. GANCI
--------------------------
Paul J. Ganci
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed by the following persons in the
capacities, and on the dates indicated.
Signature Title Date
- - --------- ----- ----
Steven V. Lant, Treasurer and November 16, 1999
Secretary (Principal Financial Officer);
Donna S. Doyle, Controller (Principal
Accounting Officer); and John E. Mack III,
a Director.
/S/ PAUL J. GANCI November 16, 1999
- - --------------------------------------------
(Paul J. Ganci, as a director and
as Attorney-in-Fact)
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EXHIBIT INDEX
-------------
The following Opinions, Consents, Powers of Attorney and other updated
Exhibits are filed as Exhibits to this Registration Statement as required by
General Instruction K to Form S-4 Registration Statement:
(Regulation S-K
Item 601
Designation) Exhibit
------------ -------
(3) - - Articles of Incorporation and By-Laws:
(i) - - Restated Certificate of Incorporation of the Registrant
under Section 807 of the Business Corporation Law,
filed November 12, 1998. Incorporated by reference to
Exhibit 3(ii) filed with Registrant's Quarterly Report
on Form 10-Q for the fiscal quarter ended September 30,
1998.
(ii) - - By-Laws in effect on the date of the filing of this
Registration Statement.
(5) - - Opinion of Gould & Wilkie LLP re legibility of
securities registered hereunder.
(8) - - Tax Opinion of Gould & Wilkie LLP
23.1 - - Consent of Gould & Wilkie LLP (included in Exhibits 5
and 8)
23.2 - - Consent of PricewaterhouseCoopers, LLP
24 - - Power of Attorney for each director and officer signing
the Registration Statement
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Exhibit 3(ii)
BY-LAWS
CH ENERGY GROUP, INC.
POUGHKEEPSIE, NEW YORK
INDEX
PAGE
----
ARTICLE I MEETINGS OF SHAREHOLDERS
Section 1.1 Annual Meetings............................................. 1
Section 1.2 Special Meetings............................................ 1
Section 1.3 Place of Meetings........................................... 1
Section 1.4 Presiding at Meetings....................................... 1
Section 1.5 Quorum...................................................... 1
Section 1.6 Adjournment................................................. 2
Section 1.7 Notice of Meetings.......................................... 2
Section 1.8 Waiver and Consent.......................................... 2
Section 1.9 Fixing Record Date.......................................... 3
Section 1.10 List of Shareholders at Meetings............................ 3
Section 1.11 Proxies..................................................... 3
Section 1.12 Notice of Shareholder Business and Nominations.............. 4
Section 1.13 Inspectors of Elections.................................... 7
Section 1.14 Vote of Shareholders........................................ 7
ARTICLE II BOARD OF DIRECTORS
Section 2.1 Number of Directors......................................... 7
Section 2.2 Elections, Terms and Vacancies.............................. 7
Section 2.3 Meetings of the Board....................................... 8
Section 2.4 Notice and Adjournment...................................... 8
(i)
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PAGE
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ARTICLE II BOARD OF DIRECTORS (Continued)
Section 2.5 Quorum...................................................... 9
Section 2.6 Unanimous Written Consent................................... 9
Section 2.7 Resignation of Directors.................................... 9
Section 2.8 Removal of Directors........................................ 9
Section 2.9 Compensation of Directors................................... 9
Section 2.10 Time and Place of Meetings.................................. 10
Section 2.11 Special Meetings............................................ 10
Section 2.12 Telephonic Meetings......................................... 10
ARTICLE III COMMITTEES
Section 3.1 Organization and Authority.................................. 10
Section 3.2 Executive Committee......................................... 11
Section 3.3 Action by a Committee....................................... 11
Section 3.4 Quorum...................................................... 11
Section 3.5 Reports to Board of Directors............................... 11
Section 3.6 Compensation of Committee Members........................... 11
Section 3.7 Resignation and Removal of Committee Members................ 11
Section 3.8 Unanimous Written Consent................................... 12
Section 3.9 Place of Committee Meetings................................. 12
Section 3.10 Notice...................................................... 12
ARTICLE IV OFFICERS AND THEIR DUTIES
Section 4.1 Officers.................................................... 12
Section 4.2 Term of Office; Resignation; Removal; Vacancies............. 12
Section 4.3 Powers and Duties........................................... 13
Section 4.4 Salaries.................................................... 13
Section 4.5 Chairman.................................................... 13
Section 4.6 Vice Chairman............................................... 13
Section 4.7 President................................................... 14
Section 4.8 Vice President.............................................. 14
Section 4.9 Secretary................................................... 14
Section 4.10 Treasurer................................................... 15
Section 4.11 Controller.................................................. 15
Section 4.12 Other Officers.............................................. 15
(ii)
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PAGE
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ARTICLE V SHARES CERTIFICATED SHARES
Section 5.1 Certificates, Registrar and Transfer Agent.................. 16
Section 5.2 Authorization of Facsimile Signatures and Seal.............. 16
Section 5.3 Transfer of Certificated Shares............................. 16
Section 5.4 Lost, Stolen or Destroyed Share Certificates................ 16
ARTICLE VI INDEMNIFICATION
Section 6.1 General Applicability....................................... 17
Section 6.2 Scope of Indemnification.................................... 17
Section 6.3 Other Indemnification Provisions............................ 17
Section 6.4 Survival of Indemnification................................. 18
Section 6.5 Inability to Limit Indemnification.......................... 18
Section 6.6 Severability................................................ 18
ARTICLE VII OTHER MATTERS
Section 7.1 Books to be Kept............................................ 18
Section 7.2 Corporate Seal.............................................. 19
Section 7.3 When Notice or Lapse of Time Unnecessary.................... 19
Section 7.4 Contracts, etc., How Executed............................... 19
Section 7.5 Loans....................................................... 19
Section 7.6 Deposits.................................................... 20
Section 7.7 General and Special Bank Accounts........................... 20
Section 7.8 Fiscal Year................................................. 20
ARTICLE VIII AMENDMENTS TO BY-LAWS
Section 8.1 By Directors................................................ 20
Section 8.2 By Shareholders............................................. 21
(iii)
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ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.1 ANNUAL MEETINGS
The annual meeting of the shareholders, for the election of directors and
the transaction of such other business as may be brought before the meeting,
shall be held each year on the fourth Tuesday in April (or if said day be a
legal holiday, then on the next succeeding business day), at such time of day as
the directors may determine.
SECTION 1.2 SPECIAL MEETINGS
Subject to the rights of the holders of any series of stock having a
preference over the Common Stock of the Company as to dividends or upon
liquidation ("Preferred Stock") with respect to such series of Preferred Stock,
special shareholders' meetings may be called by holders of a majority of the
votes of the outstanding shares of common stock of the Company entitled to vote
or act with respect thereto upon the business to be brought before such meeting,
or by the Chairman of the Board of Directors pursuant to a resolution adopted by
a majority of the total number of directors which the Company would have if
there were no vacancies. At any special meeting, only such business may be
transacted which is related to the purpose(s) set forth in the notice of such
special meeting given pursuant to Section 1.7 of these By-Laws.
SECTION 1.3 PLACE OF MEETINGS
Shareholders' meetings shall be held at the principal office of the
Company or at such other place as designated by the Board of Directors and
stated in the notice of such meeting.
SECTION 1.4 PRESIDING AT MEETINGS
At all shareholders' meetings, the Chairman of the Board of Directors,
Vice Chairman, the President or a Vice President, shall act as Chairman of the
meeting as provided for in Sections 4.5, 4.7 and 4.8 and the Secretary or
Assistant Secretary shall act as Secretary of the meeting as provided for in
Section 4.9.
SECTION 1.5 QUORUM
Holders of a majority of the votes of the shares of the Company entitled
to vote must be present, in person or by proxy, at each shareholders' meeting to
constitute a quorum at such meeting. When a specified item of business is
required to be voted on by a class or series, voting as a class, the holders of
a majority of the votes of the shares of such class or series shall constitute a
quorum for the transaction of such specified item of business. When a quorum is
once present to organize a meeting, it is not broken by the subsequent
withdrawal of any shareholders.
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Except as may be provided by or pursuant to the Certificate of
Incorporation, at all shareholders' meetings each shareholder entitled to vote
shall be entitled to one vote for each share held by him or her, and may vote
and otherwise act either in person or by proxy, as provided for in Section 1.11.
SECTION 1.6 ADJOURNMENT
The Chairman of the meeting, or a majority of the shares so represented at
the meeting, may adjourn the meeting despite the absence of a quorum. When a
shareholders' meeting is adjourned to another time or place, it shall not be
necessary to give any notice of the adjourned meeting if the time and place to
which the meeting is adjourned are announced at the meeting at which the
adjournment is taken, and at the adjourned meeting any business may be
transacted that might have been transacted on the original date of the meeting.
However, if after the adjournment the Board of Directors fixes a new record date
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each shareholder of record on the new record date entitled to notice under this
Section 1.6.
SECTION 1.7 NOTICE OF MEETINGS
Written notice of the date, time and place of every shareholders' meeting
shall be given personally, or by first class mail (not less than ten (10) nor
more than sixty (60) days before the date of the meeting) or by third class mail
(not less than twenty-four (24) nor more than sixty (60) days before the date of
the meeting) or as otherwise may be permitted by law, to each shareholder of
record as of the date fixed by the Board of Directors, pursuant to Section 1.9
hereof, and such other notice shall be given as may be required by law.
Notice of a special shareholders' meeting shall indicate that it is being
issued by or at the direction of the person or persons calling the meeting and
shall state the purpose(s) for which the meeting is called.
If mailed, such notice shall be deemed given when deposited in the United
States mail, with postage thereon prepaid, directed to the shareholder at his or
her address as it appears on the shareholders' list or record, or, if he or she
shall have filed with the Secretary of the Company a written request that
notices to him or her be mailed to some other address, then directed to him or
her at such other address.
An affidavit of the Secretary of the Corporation or other person giving
the notice or of a transfer agent of the Corporation that the notice required by
this Section 1.7 has been given shall be supplied at the meeting to which it
relates.
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SECTION 1.8 WAIVER AND CONSENT
Notice of meeting need not be given to any shareholder who submits a
signed waiver of notice, in person or by proxy, whether before or after the
meeting. The attendance of any shareholder at a meeting, in person or by proxy,
without objecting to the lack of notice of such meeting prior to the conclusion
of the meeting, shall constitute a waiver of notice by such shareholder.
The transactions of any shareholders' meeting, however called and noticed,
are as valid as though had at a meeting duly held after regular call and notice,
if a quorum is present either in person or by proxy, and if, either before or
after the meeting, each of the persons entitled to vote, not present in person
or by proxy, signs a written waiver of notice, or a consent to the holding of
the meeting, or an approval of the minutes thereof.
All such waivers, consents or approvals shall be filed with the corporate
records or made a part of the minutes of the meeting. Executors, administrators,
guardians, trustees, and other fiduciaries entitled to vote shares may sign such
waivers, consents and approvals.
SECTION 1.9 FIXING RECORD DATE
For the purpose of determining the shareholders entitled to notice of or
to vote at any shareholders' meeting or any adjournment thereof, or for the
purpose of determining shareholders entitled to receive payment of any dividend
or the allotment of any rights, or for the purpose of any other action, the
Board of Directors may fix, in advance, a date as the record date for any such
determination. Such date shall not be more than sixty (60) nor less than ten
(10) days before the date of such meeting, nor more than sixty (60) days before
the date of such action.
SECTION 1.10 LIST OF SHAREHOLDERS AT MEETINGS
A list of shareholders as of the record date, certified by the Secretary
or any Assistant Secretary or by a transfer agent, shall be produced at any
shareholders' meeting upon the request thereat or prior thereto of any
shareholder. If the right to vote at any meeting is challenged, the inspectors,
or the person presiding thereat, shall require such list of shareholders to be
produced as evidence of the right of the persons challenged to vote at such
meeting, and all persons who appear from such list to be shareholders entitled
to vote thereat may vote at such meeting.
SECTION 1.11 PROXIES
(a) Generally. Every person entitled to vote or execute consents shall
have the right to do so either in person or by one or more agents authorized by
a written proxy executed by such person or his duly authorized agent and filed
with the Secretary of the Company. Any executor, administrator, guardian,
trustee or other fiduciary, may give proxies.
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(b) Term of Proxies. A proxy is not valid after the expiration of eleven
(11) months from the date of its execution, unless the length of time for which
such proxy is to continue in force is otherwise specified therein, which in no
case shall exceed seven (7) years from the date of its execution.
(c) Revocation and Suspension of Proxies. Any proxy duly executed
continues in full force and effect and is not revoked until an instrument
revoking it, or until a duly executed proxy bearing a later date, is filed with
the Secretary of the Company. A proxy is not revoked by the death or incapacity
of the maker unless, before the vote is counted or the authority is exercised,
written notice of the death or incapacity is given to the Company.
Notwithstanding that a valid proxy is outstanding, if the person executing the
proxy is present at the meeting and elects to vote in person, then the powers of
the proxy holder are suspended, except in the case of a proxy coupled with an
interest (which states that fact on its face).
(d) Voting by Two or More Proxies. If any instrument of proxy designates
two or more persons to act as proxy, in the absence of any provision in the
proxy to the contrary, the persons designated may represent and vote the shares
in accordance with the vote or consent of the majority of the persons named as
such proxies. If only one such proxy is present, such proxy may vote all the
shares, and all the shares standing in the name of the principal(s) for whom
such proxy acts shall be deemed represented for the purpose of obtaining a
quorum. The foregoing provisions shall apply to the voting of shares by proxies
for any two or more administrators, executors, trustees, or other fiduciaries,
unless an instrument or order of court appointing them otherwise directs.
(e) Directors' Determination of Execution and Use of Proxies. The Board of
Directors may, in advance of any annual or special meeting of the shareholders,
prescribe additional regulations concerning the manner of execution and filing
of proxies and the validation of the same, which are intended to be voted at any
such meeting.
SECTION 1.12 NOTICE OF SHAREHOLDER BUSINESS AND
NOMINATIONS
A. ANNUAL SHAREHOLDERS' MEETINGS
(1) Nominations of persons for election to the Board of Directors of the
Company and the proposal of business to be considered by the shareholders may be
made at an annual shareholders' meeting (a) pursuant to the Company's notice of
meeting, (b) by or at the direction of the Board of Directors or (c) by any
shareholder of the Company who was a shareholder of record at the time of giving
of notice provided for in this Section 1.12 who is entitled to vote at the
meeting and who complies with the notice of procedures set forth in this Section
1.12.
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(2) For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to clause (c) of paragraph A.(1) of
this Section 1.12, the shareholder must have given timely notice thereof in
writing to the Secretary of the Company and such other business must otherwise
be a proper matter for shareholder action. To be timely, a shareholder's notice
shall be delivered to the Secretary at the principal executive offices of the
Company not later than the close of business on the 60th day nor earlier than
the close of business on the 90th day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is more than 30 days before or more than 60 days
after such anniversary date, notice by the shareholder to be timely must be so
delivered not earlier than the close of business on the 90th day prior to such
annual meeting and no later than the close of business on the later of the 60th
day prior to such annual meeting or the 10th day following the day on which the
date of such meeting is first publicly announced or disclosed (in a public
filing or otherwise) by the Company. In no event shall the public announcement
of an adjournment of an annual meeting commence a new time period for the giving
of a shareholder's notice as described above. Such shareholder's notice shall
set forth (a) as to each person whom the shareholder proposes to nominate for
election or reelection as a Director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
Directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and Rule 14a-11 thereunder (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
Director if elected); (b) as to any other business that the shareholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (c) as to
the shareholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
shareholder, as they appear on the Company's books, and of such beneficial owner
and (ii) the class and number of shares of the Company which are owned
beneficially and of record by such shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph A.(2) of
this Section 1.12 to the contrary, in the event that the number of Directors to
be elected to the Board of Directors of the Company is increased and there is no
public announcement by the Company naming all of the nominees for Director or
specifying the size of the increased Board of Directors at least 70 days prior
to the first anniversary of the preceding year's annual meeting, a shareholder's
notice required by paragraph A. of Section 1.12 shall also be considered timely,
but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal executive
offices of the Company not later than the close of business on the 10th day
following the day on which such public announcement is first made by the
Company.
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B. SPECIAL SHAREHOLDERS' MEETINGS
Only such business shall be conducted at a special shareholders' meeting
as shall have been brought before the meeting pursuant to the Company's notice
of meeting. Nominations of persons for election to the Board of Directors may be
made at a special shareholders' meeting at which Directors are to be elected
pursuant to the Company's notice of meeting (a) by or at the direction of the
Board of Directors or (b) provided that the Board of Directors has determined
that Directors shall be elected at such meeting, by any shareholder of the
Company who is a shareholder of record at the time of giving of notice provided
for in this Section 1.12 who is entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 1.12. In the event the
Company calls a special shareholders' meeting for the purpose of electing one or
more Directors to the Board of Directors, any such shareholder may nominate a
person or persons (as the case may be), for election to such position(s) as
specified in the Company's notice of meeting, if the shareholder's notice
required by paragraph A.(2) of this Section 1.12 shall be delivered to the
Secretary at the principal executive offices of the Company not earlier than the
close of business on the 90th day prior to such special meeting and not later
than the close of business on the later of the 60th day prior to such special
meeting or the 10th day following the day on which public announcement or other
disclosure (in a public filing or otherwise) is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for the giving of a
shareholder's notice as described above.
C. GENERAL
(1) Only such persons who are nominated in accordance with the procedures
set forth in this Section 1.12 shall be eligible to serve as Directors and only
such business shall be conducted at a shareholders' meeting as shall have been
brought before the meeting in accordance with the procedures set forth in this
Section 1.12. Except as otherwise provided by law, the Chairman of the meeting
shall have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Section 1.12 and, if any
proposed nomination or business is not in compliance with this Section 1.12, to
declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this Section 1.12, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Company with the Securities and Exchange Commission pursuant to Section 13, 14,
or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 1.12, a
shareholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 1.12. Nothing in this Section 1.12
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of Article I shall be deemed to affect any rights (i) of shareholders to request
inclusion of proposals in the Company's proxy statement pursuant to Rule 14a-8
under the Exchange Act or (ii) of the holders of any series of Preferred Stock
to elect Directors under specified circumstances.
SECTION 1.13 INSPECTORS OF ELECTIONS
The Board of Directors by resolution shall appoint, or shall authorize an
officer of the Company to appoint, one or more inspectors, which inspector or
inspectors may include individuals who serve the Company in other capacities,
including, without limitation, as officers, employees, agents or
representatives, to act at the meetings of shareholders and make a written
report thereof. One or more persons may be designated as alternate inspector(s)
to replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of shareholders, the Chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging such person's duties, shall take and sign an oath
to execute faithfully the duties of inspector with strict impartiality and
according to the best of such person's ability. The inspector(s) shall have the
duties prescribed by law. The Chairman of the meeting shall fix and announce at
the meeting the date and time of the opening and the closing of the polls for
each matter upon which the shareholders will vote at a meeting.
SECTION 1.14 VOTE OF SHAREHOLDERS
Subject to the rights of holders of any series of Preferred Stock,
Directors shall, except as otherwise required by law or by the Certificate of
Incorporation or by a specific provision of these By-Laws adopted by the
shareholders, be elected by a plurality of the votes cast at a meeting of
shareholders by the holders of shares entitled to vote in the election. Subject
to the rights of holders of any series of Preferred Stock, whenever any
corporate action, other than the election of Directors, is to be taken by vote
of the shareholders, it shall, except as otherwise required by law or by the
Certificate of Incorporation, be authorized by a majority of the votes cast at a
meeting of shareholders by the holders of shares entitled to vote thereon.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.1 NUMBER OF DIRECTORS
The affairs of this Company shall be managed by no less than one (1) nor
more than twenty-five (25) Directors as fixed by resolution adopted by a
majority of the entire Board. Each director shall be at least 18 years of age.
No person who has reached age 70 shall stand for election as a Director.
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SECTION 2.2 ELECTIONS, TERMS AND VACANCIES
At the first annual meeting of shareholders following the adoption of the
Restated Certificate of Incorporation of the Company, or any special meeting in
lieu thereof, the Board of Directors shall be divided into three classes
designated Class I, Class II and Class III. Such classes shall be as nearly
equal in number as the then total number of Directors constituting the entire
Board permits. Class I, Class II and Class III Directors shall be elected for
terms expiring at the next succeeding annual meeting, the second succeeding
annual meeting and the third succeeding annual meeting, respectively, and until
their respective successors are elected and qualified. At each annual
shareholders' meeting after such first annual (or special) meeting of
shareholders following the adoption of the Restated Certificate of Incorporation
of the Company, the Directors chosen to succeed those in the class whose terms
then expire shall be elected by shareholders for terms expiring at the third
succeeding annual meeting after election, or for such lesser term for which one
or more may be nominated in a particular case in order to assure that the number
of Directors in each class shall be appropriately constituted and until their
respective successors are elected and qualified. Newly created Directorships or
any decrease in Directorships resulting from increases or decreases in the
number of Directors shall be so apportioned among the classes of Directors as to
make all the classes as nearly equal in number as possible. Vacancies on the
Board at any time may be filled by a majority of the Directors then in office,
although less than a quorum. A Director elected to fill a vacancy, unless
elected by the shareholders, shall hold office until the next meeting of
shareholders at which the election of Directors is in the regular order of
business, and until his or her successor has been elected and qualified.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Stock (other than the Common Stock) shall have the right,
voting separately by class or series, to elect Directors at an annual or special
shareholders' meeting, the election, term of office, filling of vacancies and
other features of such Directorships shall be governed by any terms of the
Certificate of Incorporation of the Company applicable thereto, and such
Directors so elected shall not be divided into classes pursuant to this Section
2.2 unless expressly provided by such terms.
SECTION 2.3 MEETINGS OF THE BOARD
An annual meeting of the Board of Directors shall be held in each year as
soon as practicable after the annual meeting of shareholders. Regular meetings
of the Board shall be held at such times as may be fixed by the Board. No notice
need be given of annual or regular meetings of the Board of Directors.
SECTION 2.4 NOTICE AND ADJOURNMENT
Notice of each special meeting of the Board shall be given to each
director either by mail not later than noon, New York time, on the fifth
business day prior to the meeting or by telegram,
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by facsimile transmission, by written message or orally to the Directors not
later than noon, New York time, on the day prior to the meeting. Notices shall
be deemed to have been given by mail when deposited in the United States mail,
by telegram at the time of filing, by facsimile transmission upon confirmation
of receipt, and by messenger at the time of delivery by the messenger. Notices
by mail, telegram, facsimile transmission or messenger shall be sent to each
Director at the address or facsimile number designated by him or her for that
purpose, or, if none has been so designated, at his or her last known residence
or business address. Notice of a meeting of the Board of Directors need not be
given to any Director who submits a signed waiver of notice whether before or
after the meeting, or who attends the meeting without protesting, prior thereto
or at its commencement, the lack of notice to him or her. A notice or waiver of
notice need not specify the purpose of any meeting of the Board of Directors. A
majority of the Directors present, whether or not a quorum is present, may
adjourn any meeting to another time and place. Notice of any adjournment of a
meeting to another time or place shall be given in the manner described above to
the Directors who were not present at the time of the adjournment and, unless
such time and place are announced at the meeting, to the other Directors.
SECTION 2.5 QUORUM
Unless a greater quorum is required by law, a majority of the number of
directors at the time serving on the Board of Directors shall constitute a
quorum for the transaction of business, or of any specified item of business,
provided, however, that a quorum shall not consist of less than one-third of the
entire Board of Directors. Except where otherwise provided by law or in the
Certificate of Incorporation or these By-Laws, the vote of a majority of the
Directors present at a meeting at the time of such vote, if a quorum is then
present, shall be the act of the Board.
SECTION 2.6 UNANIMOUS WRITTEN CONSENT
Any action authorized, in writing, by all of the Directors entitled to
vote thereon and filed with the minutes of the Company shall be the act of the
Board with the same force and effect as if the same had been passed by unanimous
vote at a duly called meeting of the Board.
SECTION 2.7 RESIGNATION OF DIRECTORS
Any Director of the Company may resign at any time. Such resignation shall
be made in writing and shall take effect at the time specified therein, or, if
no time be specified, at the time of its receipt by the Chairman of the Board or
Secretary. The acceptance of a resignation shall not be necessary to make it
effective unless so specified therein.
SECTION 2.8 REMOVAL OF DIRECTORS
Subject to the rights of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation to elect Directors
under specified circumstances, any
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Director may be removed from office only for cause by a vote of the shareholders
entitled to vote thereon.
SECTION 2.9 COMPENSATION OF DIRECTORS
Members of the Board shall receive such fees and compensation fixed from
time to time by the Board and shall be reimbursed for reasonable expenses for
attending Board Meetings.
SECTION 2.10 TIME AND PLACE OF MEETINGS
Meetings of the Board of Directors shall be held in such month on such day
at such hour and at such place as the Board may from time to time direct.
SECTION 2.11 SPECIAL MEETINGS
Special meetings of the Board may be held on the call of the Chairman of
the Board of Directors, the President or the Secretary or upon written request
of a majority of the Directors at the time serving on the Board addressed to the
Secretary.
SECTION 2.12 TELEPHONIC MEETINGS
Any one or more members of the Board or any committee of the Board may
participate in a meeting of the Board or committee by means of a conference
telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other at the same time; and participation by such
means shall constitute presence in person at a meeting.
ARTICLE III
COMMITTEES
SECTION 3.1 ORGANIZATION AND AUTHORITY
The Board of Directors, by resolution adopted by a majority of the entire
Board, may designate from among its members, such committees as the Board of
Directors may from time to time determine, including the committee created by
Section 3.2 of this Article III, each consisting of three or more Directors, and
each of which, to the extent provided in the resolution, shall have all the
authority of the Board, except that no such committee shall have authority as to
(1) the submission to shareholders of any action that needs shareholders'
approval; (2) the filling of vacancies in the Board or in any committee thereof;
(3) the fixing of compensation of the Directors for serving on the Board or on
any committee thereof; (4) the amendment or repeal of the By-Laws, or the
adoption of new By-Laws; (5) the amendment or repeal of any resolution of the
Board which, by its terms, shall not be so amendable or repealable; (6) the
fixing or changing of the size of the Board; or (7) the removal or
indemnification of Directors. In the event of the absence of any member(s) from
a meeting of a committee, replacements may be made from
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Directors designated as alternate members of such committee by the Board. The
Chairman of the Board of Directors, or in his absence or should he so direct,
the President, or in his absence, a Vice President, if such officers are members
of the committee, shall preside at meetings of the committee, otherwise the
presiding officer shall be designated by majority vote of the committee.
Vacancies in the membership of the committee shall be filled by the Board of
Directors at a regular or special meeting of the Board of Directors. Unless the
Board of Directors otherwise provides, each committee designated by the Board
may adopt, amend and repeal rules for the conduct of its business.
SECTION 3.2 EXECUTIVE COMMITTEE
There shall be an Executive Committee of two (2) or more of the Directors
to be designated by the Board, which, together with the Chairman of the Board of
Directors and the President, shall constitute an Executive Committee. The
Executive Committee shall have and may exercise all of the authority and powers
of the Board subject to limitations prescribed by law or these By-Laws. The
Secretary of the Company shall be the Secretary of the Executive Committee.
SECTION 3.3 ACTION BY A COMMITTEE
The act of a majority of the members of a committee present at any meeting
at which a quorum is present shall be the act of such committee. The members of
a committee shall act only as a committee, and the individual members thereof
shall have no individual powers as such. Each committee may make such rules as
it may deem expedient for the regulation and carrying on of its meetings and
proceedings.
SECTION 3.4 QUORUM
A majority of the members of a committee shall constitute a quorum.
SECTION 3.5 REPORTS TO BOARD OF DIRECTORS
Each such committee shall keep a record of its proceedings and make
reports to the Board at its next regular meeting.
SECTION 3.6 COMPENSATION OF COMMITTEE MEMBERS
Members of committees of the Board shall receive such fees and
compensation as fixed from time to time by the Board and shall be reimbursed for
reasonable expenses for attending committee meetings.
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SECTION 3.7 RESIGNATION AND REMOVAL OF COMMITTEE MEMBERS
Any member of any committee may resign at any time. Such resignation shall
be made in writing and shall take effect at the time specified therein, or, if
no time be specified, at the time of its receipt by the Chairman of the Board of
Directors or Secretary. The acceptance of a resignation shall not be necessary
to make it effective unless so specified therein. Committee members may be
removed by action of the Board of Directors, with or without cause.
SECTION 3.8 UNANIMOUS WRITTEN CONSENT
Any action authorized in writing, by all of the members of a committee and
filed with the minutes of the Company shall be the act of that committee with
the same force and effect as if the same had been passed by unanimous vote at a
duly called meeting of such committee.
SECTION 3.9 PLACE OF COMMITTEE MEETINGS
Meetings of each committee shall be held in such month on such day at such
hour and at such place as such committee may from time to time direct.
SECTION 3.10 NOTICE
Unless otherwise provided by resolution of the Board or by vote of a
majority of the members of the relevant committee, notice of committee meetings
shall be given in the same manner as notice of special meetings of the Board is
to be given under Section 2.4 of these By-Laws.
ARTICLE IV
OFFICERS AND THEIR DUTIES
SECTION 4.1 OFFICERS
The Board of Directors, at its regular annual meeting, shall elect or
appoint from their number a Chairman of the Board of Directors, the Chairmen of
Committees of the Board and may elect or appoint a Vice Chairman of the Board of
Directors and Vice Chairmen of Committees of the Board, which officers shall be
officers of the Board; and it shall elect or appoint a President, one or more
Vice Presidents, a Secretary, a Treasurer, and a Controller which officers shall
be officers of the Company. Each of said officers, subject to the provisions of
Sections 4.2 and 4.3 hereof, shall hold officer, if elected, until the meeting
of the board following the next Annual Meeting of shareholders and until his or
her successor has been elected and qualified, or, if appointed, for the term
specified in the resolution appointing him or her and until his or her successor
has been elected or appointed. Any two or more offices may be held by the same
person. Should any of the officers of the Board or the President cease to be a
director, he shall ipso facto cease to be such officer.
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SECTION 4.2 TERM OF OFFICE; RESIGNATION; REMOVAL;
VACANCIES
Except as otherwise provided in the resolution of the Board of Directors
electing or appointing any officer, all officers shall be elected or appointed
to hold office until the meeting of the Board of Directors following the next
succeeding annual meeting of shareholders. Each officer shall hold office for
the term for which he or she is elected or appointed, and until his or her
successor has been elected or appointed and qualified. Any officer may resign at
any time by giving written notice to the Board or to the Chairman of the Board
of Directors, if any, or the President or the Secretary of the Company. Such
resignation shall take effect at the time specified therein, and unless
otherwise specified therein no acceptance of such resignation shall be necessary
to make it effective. Any officer may be removed by the Board, with or without
cause, at any time. Removal of an officer without cause shall be without
prejudice to his or her contract rights, if any, with the Company, but the
election or appointment of an officer shall not of itself create contract
rights. Any vacancy occurring in any office of the Company by death,
resignation, removal or otherwise may be filled for the unexpired portion of the
term by the Board.
SECTION 4.3 POWERS AND DUTIES
The officers of the Company shall have such authority and perform such
duties in the management of the Company as may be prescribed by the Board of
Directors and, to the extent not so prescribed, as generally pertain to their
respective offices, subject to the control of the Board. Securities of other
companies held by the Company may be voted by any officer designated by the
Board and, in the absence of any such designation, by the Chairman of the Board
of Directors, the President, any Vice President, the Secretary or the Treasurer.
The Board may require any officer, agent or employee to give security for the
faithful performance of his duties.
SECTION 4.4 SALARIES
Salaries of all officers of the Company shall be fixed by the Board from
time to time; and salaries of all other employees of the Company shall be
regulated by the Chief Executive Officer.
SECTION 4.5 CHAIRMAN OF THE BOARD OF DIRECTORS
The Chairman of the Board of Directors shall preside at all meetings of
the shareholders and the Board of Directors at which he or she shall be present.
When the Chairman of the Board of Directors is also designated the Chief
Executive Officer, he or she shall have general and active management of the
business of the Company and shall see that all orders and policies of the Board
of Directors are carried into effect.
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SECTION 4.6 VICE CHAIRMAN
The Vice Chairman shall do and perform all such duties as shall be
assigned to him or her by the Chairman of the Board of Directors or required by
the Board of Directors.
SECTION 4.7 PRESIDENT
In the absence of a Chairman of the Board of Directors or should the
Chairman of the Board of Directors so direct, the President shall preside at
meetings of the shareholders and of the Board of Directors at which he or she
shall be present. In the case of the Chairman of the Board of Directors having
been designated as Chief Executive Officer, the President shall (subject to the
direction of the Chairman of the Board of Directors) exercise general control
and supervision over all the affairs of the Company and generally do and perform
those duties as usually appertain to the office of the President, or which may
be assigned to him or her by the Board of Directors. Should there be no Chairman
of the Board of Directors or should the President be designated Chief Executive
Officer of the Company, the President shall have general and active management
of the business of the Company and shall see that all orders and policies of the
Board of Directors are carried into effect; and the salaries of all employees of
the Company, other than officers, shall be regulated by him or her. If the
office of the Chairman of the Board of Directors is vacated, due to the
incumbent's death, retirement, or inability to act, or should the Directors
elect to leave such office vacant, the President shall be the Chief Executive
Officer and shall assume all the duties as outlined in Section 4.5, until
directed otherwise by the Board of Directors.
SECTION 4.8 VICE PRESIDENT
The Vice Presidents, respectively, shall do and perform all such duties as
shall be assigned to them by the Chairman of the Board of Directors or the
President or required of them by the Board of Directors. If designated by the
Board of Directors as a member of the Executive Committee, a Vice President
shall perform the duties of President in case of the President's absence or
inability to act or in case of a vacancy in that office. An Assistant Vice
President in the absence or disability of a Vice President may at the discretion
of the Chairman of the Board of Directors or the President perform the duties of
a Vice President and shall perform such other duties as may be assigned to him
or her.
SECTION 4.9 SECRETARY
It shall be the duty of the Secretary to keep and attest true records of
the proceedings of all meetings of the Board and Executive Committee, to see
that all notices are duly given in accordance with the provisions of these
By-Laws or as required by law and safely keep and account for all documents,
papers and property of the Company which may come into his or her possession. He
or she shall be the custodian of the Corporate Seal of the Company and shall
affix and attest the same whenever it is necessary and proper so to do, and
shall perform such other
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duties as may be assigned to him or her by the Board. In the absence or
disability of the Secretary, an Assistant Secretary or any Vice President shall
perform his or her duties and such other duties as may be assigned to him or
her.
SECTION 4.10 TREASURER
The Treasurer shall have the custody of all money, funds and securities of
the Company. He or she shall furnish such security for the faithful performance
of his or her duties as may be required by the Board of Directors. He or she
shall receive all money due to the Company and deposit the same in its corporate
name in such banks or trust companies as the Board of Directors shall determine.
He or she shall sign all checks, drafts or orders for the payment of money; and
perform such other duties as may be required of him or her by the Board of
Directors. An Assistant Treasurer shall, in the absence or disability of the
Treasurer, perform his or her duties and such other duties as may be assigned to
him or her. In the absence or disability of the Treasurer and Assistant
Treasurers, any Vice President shall perform his or her duties and such other
duties as may be assigned to him or her. The Treasurer shall, when directed by
the Board of Directors, open special accounts in the Company's depositories; all
checks, drafts or orders for the payment of money out of such special accounts
shall be signed in such manner and by such officers or employees of the Company
as the Board of Directors shall designate; such checks, drafts or orders for the
payment of money shall also be signed, if, as and when so directed by resolution
of the Board of Directors, by such persons and in such manner as the Board of
Directors shall determine.
SECTION 4.11 CONTROLLER
The Controller shall:
(a) Keep at the office of the Company correct books of account of all its
business and transactions;
(b) Exhibit at all reasonable times his or her books of accounts and
records to any of the directors upon application during business hours at the
office of the Company where such books and records are kept;
(c) Render a full statement of the financial condition of the Company
whenever requested so to do by the Board of Directors, the Chairman of the Board
or the President; and
(d) In general, perform such duties as may be from time to time assigned
to him or her by the Board of Directors, the Chairman of the Board or the
President.
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SECTION 4.12 OTHER OFFICERS
Other officers, including one or more additional Vice Presidents, may from
time to time be appointed by the Board of Directors or by any officer or
committee upon whom a power of appointment may be conferred by the Board of
Directors, which other officers shall have such powers and perform such duties
as may be assigned to them by the Board of Directors, the Chairman of the Board
of Directors or the President and shall hold office for such terms as may be
designated by the Board of Directors or the officer or committee appointing
them.
ARTICLE V
SHARES
CERTIFICATED SHARES
SECTION 5.1 CERTIFICATES, REGISTRAR AND TRANSFER AGENT
Certificates for shares of the capital stock of the Company shall be in
such form as shall be approved by the Board of Directors. The certificates shall
be numbered, as nearly as may be, in the order of their issue and shall be
signed by the Chairman of the Board of Directors or by the President or a Vice
President, and by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, and sealed with the seal of the Company.
SECTION 5.2 AUTHORIZATION OF FACSIMILE SIGNATURES AND SEAL
The signatures of the officers upon a certificate, and the seal of the
Company, may be facsimiles if the certificate is countersigned by a transfer
agent or registered by a registrar other than Company itself or its employee.
SECTION 5.3 TRANSFER OF CERTIFICATED SHARES
Shares of the capital stock of the Company shall be transferable by the
holder thereof in person or by duly authorized attorney upon surrender of the
certificate or certificates for such shares properly endorsed. Every certificate
of stock exchanged or returned to the Company shall be appropriately canceled. A
person in whose name shares of stock stand on the books of the Company shall be
deemed the owner thereof as regards the Company. The Board of Directors may make
such other and further rules and regulations as they may deem necessary or
proper concerning the issue, transfer and registration of stock certificates.
SECTION 5.4 LOST, STOLEN OR DESTROYED SHARE CERTIFICATES
The Company may issue a new certificate for shares in place of any
certificate theretofore issued by it, alleged to have been lost or destroyed,
and the Company may require the owner of the lost or destroyed certificate, or
such owner's legal representative, to give the Company a bond
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sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss or destruction of any such certificate or the
issuance of any such new certificate.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1 GENERAL APPLICABILITY
Except to the extent expressly prohibited by the New York Business
Corporation Law, the Company shall indemnify each person made, or threatened to
be made, a party to or involved in any action, suit or proceeding, whether
criminal or civil, administrative or investigative by reason of the fact that
such person or such person's testator or intestate is or was a Director or
Officer of the Company, against judgments, fines, penalties, amounts paid in
settlement and reasonable expenses, including attorney's fees and expenses,
reasonably incurred in enforcing such person's right to indemnification,
incurred in connection with such action or proceeding, or any appeal therein,
provided that no such indemnification shall be made if a judgment or other final
adjudication adverse to such person establishes that such person's acts were
committed in bad faith or were the result of active and deliberate dishonesty
and were material to the cause of action so adjudicated, or that such person
personally gained in fact a financial profit or other advantage to which such
person was not legally entitled, and provided further that no such
indemnification shall be required with respect to any settlement or other
nonadjudicated disposition of any threatened or pending action or proceeding
unless the Company has given its prior consent to such settlement or other
disposition.
SECTION 6.2 SCOPE OF INDEMNIFICATION
The Company promptly shall advance or reimburse upon request, after
receipt by the Company of a statement or statements from the claimant requesting
such advance or advances of reimbursements, to any person entitled to
indemnification hereunder all reasonable expenses, including attorney's fees and
expenses, reasonably incurred in defending any action or proceeding in advance
of the final disposition thereof upon receipt of an undertaking by or on behalf
of such person to repay such amount if such person is ultimately found not to be
entitled to indemnification or, where indemnification is granted, to the extent
the expenses so advanced or reimbursed exceed the amount to which such person is
entitled; provided, however, that such person shall cooperate in good faith with
any request by the Company that common counsel be used by the parties to an
action or proceeding who are similarly situated unless to do so would be
inappropriate due to actual or potential differing interests between or among
such parties.
SECTION 6.3 OTHER INDEMNIFICATION PROVISIONS
Nothing herein shall limit or affect any right of any Director, Officer or
other corporate personnel otherwise than hereunder to indemnification or
expenses, including attorney's fees,
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under any statute, rule, regulation, certificate of incorporation, by-law,
insurance policy, contract or otherwise; without affecting or limiting the
rights of any Director, Officer or other corporate personnel pursuant to this
Article VI, the Company is authorized to enter into agreements with any of its
Directors, Officers or other corporate personnel extending rights to
indemnification and advancement of expenses to the fullest extent permitted by
applicable law.
Unless limited by resolution of the Board of Directors or otherwise, the
Company shall advance the payment of expenses to the fullest extent permitted by
applicable law to, and shall indemnify, any Director, Officer or other corporate
person who is or was serving at the request of the Company, as a director,
officer, partner, trustee, employee or agent of another corporation, whether for
profit or not-for-profit, or a partnership, joint venture, trust or other
enterprise, whether or not such other enterprise shall be obligated to indemnify
such person.
SECTION 6.4 SURVIVAL OF INDEMNIFICATION
Anything in these By-Laws to the contrary notwithstanding, no elimination
or amendment of this Article VI adversely affecting the right of any person to
indemnification or advancement of expenses hereunder shall be effective until
the 60th day following notice to such person of such action, and no elimination
of or amendment to this Article VI shall deprive any such person's rights
hereunder arising out of alleged or actual occurrences, acts or failures to act
prior to such 60th day.
SECTION 6.5 INABILITY TO LIMIT INDEMNIFICATION
The Company shall not, except by elimination or amendment of this Article
VI in a manner consistent with the preceding Section 6.4 and with the provisions
of Article VIII ("Amendments to By-Laws"), take any corporate action or enter
into any agreement which prohibits, or otherwise limits the rights of any person
to, indemnification in accordance with the provisions of this Article VI. The
indemnification of any person provided by this Article VI shall continue after
such person has ceased to be a Director or Officer of the Company and shall
inure to the benefit of such person's heirs, executors, administrators and legal
representatives.
SECTION 6.6 SEVERABILITY
In case any provision in this Article VI shall be determined at any time
to be unenforceable in any respect, the other provisions of this Article VI
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Company to afford indemnification and advancement of
expenses to its Directors or Officers, acting in such capacities or in the other
capacities mentioned herein, to the fullest extent permitted by law.
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ARTICLE VII
OTHER MATTERS
SECTION 7.1 BOOKS TO BE KEPT
The Company shall keep (a) correct and complete books and records of
account, (b) minutes of the proceedings of the shareholders, Board of Directors
and Executive Committee, if any, and (c) a current list of the Directors and
Officers and their residence addresses. The Company shall also keep, at its
office located in the County of Dutchess in the State of New York or at the
office of its transfer agent or registrar in the State of New York, if any, a
record containing the names and addresses of all shareholders, the number and
class of shares held by each and the dates when they respectively became the
owners of record thereof. Any of the foregoing books, minutes or records may be
in written form or in any other form capable of being converted into written
form within a reasonable time. The Board of Directors shall, subject to the laws
of the State of New York, have power to determine from time to time, whether, to
what extent, and under what conditions and regulations the accounts and books of
the Corporation or any of them shall be open to the inspection of the
shareholders, and no shareholder shall have any right to inspect any account
book or document of the Corporation except as conferred by the laws of the State
of New York unless and until authorized so to do by resolution of the Board of
Directors or shareholders of the Corporation.
SECTION 7.2 CORPORATE SEAL
The Board of Directors may adopt a corporate seal, alter such seal at
pleasure, and authorize it to be used by causing it or a facsimile to be affixed
or impressed or reproduced in any other manner.
SECTION 7.3 WHEN NOTICE OR LAPSE OF TIME UNNECESSARY
Whenever for any reason the Company or the Board of Directors or any
committee thereof is authorized to take any action after notice to any person or
persons or after the lapse of a prescribed period of time, such action may be
taken without notice and without the lapse of such period of time if at any time
before or after such action is completed the person or persons entitled to such
notice or entitled to participate in the action to be taken or, in the case of a
shareholder, his or her attorney-in-fact, submit a signed waiver of notice of
such requirements.
SECTION 7.4 CONTRACTS, ETC., HOW EXECUTED.
The Board of Directors, except as in these By-Laws otherwise provide, may
authorize any officer or officers, agent or agents, to enter into any contract
or execute and deliver any instrument in the name of and on behalf of the
Company, and such authority may be general or confined to specific instances,
and, unless so authorized by the Board of Directors, no officer or agent or
employee shall have any power or authority to bind the Company by any contract
or
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engagement or to pledge its credits or to render it liable pecuniarily for any
purpose or to any amount.
SECTION 7.5 LOANS.
No loans shall be contracted on behalf of the Company and no negotiable
paper shall be issued in its name, unless authorized by the vote of the Board of
Directors. When so authorized, any officer or agent of the Company may effect
loans and advances for the Company from any bank, trust company or other
institution, or from any firm, Company or individual and for such loans and
advances may make, execute and deliver promissory notes, bonds or other
evidences of indebtedness of the Company. When so authorized any officer or
agent of the Company, as security for the payment of any and all loans,
advances, indebtedness and liabilities of the Company, may pledge, hypothecate
or transfer any and all stocks, securities and other personal property at any
time held by the Company, and to that end endorse, assign and deliver the same.
Such authority may be general or confined to specific instances. The Board of
Directors may authorize any mortgage or pledge of, or the creation of a security
interest in, all or any part of the corporate property, or any interest therein,
wherever situated.
SECTION 7.6. DEPOSITS.
All funds of the Company shall be deposited from time to time to its
credit in such banks, trust companies or other depositaries as the Board of
Directors may select, or as may be selected by an officer or officers, agent or
agents of the Company to whom such power, from time to time, may be delegated by
the Board of Directors and, for the purpose of such deposit, checks, drafts and
other orders for the payment of money which are payable to the order of the
Company may be endorsed, assigned and delivered by the President or a Vice
President, or the Treasurer or the Secretary, or by any officer, agent or
employee of the Company to whom any of said officers, or the Board of Directors,
by resolution, shall have delegated such power.
SECTION 7.7 GENERAL AND SPECIAL BANK ACCOUNTS.
The Board of Directors may from time to time authorize the opening and
keeping of general and special bank accounts with such banks, trust companies or
other depositaries as the Board may select and may make such special rules and
regulations with respect thereto, as it may deem expedient.
SECTION 7.8 FISCAL YEAR.
The fiscal year of the Company shall be the calendar year.
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<PAGE>
ARTICLE VIII
AMENDMENTS TO BY-LAWS
SECTION 8.1 BY DIRECTORS
By-Laws may be adopted, amended, or repealed or new By-Laws may be adopted
by the vote of a majority of the entire Board of Directors at any regular or
special meeting of the Board at which a quorum is present; provided, however,
that any adoption of, amendment to or repeal of any new By-Law or provision
inconsistent with Article I (Section 1.2 - "Special meetings", 1.4 - "Presiding
at Meetings" or 1.12 - "Notice of Shareholder Business and Nominations"),
Article II (Section 2.1 - "Number of Directors", 2.2 - "Elections, Terms and
Vacancies" or 2.8 - "Removal of Directors"), Article VI - "Indemnification" or
this Article VIII -"Amendments to By-Laws" hereof, if by action of the Board,
shall be only upon the approval of not less than two-thirds of the entire Board
at any such regular or special meeting of the Board of Directors.
SECTION 8.2 BY SHAREHOLDERS
By-Laws may be adopted, amended, or repealed by the vote of a majority of
the shareholders entitled to vote in the election of any Directors (as herein
provided) at any annual or special shareholders' meeting at which a quorum is
present, if notice of such proposed action shall have been given in accordance
with the notice requirements of Section 1.12 of these By-Laws; provided,
however, that any adoption of, amendment to or repeal of any new By-Laws or
provision inconsistent with Article I (Section 1.2 -"Special meetings", 1.4
"Presiding at Meetings" or 1.12 - "Notice of Shareholder Business and
Nominations"), Article II (Section 2.1 - "Number of Directors", 2.2 - -
"Elections, Terms and Vacancies" or 2.8 - "Removal of Directors"), Article VI -
- - - "Indemnification" or this Article VIII - "Amendments to By-Laws" hereof, if by
action of shareholders, shall be only upon the affirmative vote of not less than
80% of the shares entitled to vote thereon at such annual or special
shareholders' meeting at which any such action is proposed.
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<PAGE>
EXHIBIT 5
GOULD & WILKIE LLP
ONE CHASE MANHATTAN PLAZA, 58TH FLOOR
NEW YORK, NEW YORK 10005-1401
November 16, 1999
CH Energy Group, Inc.
284 South Avenue
Poughkeepsie, NY 12601-4879
Ladies and Gentlemen:
We have acted as counsel for CH Energy Group, Inc. (the "Holding Company")
in connection with the preparation of a Registration Statement on Form S-4 (the
"Registration Statement"), filed with the Securities and Exchange Commission for
the purpose of registering under the Securities Act of 1933, as amended (the
"Securities Act"), 200,000 shares of Common Stock, $.10 par share, of the
Holding Company (the "Holding Company Common Stock") which are proposed to be
issued upon the consummation of, and subsequent to, the share exchange
contemplated by that certain Agreement and Plan of Exchange between the Holding
Company and Central Hudson Gas & Electric Corporation, dated as of April 24,
1998 (the "Plan of Exchange"), filed as Exhibit A to the Proxy Statement and
Prospectus, which forms a part of the Prior Registration Statement incorporated
by reference into the Registration Statement. All capitalized terms not
otherwise defined hereunder have the same meanings as defined in the
Registration Statement.
As counsel to the Holding Company, we are generally familiar with its
corporate proceedings and have examined the Registration Statement and the Plan
of Exchange and such other documents as we have deemed relevant and necessary as
a basis for the opinion hereinafter set forth. In addition, we have made such
other and further investigations as we have deemed relevant and necessary as a
basis for the opinion hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
Based on the foregoing and upon such further examination of corporate
records and documents and matters of law as we have considered necessary or
desirable for the purpose of this opinion, it is our opinion that the Holding
Company Common Stock, when issued in accordance with
<PAGE>
CH Energy Group, Inc.
November 16, 1999
Page 2.
the terms of the Plan of Exchange, at the Effective Time of the Share Exchange,
will be validly issued, fully paid and non-assessable.
We express no opinion other than as to the federal laws of the United
States of America and the law of the State of New York.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and the reference to us under the heading "Validity of
the Holding Company Common Stock" in the Proxy Statement and Prospectus included
in the Prior Registration Statement.
Very truly yours,
GOULD & WILKIE LLP
WPR:lan
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<PAGE>
EXHIBIT 8
GOULD & WILKIE LLP
ONE CHASE MANHATTAN PLAZA, 58TH FLOOR
NEW YORK, NEW YORK 10005-1401
November 16, 1999
CH Energy Group, Inc.
284 South Avenue
Poughkeepsie, NY 12601-4879
Ladies and Gentlemen:
We have acted as counsel for CH Energy Group, Inc. (the "Holding Company")
in connection with the preparation of a Registration Statement on Form S-4 (the
"Registration Statement"), filed with the Securities and Exchange Commission for
the purpose of registering under the Securities Act of 1933, as amended (the
"Securities Act"), 200,000 shares of Common Stock, $.10 par share, of the
Holding Company (the "Holding Company Common Stock") which are proposed to be
issued upon the consummation of, and subsequent to, the share exchange
contemplated by that certain Agreement and Plan of Exchange between the Holding
Company and Central Hudson Gas & Electric Corporation, dated as of April 24,
1998 (the "Plan of Exchange"), filed as Exhibit A to the Proxy Statement and
Prospectus, which forms a part of the Prior Registration Statement incorporated
by reference into the Registration Statement. All capitalized terms not
otherwise defined hereunder have the same meanings as defined in the
Registration Statement.
As counsel to the Holding Company, we are generally familiar with its
corporate proceedings and have examined the Registration Statement and the Plan
of Exchange and such other documents as we have deemed relevant and necessary as
a basis for the opinion hereinafter set forth. In addition, we have made such
other and further investigations as we have deemed relevant and necessary as a
basis for the opinion hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
Based on the foregoing and upon such further examination of corporate
records and documents and matters of law as we have considered necessary or
desirable for the purposes of this opinion, it is our opinion that the
statements made in the Prior Registration Statement under the caption "THE SHARE
EXCHANGE-Certain Federal Income Tax Consequences," insofar as they
<PAGE>
CH Energy Group, Inc.
November 16, 1999
Page 2.
purport to constitute summaries of matters of United States federal tax law and
regulations or legal conclusions with respect thereto, constitute our opinion as
the matters described therein.
The opinion expressed herein is limited to applicable United States
federal law and we express no opinion as to the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 8 to the
Registration Statement and the reference to us under the heading "THE SHARE
EXCHANGE -Certain Federal Income Tax Consequences" in the Proxy Statement and
Prospectus included in the Prior Registration Statement.
Very truly yours,
GOULD & WILKIE LLP
WPR:lan
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<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement of our report dated January 29,
1999 relating to the financial statements, which appears in Central Hudson Gas &
Electric Corporation's Annual Report on Form 10-K for the year ended December
31, 1998. We also consent to the reference to us under the heading "Experts" in
such Registration Statement.
PricewaterhouseCoopers LLP
New York, New York
November 16, 1999
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that I, JOHN E. MACK III, a director of CH
Energy Group, Inc., have made, constituted and appointed, and by these presents
do make, constitute and appoint, PAUL J. GANCI, STEVEN V. LANT, DONNA S. DOYLE,
WILLIAM P. REILLY, and each of them, my true and lawful attorneys, for me and in
my name, place and stead, and in my office and capacity as aforesaid, to sign
and file with the Securities and Exchange Commission a Registration Statement,
on Form S-4, pursuant to the Securities Exchange Act of 1933, relating to
200,000 additional shares of Common Stock of CH Energy Group, Inc., for a
proposed share exchange transaction with Central Hudson Gas & Electric
Corporation, and any and all amendments to said Registration Statement and any
and all other documents to be signed and filed in connection therewith, hereby
granting to said attorneys, and each of them, full power and authority to do and
perform each and every act and thing whatsoever requisite and necessary to be
done in the premises as fully, to all intents and purposes, as I might or could
do if personally present, hereby ratifying and confirming in all respects all
that said attorneys or any of them may or shall lawfully do or cause to be done
by virtue thereof.
IN WITNESS WHEREOF, I have set my hand and seal this 3rd day of Nov.,
1999.
/S/ JOHN E. MACK III L.S.
-------------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS)
On this _____ day of ______, 1999, before me personally came
______________, to me known and known to me to be the individual described in
and who executed the foregoing instrument, and duly acknowledged to me that he
executed the same.
_________________________________ L.S.
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<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that I, PAUL J. GANCI, a director and
Chairman of the Board, President and Chief Executive Officer, of CH Energy
Group, Inc., have made, constituted and appointed, and by these presents do
make, constitute and appoint, STEVEN V. LANT, DONNA S. DOYLE, WILLIAM P. REILLY,
and each of them, my true and lawful attorneys, for me and in my name, place and
stead, and in my office and capacity as aforesaid, to sign and file with the
Securities and Exchange Commission a Registration Statement, on Form S-4,
pursuant to the Securities Exchange Act of 1933, relating to 200,000 additional
shares of Common Stock of CH Energy Group, Inc., for a proposed share exchange
transaction with Central Hudson Gas & Electric Corporation, and any and all
amendments to said Registration Statement and any and all other documents to be
signed and filed in connection therewith, hereby granting to said attorneys, and
each of them, full power and authority to do and perform each and every act and
thing whatsoever requisite and necessary to be done in the premises as fully, to
all intents and purposes, as I might or could do if personally present, hereby
ratifying and confirming in all respects all that said attorneys or any of them
may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have set my hand and seal this 15th day of
November, 1999.
/S/ PAUL J. GANCI L.S.
---------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS)
On this 15th day of November, 1999, before me personally came Paul J.
Ganci, to me known and known to me to be the individual described in and who
executed the foregoing instrument, and duly acknowledged to me that he executed
the same.
/s/ Beth Allen L.S.
------------------
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<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that I, STEVEN V. LANT, Chief Financial
Officer, Treasurer and Secretary, of CH Energy Group, Inc., have made,
constituted and appointed, and by these presents do make, constitute and
appoint, PAUL J. GANCI, DONNA S. DOYLE, WILLIAM P. REILLY, and each of them, my
true and lawful attorneys, for me and in my name, place and stead, and in my
office and capacity as aforesaid, to sign and file with the Securities and
Exchange Commission a Registration Statement, on Form S-4, pursuant to the
Securities Exchange Act of 1933, relating to 200,000 additional shares of Common
Stock of CH Energy Group, Inc., for a proposed share exchange transaction with
Central Hudson Gas & Electric Corporation, and any and all amendments to said
Registration Statement and any and all other documents to be signed and filed in
connection therewith, hereby granting to said attorneys, and each of them, full
power and authority to do and perform each and every act and thing whatsoever
requisite and necessary to be done in the premises as fully, to all intents and
purposes, as I might or could do if personally present, hereby ratifying and
confirming in all respects all that said attorneys or any of them may or shall
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have set my hand and seal this 15th day of
November, 1999.
/S/ STEVEN V. LANT L.S.
-----------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS)
On this 15th day of November, 1999, before me personally came Steven V.
Lant, to me known and known to me to be the individual described in and who
executed the foregoing instrument, and duly acknowledged to me that he executed
the same.
/s/ Beth Allen L.S.
--------------------
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<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that I, DONNA S. DOYLE, Controller of CH
Energy Group, Inc., have made, constituted and appointed, and by these presents
do make, constitute and appoint, PAUL J. GANCI, STEVEN V. LANT, WILLIAM P.
REILLY, and each of them, my true and lawful attorneys, for me and in my name,
place and stead, and in my office and capacity as aforesaid, to sign and file
with the Securities and Exchange Commission a Registration Statement, on Form
S-4, pursuant to the Securities Exchange Act of 1933, relating to 200,000
additional shares of Common Stock of CH Energy Group, Inc., for a proposed share
exchange transaction with Central Hudson Gas & Electric Corporation, and any and
all amendments to said Registration Statement and any and all other documents to
be signed and filed in connection therewith, hereby granting to said attorneys,
and each of them, full power and authority to do and perform each and every act
and thing whatsoever requisite and necessary to be done in the premises as
fully, to all intents and purposes, as I might or could do if personally
present, hereby ratifying and confirming in all respects all that said attorneys
or any of them may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, I have set my hand and seal this 15th day of
November, 1999.
/S/ DONNA S. DOYLE L.S.
-----------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF DUTCHESS)
On this 15th day of November, 1999, before me personally came Donna S.
Doyle, to me known and known to me to be the individual described in and who
executed the foregoing instrument, and duly acknowledged to me that he executed
the same.
/s/ Beth Allen L.S.
------------------
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<PAGE>
