As filed with the Securities and Exchange Commission on September 11, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported) August 24, 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)
175 East Old County Road, Hicksville, New York 11801
(Former Name or Former Address, if Changed Since Last Report)
Page 1
Exhibit Index on Page 8
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 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, and there have been no disagreements concerning any
matter of accounting principles or practices, financial statement disclosure, or
auditing scope or procedure required to be disclosed by this Item.
Item 5. Other Events.
On August 24, 1998 and September 10, 1998, the Company appointed the
following officers:
Name Position
Robert B. Catell Chairman & Chief Executive
Officer
Craig G. Matthews Executive Vice President &
Chief Financial Officer
Fred M. Lowther General Counsel
Anthony J. DiBrita Senior Vice President
Gas Operations
Robert J. Fani Senior Vice President
Gas Marketing & Sales
William K. Feraudo Senior Vice President
KeySpan Energy Marketing Group
Page 2
Anthony Nozzolillo Senior Vice President
Financial Services
Wallace P. Parker Jr. Senior Vice President
Human Resources
David L. Phillips Senior Vice President
Strategic Planning &
Corporate Development
Lenore F. Puleo Senior Vice President
Customer Relations
Maurice K. Shaw Senior Vice President
Corporate Affairs
Steven L. Zelkowitz Senior Vice President &
Deputy General Counsel
G. Bruce Cocks Vice President
Operating Services
Charles A. Daverio Vice President
Energy Supply
Lawrence Dryer Vice President
Internal Audit
Jane A. Fernandez Vice President
Customer Relations
John F. Haran Vice President
Gas West Operations
Ronald S. Jendras Vice President
Controller & Chief Accounting Officer
George B. Jongeling Vice President
Gas East Operations
Anne C. Jordan Vice President
Financial Planning
Page 3
Howard A. Kosel Vice President
Generation Operations
Brian R. McCaffrey Vice President
Corporate Philanthropy
Arden D. Melick Vice President
Public Affairs
Justin C. Orlando Vice President
Compensation & Benefits
Werner J. Schweiger Vice President
T&D Management
Richard M. Siegel Vice President
Technology Operations
Michael J. Taunton Vice President
Investor Relations
Colin P. Watson Vice President
Strategic Marketing & Planning
Elaine Weinstein Vice President
Staffing & Development
Robert R. Wieczorek Vice President, Secretary &
Treasurer
Edward J. Youngling Vice President
Engineering
Former LILCO executives on the foregoing list who had received severance
payments from LILCO have returned, or agreed to return, their LILCO severance
payments.
Attached hereto as Exhibit 99.1 is the Company's press release relating to
the August 24, 1998 appointments, which is incorporated herein by reference.
On September 10, 1998, the Board of Directors of the Company (i) authorized
an amendment to the Company's Certificate of Incorporation and amended the
Company's By-Laws to provide that the Company would have principal offices in
each of Nassau County and Kings County, New York; (ii) confirmed existing By-Law
provisions to the effect that Annual Meetings of Shareholders will be held at
Page 4
such time and date as designated by the Board of Directors, and that the
Company's fiscal year will begin on the first day of January and end on the 31st
day of December in each year (see Item 8 below); (iii) determined that the 1999
Annual Meeting of Shareholders will be held on or about May 13, 1999; (iv)
determined that the date by which shareholder proposals for inclusion in the
Company's 1999 Annual Meeting SEC proxy materials must be received will be
December 3, 1998; and (v) determined that the dates within which, pursuant to
the By-Laws, shareholders must give advance notice to the Company of their
intention to submit nominations for election as Directors or to make other
proposals for action at the 1999 Annual Meeting of Shareholders will be from
February 12, 1999 to March 12, 1999.
On September 10, 1998, the Company announced that its Board of Directors
had authorized filings to permit the Company to conduct its business under the
name KeySpan Energy. The Company intends to propose a formal name change for
shareholder approval at the 1999 Annual Meeting of Shareholders. Attached
hereto as Exhibit 99.2 is the Company's press release with respect to the
foregoing announcement, which is incorporated herein by reference.
On August 13, 1998, the Board of Directors of the Company authorized
certain committees of the Board of Directors and designated the following
members of such committees:
Executive Committee
-------------------
Robert B. Catell, Chairman
Alan H. Fishman
Stephen W. McKessy
Edward D. Miller
Frederic V. Salerno
Vincent Tese
Audit Committee
---------------
Alan H. Fishman, Chairman
George Bugliarello
Howard R. Curd
Richard N. Daniel
Stephen W. McKessy
James Q. Riordan
Compensation and Nominating Committee
-------------------------------------
Edward D. Miller, Chairman
Donald H. Elliott
James R. Jones
Basil A. Paterson
Frederic V. Salerno
Vincent Tese
Corporate Responsibility Committee
----------------------------------
Basil A. Paterson, Chairman
George Bugliarello
Howard R. Curd
Richard N. Daniel
Donald H. Elliott
James R. Jones
Page 5
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a)-(b) Not applicable.
(c) See "Index to Exhibits" on Page 8.
Item 8. Change in Fiscal Year.
On September 10, 1998, the Board of Directors determined that the
Company's fiscal year would begin on the first day of January and end on the
31st day of December in each year. The Company's first fiscal year will cover
LILCO as the predecessor entity from January 1, 1998 to December 31, 1998 and
KeySpan for the period from May 29, 1998, the date subsequent to the
consummation of the LILCO/KeySpan/LIPA transactions, to December 31, 1998.
The Company's report covering the transition period will be filed on
Form 10-K for the fiscal year ending December 31, 1998.
Page 6
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 11, 1998 By: /s/ Craig G. Matthews
Name: Craig G. Matthews
Title: Executive Vice President and
Chief Financial Officer
Page 7
INDEX TO EXHIBITS
Exhibit No. Exhibit
3.1 By-Laws of MarketSpan Corporation, as amended
99.1 Press Release, dated August 24, 1998
99.2 Press Release, dated September 10, 1998
Page 8
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").
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 time of giving of notice provided for in this By-Law, who is
Page 2
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, 1998. 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 By-Law 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 at the principal executive
Page 3
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
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
Page 4
(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.
Page 5
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.
Page 6
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.
Page 7
(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 office until such person's successor shall have been duly elected and
Page 8
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 By-Laws, 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. Such authority may be
Page 11
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.
Page 12
EXHIBIT 99.1
MarketSpan Announces Management Organization
Media: Investors:
Robert J. Mahony Craig G. Matthews
(718) 403-2503 (718) 403-2552
Robert R. Wieczorek
(718) 403-3388
Brooklyn and Hicksville, New York, August 24, 1998 -- Robert B. Catell, Chairman
and Chief Executive Officer of MarketSpan Corporation (NYSE: MN) today announced
the following members of MarketSpan's management team: Craig G. Matthews,
Executive Vice President and Chief Financial Officer; Anthony J. DiBrita, Senior
Vice President, Gas Operations; Robert J. Fani, Senior Vice President, Gas
Marketing and Sales; William K. Feraudo, Senior Vice President, KeySpan Energy
Marketing Group; Anthony Nozzolillo, Senior Vice President, Financial Services;
Wallace P. Parker, Jr., Senior Vice President, Human Resources; Dave L. Phillips
Senior Vice President, Strategic Planning and Corporate Development; Lenore F.
Puleo, Senior Vice President, Customer Relations; and Maurice K. Shaw, Senior
Vice President, Corporate Affairs.
Vice Presidents include: George B. Cocks, Operating Services; Charles A. Daverio
Energy Supply; Jane A. Fernandez, Customer Relations; John Haran, Gas West
Operations; Ron S. Jendras, Controller and Chief Accounting Officer; George B.
Jongeling, Gas East Operations; Anne Jordan, Financial Planning; Howard A.
Kosel, Jr., General Operations; Brian McCaffrey, Corporate Philanthropy; Arden
D. Melick, Public Affairs; Justin Orlando, Compensation and Benefits; Werner J.
Schweiger, Transmission and Distribution Management; Richard M. Siegel,
Technology Operations; Colin P. Watson, Strategic Marketing and Planning; Elaine
Weinstein, Staffing and Development; and Edward J. Youngling, Engineering.
Robert R. Wieczorek is Vice President, Secretary and Treasurer.
Mr. Catell said, "The MarketSpan management team combines the experience of both
the gas and electric sides of our company. This is a talented group of
individuals who share our long tradition of putting the customer first and
creating value for shareholders. Customers and shareholders will benefit from
their expertise as we move forward to realize the potential of this great
company."
Mr. Catell noted that the company will soon announce both a Senior Vice
President of Electric Operations and General Counsel.
Page 1
MarketSpan subsidiaries distribute natural gas to nearly 1.6 million customers
in the New York City boroughs of Staten Island, Brooklyn and Queens, and the
Long Island counties of Nassau and Suffolk. Subsidiaries own significant
investments in gas exploration and production operations, primarily through 64%
ownership of The Houston Exploration Company (NYSE:THX). Other subsidiaries own
investments in domestic and international pipeline operations and in
international gas-distribution operations, and provide gas-marketing and energy
services, including system installation and management primarily in the greater
New York metropolitan area. Company subsidiaries generate electricity in Nassau
and Suffolk at five plants and 42 smaller facilities with an aggregate-rated
generating capacity of 3,978 MW and provide electric transmission - and -
distribution-operating services and customer-billing services to the Long Island
Power Authority for its one million electric customers. For more information,
visit MarketSpan's web site at www.marketspancorp.com.
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EXHIBIT 99.2
KEYSPAN ENERGY NAME REESTABLISHED
Brooklyn and Hicksville (September 10, 1998) -- Robert B. Catell, Chairman
and Chief Executive Officer of MarketSpan Corporation (NYSE:MN), announced that
MarketSpan will begin doing business as KeySpan Energy, effective immediately.
Over the coming weeks, signs and advertising will be changed to KeySpan
Energy, a name increasingly familiar to energy consumers in the Northeast. In
the near future KeySpan Energy will again trade on the New York Stock Exchange
using the symbol KSE. Shareholders will vote on a formal name change to KeySpan
Energy at their 1999 Annual Meeting.
"Through our unregulated subsidiaries, the KeySpan name has continued to
grow in recognition," said Catell. "Under the KeySpan banner, we look forward
to fulfilling our promise to build value for our shareholders as we become the
premier energy company in the Northeast."
KeySpan Brand Name Established
The MarketSpan name has been in use for only the three months following the
merger of the Long Island Lighting Company with KeySpan Energy Corporation, the
holding company of Brooklyn Union. "The change to KeySpan will reestablish a
name with excellent brand equity and positive recognition among all our
constituencies," said Catell. "We want to build on the values that the KeySpan
name represents."
The KeySpan Family of Companies
KeySpan's principal subsidiary is Brooklyn Union, which provides natural gas
service to 1.6 million customers in Brooklyn, Queens and Staten Island, and in
Nassau and Suffolk counties on Long Island. KeySpan also produces electric
power on Long Island, and includes among its holdings:
* KeySpan Energy Management, based in Jericho, Long Island, which provides
energy management and develops energy systems for large commercial, industrial
and residential developments.
* KeySpan Energy Solutions, the largest heating, cooling and appliance
repair service company based in New York State.
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* KeySpan Energy Services, based in Stamford, Connecticut, which markets
natural gas to five states in the Northeastern portion of the United States.
* KeySpan Energy Development Corporation, based in Brooklyn, which develops
unregulated energy projects, both domestically and internationally.
KeySpan and its subsidiaries also have investments in:
* The Houston Exploration Company (NYSE:THX), a publicly held oil-and-gas
company based in Houston, which is active in exploration, development, and
acquisition of properties in the Gulf of Mexico, Texas, Louisiana, West
Virginia, and in the Arkoma Basin.
* Honeoye Storage Corporation, which owns a gas storage facility in Ontario
County, New York.
* The North East Transmission Company, the second largest equity holder in
the Iroquois pipeline, a 375-mile transmission system that transports natural
gas from Canada to the Northeastern United States.
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