As filed with the Securities and Exchange Commission on September 29, 1998
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K/A
AMENDMENT NO. 2
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event report): SEPTEMBER 29, 1998
MARKETSPAN CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
NEW YORK
(State or Other Jurisdiction of Incorporation)
1-14161 11-3431358
(Commission File Number) (IRS Employer Identification No.)
175 East Old Country Road, Hicksville, New York 11801
One MetroTech Center, Brooklyn, New York 11201
(Address of Principal Executive Offices) (Zip Code)
(516) 755-6650 (Hicksville)
(718) 403-1000 (Brooklyn)
(Registrant's Telephone Number, Including Area Code)
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The registrant hereby amends and supplements the following items of its Current
Report on Form 8-K dated August 24, 1998, as amended:
Item 4. CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT.
On September 10, 1998, the Board of Directors of MarketSpan
Corporation (the "Company"), on recommendation of the Company's Audit Committee,
named Arthur Andersen LLP as independent public accountants for the Company for
its fiscal year ending December 31, 1998 (see Item 8 below). Arthur Andersen LLP
were independent public accountants for KeySpan Energy Corporation ("KeySpan")
and The Brooklyn Union Gas Company ("Brooklyn Union"), and Ernst & Young LLP
were independent public accountants for the Long Island Lighting Company
("LILCO"), during such corporations' respective fiscal years prior to the
consummation of the LILCO/KeySpan/Long Island Power Authority ("LIPA")
transactions on May 28, 1998.
During the past two fiscal years, there has been no report on the financial
statements of KeySpan and Brooklyn Union by Arthur Andersen LLP or of LILCO by
Ernst & Young LLP, which contained an adverse opinion or a disclaimer of
opinion, or was qualified or modified as to uncertainty, audit scope, or
accounting principles. During the past two fiscal years and the interim period
through September 10, 1998, there have been no disagreements or "reportable
events" as described in Items 304(a)(1)(iv) and (v) of Regulation S-K concerning
any matter of accounting principles or practices, financial statement
disclosure, auditing scope or procedure or otherwise, required to be disclosed
by this Item.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits:
*3.1 By-Laws of MarketSpan Corporation, as amended, filed herewith.
*16 Letter from Ernst & Young LLP to the Securities and Exchange
Commission dated September 29, 1998, agreeing with the
statements contained in Item 4 of the Company's Form 8-K/A No.
2, dated September 29, 1998, regarding a change in the
certifying accountant, filed herewith.
* Filed Herewith
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MARKETSPAN CORPORATION
Dated: September 29, 1998 By: /s/ Craig G. Matthews
---------------------------
Name: Craig G. Matthews
Title: Executive Vice President and
Chief Financial Officer
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INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION PAGE
3.1 By-Laws of MarketSpan Corporation, 5
as amended.
16 Letter from Ernst & Young LLP to the 17
Securities and Exchange Commission
dated September 29, 1998, agreeing with
the statements contained in Item 4 of the
Company's Form 8-K/A No. 2 dated September
29, 1998, regarding a change in the
certifying accountant.
Exhibit 3.1
BY-LAWS
OF
MARKETSPAN CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF NEW YORK
IN EFFECT ON SEPTEMBER 10, 1998
ARTICLE I
OFFICES AND RECORDS
SECTION 1.1. NEW YORK OFFICES. The offices of the Corporation in the State
of New York shall be located in the Counties of Nassau and Kings.
SECTION 1.2. OTHER OFFICES. The Corporation may have such other
offices, either within or without the State of New York, as the Board of
Directors may designate or as the business of the Corporation may from time to
time require.
SECTION 1.3. BOOKS AND RECORDS. The books and records of the
Corporation may be kept outside the State of New York at such place or places as
may from time to time be designated by the Board of Directors.
ARTICLE II
SHAREHOLDERS
SECTION 2.1. ANNUAL MEETING. The annual meeting of the shareholders of the
Corporation shall be held on such date and at such time as may be fixed by
resolution of the Board of Directors.
SECTION 2.2. SPECIAL MEETING. Except as otherwise required by law
and subject to the rights of the holders of any class or series of stock having
a preference over the Common Stock as to dividends or upon liquidation, special
meetings of shareholders of the Corporation for any purpose or purposes may be
called only by the Board of Directors pursuant to a resolution stating the
purpose or purposes thereof approved by a majority of the total number of
Directors which the Corporation would have if there were no vacancies (the
"Whole Board").
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SECTION 2.3. PLACE OF MEETING. The Board of Directors shall
designate the place of meeting for any annual meeting or for any special meeting
of the shareholders. If no designation is so made, the place of meeting shall be
either principal office of the Corporation.
SECTION 2.4. NOTICE OF MEETING. Written or printed notice, stating
the place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered by the Corporation not less than 10
calendar days nor more than 60 calendar days before the date of the meeting,
either personally or by mail, to each shareholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail with postage thereon prepaid, addressed to
the shareholder at such person's address as it appears on the stock transfer
books of the Corporation. Such further notice shall be given as may be required
by law. Only such business shall be conducted at a special meeting of
shareholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Meetings may be held without notice if all
shareholders entitled to vote are present, or if notice is waived by those not
present in accordance with Section 6.4 of these By-Laws. Any previously
scheduled meeting of the shareholders may be postponed, and any special meeting
of the shareholders may be canceled, by resolution of the Board of Directors
upon public notice given prior to the date previously scheduled for such meeting
of shareholders.
SECTION 2.5. QUORUM AND ADJOURNMENT; VOTING. Except as otherwise
provided by law or by the Certificate of Incorporation, the holders of a
majority of the voting power of all outstanding shares of the Corporation
entitled to vote generally in the election of Directors (the "Voting Stock"),
represented in person or by proxy, shall constitute a quorum at a meeting of
shareholders, except that when specified business is to be voted on by a class
or series of stock voting as a class, the holders of a majority of the shares of
such class or series shall constitute a quorum of such class or series for the
transaction of such business. The Chairman of the meeting may adjourn the
meeting from time to time, whether or not there is such a quorum. No notice of
the time and place of adjourned meetings need be given except as required by
law. The shareholders present at a duly called meeting at which a quorum is
present may continue to transact business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
SECTION 2.6. PROXIES. At all meetings of shareholders, a shareholder
may vote by proxy executed in writing (or in such manner prescribed by the New
York Business Corporation Law (the "NYBCL")) by the shareholder, or by such
person's duly authorized attorney in fact.
SECTION 2.7. NOTICE OF SHAREHOLDER BUSINESS AND NOMINATIONS.
(A) ANNUAL MEETINGS OF SHAREHOLDERS. (1) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the shareholders may be made at an annual meeting
of shareholders (a) pursuant to the Corporation's notice of meeting pursuant to
Section 2.4 of these By-Laws, (b) by or at the direction of the Board of
Directors or (c) by any shareholder of the Corporation who was a shareholder of
record at the
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time of giving of notice provided for in this By-Law, who is entitled to vote at
the meeting and who complies with the notice procedures set forth in this
By-Law.
(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 By-Law, the shareholder must have given timely notice thereof in writing to
the Secretary of the Corporation 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
Corporation not later than the close of business on the 60th calendar day nor
earlier than the close of business on the 90th calendar 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 calendar days
before or more than 60 calendar 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 calendar day prior to such annual meeting and not later
than the close of business on the later of the 60th calendar day prior to such
annual meeting or the 10th calendar day following the calendar day on which
public announcement of the date of such meeting is first made by the
Corporation. For purposes of determining whether a shareholder's notice shall
have been delivered in a timely manner for the annual meeting of shareholders in
1999, the first anniversary of the previous year's meeting shall be deemed to be
May 14, 1999. 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
Corporation's books, and of such beneficial owner and (ii) the class and number
of shares of the Corporation 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 ByLaw to the contrary, in the event that the number of Directors
to be elected to the Board of Directors of the Corporation is increased and
there is no public announcement by the Corporation naming all of the nominees
for Director or specifying the size of the increased Board of Directors at least
70 calendar days prior to the first anniversary of the preceding year's annual
meeting, a shareholder's notice required by this By-Law 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
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at the principal executive offices of the Corporation not later than the close
of business on the 10th calendar day following the day on which such public
announcement is first made by the Corporation.
(B) SPECIAL MEETINGS OF SHAREHOLDERS. Nominations of persons for
election to the Board of Directors may be made at a special meeting of
shareholders at which Directors are to be elected pursuant to the Corporation'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 Corporation who is a
shareholder of record at the time of giving of notice provided for in this
By-Law, who shall be entitled to vote at the meeting and who complies with the
notice procedures set forth in this By-Law. In the event the Corporation calls a
special meeting of shareholders for the purpose of electing one or more
Directors to the Board of Directors, any shareholder may nominate a person or
persons (as the case may be), for election to such position(s) as specified in
the Corporation's notice of meeting pursuant to clause (b) of the preceding
sentence, if the shareholder's notice complying with the requirements of clauses
(a) and (c) of paragraph (A)(2) of this By-Law shall be delivered to the
Secretary at the principal executive offices of the Corporation not earlier than
the close of business on the 90th calendar day prior to such special meeting and
not later than the close of business on the later of the 60th calendar day prior
to such special meeting or the 10th calendar day following the day on which
public announcement 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 By-Law shall be eligible to serve as
Directors and only such business shall be conducted at a meeting of shareholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this By-Law. Except as otherwise provided by law, the Certificate
of Incorporation or these By-Laws, 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 By-Law and, if any proposed
nomination or business is not in compliance with this By-Law, to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-Law, "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
Corporation 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 By-Law, 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 By-Law. Nothing in this By-Law shall be deemed to affect any
rights (i) of shareholders to request inclusion of proposals in the
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Corporation'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 an
applicable Preferred Stock Designation (as defined in the Certificate of
Incorporation).
SECTION 2.8. PROCEDURE FOR ELECTION OF DIRECTORS; REQUIRED VOTE.
Election of Directors at all meetings of the shareholders at which Directors are
to be elected shall be by ballot, and, subject to the rights of the holders of
any series of Preferred Stock to elect Directors under an applicable Preferred
Stock Designation, a plurality of the votes cast thereat shall elect Directors.
Except as otherwise provided by law, the Certificate of Incorporation, Preferred
Stock Designation, or these By-Laws, in all matters other than the election of
Directors, the affirmative vote of a majority of the voting power of the shares
present in person or represented by proxy at the meeting and entitled to vote on
the matter shall be the act of the shareholders.
SECTION 2.9. INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE POLLS.
The Board of Directors by resolution shall appoint, or shall authorize an
officer of the Corporation to appoint, one or more inspectors, which inspector
or inspectors may include individuals who serve the Corporation 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
faithfully to execute 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 2.10. NO SHAREHOLDER ACTION BY WRITTEN CONSENT. Any action
required or permitted to be taken by the shareholders of the Corporation must be
effected at a duly called annual or special meeting of such holders and may not
be effected by any consent in writing by such holders.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1. GENERAL POWERS. The business and affairs of the
Corporation shall be managed under the direction of the Board of Directors. In
addition to the powers and authorities by these By-Laws expressly conferred upon
them, the Board of Directors may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these By-Laws required to be exercised or done by the
shareholders. A Director of this Corporation need not be a shareholder therein.
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SECTION 3.2. NUMBER AND TENURE. Except as otherwise fixed by or
pursuant to the provisions of Article IV of the Certificate of Incorporation
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
additional Directors under specified circumstances, the number of the Directors
of the Corporation shall be fixed from time to time exclusively pursuant to a
resolution adopted by a majority of the Whole Board. No decrease in the number
of Directors, however, shall shorten the term of any incumbent Director.
Directors shall be elected by the shareholders of the Corporation at their
annual meeting, except as herein otherwise provided for vacancies and newly
created directorships, in the manner provided in Article II hereof, to serve for
one year or until their successors are elected or chosen and qualified.
SECTION 3.3. REGULAR MEETINGS. A regular meeting of the Board of
Directors shall be held without other notice than this By-Law immediately after,
and at the same place as, the annual meeting of shareholders. The Board of
Directors may, by resolution, provide the time and place for the holding of
additional regular meetings without other notice than such resolution.
SECTION 3.4. SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be called at the request of the Chairman of the Board, the
President or a majority of the Board of Directors then in office. The person or
persons authorized to call special meetings of the Board of Directors may fix
the place and time of the meetings.
SECTION 3.5. NOTICE. Notice of any special meeting of Directors
shall be given to each Director at such person's business or residence in
writing by hand delivery, first-class or overnight mail or courier service,
telegram or facsimile transmission, or orally by telephone. If mailed by
first-class mail, such notice shall be deemed adequately delivered when
deposited in the United States mails so addressed, with postage thereon prepaid,
at least 5 calendar days before such meeting. If by telegram, overnight mail or
courier service, such notice shall be deemed adequately delivered when the
telegram is delivered to the telegraph company or the notice is delivered to the
overnight mail or courier service company at least 24 hours before such meeting.
If by facsimile transmission, such notice shall be deemed adequately delivered
when the notice is transmitted at least 12 hours before such meeting. If by
telephone or by hand delivery, the notice shall be given at least 12 hours prior
to the time set for the meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice of such meeting, except for amendments to these By-Laws.
A meeting may be held at any time without notice if all the Directors are
present or if those not present waive notice of the meeting either before or
after such meeting.
SECTION 3.6. ACTION BY CONSENT OF BOARD OF DIRECTORS. Any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting if all members of the Board
or committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
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SECTION 3.7. CONFERENCE TELEPHONE MEETINGS. Members of the Board of
Directors or any committee thereof may participate in a meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
SECTION 3.8. QUORUM. Subject to Section 3.9, a whole number of
Directors equal to at least a majority of the Whole Board shall constitute a
quorum for the transaction of business, but if at any meeting of the Board of
Directors there shall be less than a quorum present, a majority of the Directors
present may adjourn the meeting from time to time without further notice. The
act of the majority of the Directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors. The Directors present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough Directors to leave less than a quorum.
SECTION 3.9. VACANCIES. Except as otherwise provided for or fixed by
or pursuant to the provisions of Article IV of the Certificate of Incorporation
relating to the rights of the holders 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, newly created directorships resulting
from any increase in the number of Directors and any vacancies on the Board of
Directors resulting from death, resignation, disqualification, removal or other
cause shall be filled by the affirmative vote of a majority of the remaining
Directors then in office, even though less than a quorum of the Board of
Directors. Any Director elected in accordance with the preceding sentence shall
hold office for the remainder of such unexpired term or until such Director's
successor shall have been duly elected or chosen and qualified. No decrease in
the number of Directors constituting the Board of Directors shall shorten the
term of any incumbent Director.
SECTION 3.10. COMMITTEES. (a) The Board of Directors may, by
resolution adopted by a majority of the Whole Board, designate committees to
exercise, subject to applicable provisions of law, any or all the powers of the
Board in the management of the business and affairs of the Corporation when the
Board is not in session, including without limitation the power to declare
dividends and to authorize the issuance of the Corporation's capital stock. Each
such committee shall consist of two or more Directors of the Corporation. The
Board may designate one or more Directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. Any such committee may to the extent permitted by law exercise such
powers and shall have such responsibilities as shall be specified in the
designating resolution. In the absence or disqualification of any member of such
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not constituting a quorum, may
unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Each committee shall keep
written minutes of its proceedings and shall report such proceedings to the
Board when required.
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(b) A majority of any committee may determine its action and fix the
time and place of its meetings, unless the Board shall otherwise provide. Notice
of such meetings shall be given to each member of the committee in the manner
provided for in Section 3.5 of these By-Laws. The Board shall have power at any
time to fill vacancies in, to change the membership of, or to dissolve any such
committee. Nothing herein shall be deemed to prevent the Board from appointing
one or more committees consisting in whole or in part of persons who are not
Directors of the Corporation; provided, however, that no such committee shall
have or may exercise any authority of the Board.
SECTION 3.11. REMOVAL. 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 Director may
be removed from office only for cause by the affirmative vote of the holders of
at least a majority of the voting power of all Voting Stock then outstanding,
voting together as a single class.
SECTION 3.12. RECORDS. The Board of Directors shall cause to be kept
a record containing the minutes of the proceedings of the meetings of the Board
and of the shareholders, appropriate stock books and registers and such books of
records and accounts as may be necessary for the proper conduct of the business
of the Corporation.
ARTICLE IV
OFFICERS
SECTION 4.1. ELECTED OFFICERS. The elected officers of the
Corporation shall be a Chairman of the Board of Directors, a Chief Executive
Officer, a President, a Secretary, a Treasurer, and such other officers
(including, without limitation, Senior Vice Presidents and Executive Vice
Presidents and Vice Presidents) as the Board of Directors from time to time may
deem proper. The Chairman of the Board shall be chosen from among the Directors.
All officers elected by the Board of Directors shall each have such powers and
duties as generally pertain to their respective offices, subject to the specific
provisions of this Article IV. Such officers shall also have such powers and
duties as from time to time may be conferred by the Board of Directors or by any
committee thereof. The Board or any committee thereof may from time to time
elect such other officers (including one or more Vice Presidents, Controllers,
Assistant Secretaries and Assistant Treasurers), as may be necessary or
desirable for the conduct of the business of the Corporation. Such other
officers and agents shall have such duties and shall hold their offices for such
terms as shall be provided in these By-Laws or as may be prescribed by the Board
or such committee, as the case may be.
SECTION 4.2. ELECTION AND TERM OF OFFICE. The elected officers of
the Corporation shall be elected annually by the Board of Directors at the
regular meeting of the Board of Directors held after the annual meeting of the
shareholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as convenient. Each officer shall
hold
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office until such person's successor shall have been duly elected and shall have
qualified or until such person's death or until he shall resign or be removed
pursuant to Section 4.9.
SECTION 4.3. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the shareholders and of the Board of Directors. The
Chairman of the Board shall perform all such other duties as are properly
required of him by the Board of Directors. The Chairman of the Board may also
serve as President, if so elected by the Board. The Directors also may elect a
Vice-Chairman to act in the place of the Chairman upon his absence or inability
to act.
SECTION 4.4. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of
the Corporation shall be responsible for the general management of the affairs
of the Corporation and shall make reports to the Board of Directors and the
shareholders, and shall see that all orders and resolutions of the Board of
Directors and of any committee thereof are carried into effect.
SECTION 4.5. PRESIDENT. The President shall act in a general
executive capacity and shall assist the Chief Executive Officer in the
administration and operation of the Corporation's business and general
supervision of its policies and affairs. The President, if he or she is also a
Director, shall, in the absence of or because of the inability to act as the
Chairman of the Board, perform all duties of the Chairman of the Board and
preside at all meetings of shareholders and of the Board of Directors.
SECTION 4.6. VICE PRESIDENTS. Each Senior Vice President and
Executive Vice President and any Vice President shall have such powers and shall
perform such duties as shall be assigned to him or her by the Board of
Directors.
SECTION 4.7. TREASURER. The Treasurer shall exercise general
supervision over the receipt, custody and disbursement of corporate funds. The
Treasurer shall cause the funds of the Corporation to be deposited in such banks
as may be authorized by the Board of Directors, or in such banks as may be
designated as depositories in the manner provided by resolution of the Board of
Directors. The Treasurer shall have such further powers and duties and shall be
subject to such directions as may be granted or imposed from time to time by the
Board of Directors.
SECTION 4.8. SECRETARY. (a) The Secretary shall keep or cause to be
kept in one or more books provided for that purpose, the minutes of all meetings
of the Board, the committees of the Board and the shareholders; the Secretary
shall see that all notices are duly given in accordance with the provisions of
these By-Laws and as required by law; shall be custodian of the records and the
seal of the Corporation and affix and attest the seal to all stock certificates
of the Corporation (unless the seal of the Corporation on such certificates
shall be a facsimile, as hereinafter provided) and affix and attest the seal to
all other documents to be executed on behalf of the Corporation under its seal;
and shall see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly kept and
filed; and in general, shall perform all the duties incident to the office of
Secretary and such other duties as from time to time may be assigned to the
Secretary by the Board.
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(b) Assistant Secretaries shall have such of the authority and
perform such of the duties of the Secretary as may be provided in these By-Laws
or assigned to them by the Board of Directors or by the Secretary. During the
Secretary's absence or inability, the Secretary's authority and duties shall be
possessed by such Assistant Secretary or Assistant Secretaries as the Board of
Directors may designate.
SECTION 4.9. REMOVAL. Any officer elected, or agent appointed, by
the Board of Directors may be removed by the affirmative vote of a majority of
the Whole Board whenever, in their judgment, the best interests of the
Corporation would be served thereby. No elected officer shall have any
contractual rights against the Corporation for compensation by virtue of such
election beyond the date of the election of such person's successor, such
person's death, such person's resignation or such person's removal, whichever
event shall first occur, except as otherwise provided in an employment contract
or under an employee deferred compensation plan.
SECTION 4.10. VACANCIES. A newly created elected office and a
vacancy in any elected office because of death, resignation, or removal may be
filled by the Board of Directors for the unexpired portion of the term at any
meeting of the Board of Directors.
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
SECTION 5.1. STOCK CERTIFICATES AND TRANSFERS. The interest of each
shareholder of the Corporation shall be evidenced by certificates for shares of
stock in such form as the appropriate officers of the Corporation may from time
to time prescribe. The shares of the stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof in person or
by such person's attorney, upon surrender for cancellation of certificates for
at least the same number of shares, with an assignment and power of transfer
endorsed thereon or attached thereto, duly executed, with such proof of the
authenticity of the signature as the Corporation or its agents may reasonably
require. The certificates of stock shall be signed, countersigned and registered
in such manner as the Board of Directors may by resolution prescribe, which
resolution may permit all or any of the signatures on such certificates to be in
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate has ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
SECTION 5.2. LOST, STOLEN OR DESTROYED CERTIFICATES. No certificate
for shares of stock in the Corporation shall be issued in place of any
certificate alleged to have been lost, destroyed or stolen, except on production
of such evidence of such loss, destruction or theft and on delivery to the
Corporation of a bond of indemnity in such amount, upon such terms and secured
by such surety, as the Board of Directors or any financial officer may in its or
such person's discretion require.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1. FISCAL YEAR. The fiscal year of the Corporation shall begin on
the first day of January and end on the thirty-first day of December of each
year.
SECTION 6.2. DIVIDENDS. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and the Certificate of
Incorporation.
SECTION 6.3. SEAL. The corporate seal shall have inscribed thereon the
words "Corporate Seal," the year of incorporation and around the margin thereof
the words "New York."
SECTION 6.4. WAIVER OF NOTICE. Whenever any notice is required to be
given to any shareholder or Director of the Corporation under the provisions of
the NYBCL or these ByLaws, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice. Neither the
business to be transacted at, nor the purpose of, any annual or special meeting
of the shareholders or the Board of Directors or committee thereof need be
specified in any waiver of notice of such meeting.
SECTION 6.5. AUDITS. The accounts, books and records of the
Corporation shall be audited upon the conclusion of each fiscal year by an
independent certified public accountant selected by the Board of Directors, and
it shall be the duty of the Board of Directors to cause such audit to be done
annually.
SECTION 6.6. RESIGNATIONS. Any Director or any officer, whether
elected or appointed, may resign at any time by giving written notice of such
resignation to the Chairman of the Board, the Chief Executive Officer, the
President or the Secretary, and such resignation shall be deemed to be effective
as of the close of business on the date said notice is received by the Chairman
of the Board, the Chief Executive Officer, the President or the Secretary, or at
such later time as is specified therein. No formal action shall be required of
the Board of Directors or the shareholders to make any such resignation
effective.
ARTICLE VII
CONTRACTS, PROXIES, ETC.
SECTION 7.1. CONTRACTS. Except as otherwise required by law, the
Certificate of Incorporation, a Preferred Stock Designation, or these By-Laws,
any contracts or other instruments may be executed and delivered in the name and
on the behalf of the Corporation by such officer or officers of the Corporation
as the Board of Directors may from time to time direct.
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Such authority may be general or confined to specific instances as the Board may
determine. The Chairman of the Board, the Chief Executive Officer, the President
or any Senior Vice President, Executive Vice President or Vice President may
execute bonds, contracts, deeds, leases and other instruments to be made or
executed for or on behalf of the Corporation. Subject to any restrictions
imposed by the Board of Directors, the Chief Executive Officer, the President or
any Senior Vice President, Executive Vice President or Vice President of the
Corporation may delegate contractual powers to others under such person's
jurisdiction, it being understood, however, that any such delegation of power
shall not relieve such officer of responsibility with respect to the exercise of
such delegated power.
SECTION 7.2. PROXIES. Unless otherwise provided by resolution
adopted by the Board of Directors, the Chairman of the Board, the Chief
Executive Officer, the President or any Senior Vice President, Executive Vice
President or Vice President may from time to time appoint an attorney or
attorneys or agent or agents of the Corporation, in the name and on behalf of
the Corporation, to cast the votes which the Corporation may be entitled to cast
as the holder of stock or other securities in any other corporation, any of
whose stock or other securities may be held by the Corporation, at meetings of
the holders of the stock or other securities of such other corporation, or to
consent in writing, in the name of the Corporation as such holder, to any action
by such other corporation, and may instruct the person or persons so appointed
as to the manner of casting such votes or giving such consent, and may execute
or cause to be executed in the name and on behalf of the Corporation and under
its corporate seal or otherwise, all such written proxies or other instruments
as he may deem necessary or proper in the premises.
ARTICLE VIII
AMENDMENTS
SECTION 8.1. AMENDMENTS. Except as otherwise specified herein, the
By-Laws may be altered or repealed and new By-Laws may be adopted (1) at any
annual or special meeting of shareholders by the affirmative vote of the holders
of a majority of the voting power of the stock issued and outstanding and
entitled to vote thereat, provided, however, that any proposed alteration or
repeal of, or the adoption of any By-Law inconsistent with, Section 2.2, 2.7 or
2.10 of Article II or Section 3.9 or 3.11 of Article III of the By-Laws by the
shareholders shall require the affirmative vote of the holders of at least 80%
of the voting power of all Voting Stock then outstanding, voting together as a
single class, and provided, further, however, that, in the case of any such
shareholder action at a special meeting of shareholders, notice of the proposed
alteration, repeal or adoption of the new By-Law or By-Laws must be contained in
the notice of such special meeting, or (2) by the affirmative vote of a majority
of the Whole Board.
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Exhibit 16
ERNST & YOUNG LLP 787 Seventh Avenue Phone: 212 773-3000
New York, New York 10019
September 29, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Gentlemen:
We have read Item 4 of Form 8-K/A No. 2 dated September 29, 1998 of MarketSpan
Corporation and are in agreement with the statements contained in the second
sentence of the first paragraph, and the second paragraph as they relate to
Ernst & Young LLP and Long Island Lighting Company. We have no basis to agree or
disagree with other statements of the registrant contained therein.
/s/ ERNST & YOUNG LLP
Ernst & Young LLP is a member of Ernst & Young International, Ltd.
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