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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10
GENERAL FORM FOR REGISTRATION OF SECURITIES
PURSUANT TO SECTION 12(b) or 12(g) OF
THE SECURITIES EXCHANGE ACT OF 1934
Dynegy Holdings Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 94-3248415
(State of Incorporation (I.R.S. Employer
or organization) Identification No.)
1000 Louisiana Street, Suite 5800
Houston, Texas 77002
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (713) 507-6400
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class to Name of each exchange on which
be so registered each class is to be registered
None
Securities to be registered pursuant to Section 12(g) of the Act:
6.875% Senior Notes due 2002
6.75% Senior Notes due 2005
7.450% Senior Notes due 2006
7.125% Debentures due 2018
7.625% Senior Notes due 2026
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Item 1. Business.
On February 1, 2000, Dynegy Holdings Inc., a Delaware corporation (Dynegy
Holdings"), and Illinova Corporation, an Illinois corporation ("Illinova"),
merged in a transaction in which Dynegy Holdings and Illinova became wholly
owned subsidiaries of Dynegy Inc., an Illinois corporation ("New Dynegy"). The
merger is more fully described in the Joint Proxy Statement/Prospectus contained
within Dynegy's Form S-4 Registration Statement (File Number 333-84965) filed
with the Securities and Exchange Commission on September 7, 1999.
A description of the business of Dynegy Holdings Inc., is contained in the
section entitled "Business" of the Form 10-K filed by New Dynegy (File Number
1-11156), the owner of all the issued and outstanding capital stock of Dynegy
Holdings, on March 30, 1999, March 30, 1998, March 31, 1997, April 1, 1996 and
March 31, 1995, and is incorporated herein by reference.
Recent Developments
On February 1, 2000, New Dynegy sold its ownership interests in 11
cogeneration facilities in California to El Paso Energy West Coast Acquisition
Corp. for approximately $255 million. The 11 facilities in which New Dynegy
sold interests include Corona (Corona, California), Kern Front (Kern County),
High Sierra (Kern County), Double "C" (Kern County), San Joaquin (Stockton),
Chalk Cliff (Kern County), Badger Creek (Kern County), McKittrick (McKittrick),
Live Oak (Kern County), Crockett (Crockett), Bear Mountain (Bakersfield). The
11 facilities had a combined capacity of approximately 370 net megawatts.
On December 16, 1999, New Dynegy sold four gas processing plants and
related gathering systems located in East Texas and Arkansas to Sulphur River
Gathering LP. The four plants were the Eustace Plant (Henderson County, Texas),
the New Hope plant (Franklin County, Texas), the East Texas plant (Gregg County,
Texas), and the Texarkana Plant (Miller County, Arkansas).The sale included
approximately 675 miles of gathering lines. The plants were capable of
processing approximately 175,000 million cubic feet of gas per day.
Item 2. Financial Information.
The financial information for Dynegy Holdings is contained in the
sections entitled "Selected Financial Data," "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and "Quantitative and
Qualitative Disclosures About Market Risk" of the Form 10-K's filed by New
Dynegy (File Number 1-11156) filed on March 30, 1999 and March 30, 1998 and in
the sections entitled "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and "Quantitative and Qualitative
Disclosures About Market Risk" in the Form 10-Q filed by
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New Dynegy (File Number 1-11156) on November 15, 1999 and is incorporated herein
by reference.
Item 3. Properties.
A description of the properties of Dynegy Holdings is contained in the
section entitled "Properties" of the Form 10-K filed by New Dynegy (File Number
1-11156) on March 30, 1999, and is incorporated herein by reference.
Item 4. Security Ownership of Certain Beneficial Owners and Management.
All of the issued and outstanding capital stock of Dynegy Holdings is owned
by New Dynegy.
Item 5. Directors and Executive Officers.
Set forth below are the names and positions of the current executive
officers of the Company, together with their ages, position(s) and years of
service with the Company.
<TABLE>
<CAPTION>
Name Age Position(s) Since
<S> <C> <C> <C>
C. L. Watson 49 Chairman and Chief Executive Officer 1985
Stephen W. Bergstrom 42 President and Chief Operating Officer of 1986
Dynegy Holdings and Dynegy
Marketing and Trade, and
a Director of the Company
John U. Clarke 47 Executive Vice President, Chief Financial Officer 1997
And a Director of the Company
Dan W. Ryser 50 Executive Vice President of Dynegy 1993
Marketing and Trade
Stephen A. Furbacher 52 President and Chief Operating Officer of 1996
Dynegy Mid-Stream Services
Kenneth E. Randolph 43 General Counsel, Secretary and a Director 1984
of the Company
</TABLE>
The directors and executive officers named above will serve in such
capacities until their respective successors have been duly elected and have
been qualified, or until their earlier death, resignation, disqualification or
removal from office.
C.L. Watson serves as Chairman of the Board, Chief Executive Officer
and a Director of both Dynegy Holdings and New Dynegy. He also served as
President of Dynegy Holdings from March 1995 to December 1996. Mr. Watson served
as Chairman and as a member of the Natural Gas Clearinghouse ("Clearinghouse")
Management Committee from May 1989 through March 1995, and as Chief Executive
Officer and
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President of Clearinghouse from September 1985 through March 1995. Mr. Watson
also serves as a member of the Board of Directors of Baker Hughes Incorporated.
Stephen W. Bergstrom serves as a Director of both Dynegy Holdings and
New Dynegy, and as President and Chief Operating Officer of both Dynegy Holdings
and Dynegy Marketing and Trade (f/k/a Natural Gas Clearinghouse). He served as
Executive Vice President of Clearinghouse and a member of the Clearinghouse
Management Committee from May 1989 through March 1995. In addition, Mr.
Bergstrom served as Senior Vice President, Gas Marketing and Supply, of
Clearinghouse from May 1987 through May 1990, and as Vice President, Gas Supply,
of Clearinghouse from July 1986 through May 1987. Prior to his employment with
Clearinghouse, Mr. Bergstrom served as Vice President, Gas Supply, of Enron Gas
Marketing, a subsidiary of Enron Corp.
John U. Clarke serves as Executive Vice President, Chief Financial
Officer and a Director of both Dynegy Holdings and New Dynegy. Mr. Clarke
joined Dynegy Holdings in April 1997 as Senior Vice President and Chief
Financial Officer. Mr. Clarke is also an Advisory Director of New Dynegy. Prior
to joining Dynegy Holdings, Mr. Clarke was a managing director and co-head of a
specialty energy practice group with Simmons & Company International, an
investment-banking firm, for approximately one year. He previously had served
as President of Concept Capital Group, Inc., a financial advisory firm formed by
Mr. Clarke in May 1995. Mr. Clarke was Executive Vice President and Chief
Financial and Administrative Officer with Cabot Oil & Gas Corporation from
August 1993 to February 1995, and worked for Transco Energy Company from April
1981 to May 1993, last serving as Senior Vice President and Chief Financial
Officer. Mr. Clarke began his career with Tenneco Inc. in January 1978.
Dan W. Ryser serves as Senior Vice President of Dynegy Inc. and Dynegy
Holdings Inc., and Executive Vice President of Dynegy Marketing and Trade. Mr.
Ryser manages the Company's power generation business. Since joining Dynegy
Holdings in 1993, Mr. Ryser has served the Company in several capacities,
including managing ECI's electricity marketing operations. Prior to joining the
Company in 1993, Mr. Ryser held various positions at Enron Corp. including
President of Enron Gas Processing Company, President of Transwestern Pipeline
Company, Executive Vice President of Enron Gas Marketing and President of
Houston Pipe Line Company.
Stephen A. Furbacher serves as President and Chief Operating Officer
of Dynegy Mid-Stream Services, and Senior Vice President of Dynegy Inc. and
Dynegy Holdings Inc. In this capacity, Mr. Furbacher is responsible for the
operations of Dynegy's North American mid-stream liquids operations, as well as
the global liquefied petroleum gas transportation and natural gas liquids
marketing operations. The North American mid-stream liquids operations are
actively engaged in the gathering and processing of natural gas and the
transportation, fractionation and storage of NGLs. Prior to joining the Company
in September 1996, Mr. Furbacher served as President of Warren Petroleum
Company, a division of Chevron U.S.A. Inc.
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Kenneth E. Randolph serves as General Counsel, Secretary and a Director of
the Company. He has served as Senior Vice President and General Counsel of
Dynegy Holdings (or its predecessor, Clearinghouse) since July 1987. In
addition, he served as a member of the Clearinghouse Management Committee from
May 1989 through February 1994 and managed Clearinghouse's marketing operations
in the Western and Northwestern United States from July 1984 through July 1987.
Prior to his employment with the Company, Mr. Randolph was associated with the
Washington, D.C. office of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
Item 6. Executive Compensation.
Neither the directors nor the officers of Dynegy Holdings receive any
form of compensation from Dynegy Holdings for their services rendered to Dynegy
Holdings. Such directors and officers receive compensation from New Dynegy as
discribed in the most recent Form 10-K of New Dynegy filed with the Commission
on March 30, 1999.
Item 7. Certain Relationships and Related Transactions.
A description of certain relationships and related transactions of
Dynegy Holdings is contained in the sections entitled "Principal Stockholders,"
"Proposal 1 - Election of Directors," "Executive Compensation - Indebtedness of
Management" and "Certain Relationships and Related Transactions" of the Proxy
Statement filed by New Dynegy (File Number 1-11156) on March 20, 1999, and is
incorporated herein by reference.
Item 8. Legal Proceedings.
Descriptions of the legal proceedings of Dynegy Holdings are contained
in the section entitled "Legal Proceedings" in the Form 10-K filed by New Dynegy
(File Number 1-11156) on March 30, 1999 and in the sections entitled "Legal
Proceedings" of the reports on Form 10-Q filed by New Dynegy (File Number 1-
11156) on November 15, 1999, August 16, 1999, and May 17, 1999, and are
incorporated herein by reference.
Item 9. Market Price of and Dividends on the Registrant's Common Equity and
Related Stockholder Matters.
Not Applicable.
Item 10. Recent Sales of Unregistered Securities.
Not applicable.
Item 11. Description of Registrant's Securities to be Registered.
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A description of the 6.75% Senior Notes of Dynegy Holdings is
contained in the prospectus supplement filed by New Dynegy (File Number 33-
97368) ) with the Commission on December 19, 1995 and is incorporated herein by
reference.
A description of the 6.875% Senior Notes and the 7.450% Senior Notes
is contained in the prospectus supplement filed by New Dynegy (File Number 333-
60253) ) with the Commission on July 23, 1999 and is incorporated herein by
reference.
A description of the 7.125% Debentures of Dynegy Holdings is contained
in the prospectus supplement filed by New Dynegy (File Number 333-12987) with
the Commission on May 18, 1998 and is incorporated herein by reference.
A description of the 7.625% Senior Notes of Dynegy Holdings is
contained in the prospectus supplement filed by New Dynegy (File Number 333-
12987) with the Commission on October 11, 1996 and is incorporated herein by
reference.
Item 12. Indemnification of Directors and Officers.
As permitted by Section 102 of the Delaware General Corporation Law
(the "DGCL"), the Amended and Restated Certificate of Incorporation of Dynegy
Holdings (the "Certificate") provides that, to the fullest extent permitted by
Delaware law, no director shall be liable to Dynegy Holdings or its stockholders
for monetary damages for breach of fiduciary duty as director. By virtue of
these provisions, a director of Dynegy Holdings is not personally liable for
monetary damages for breach of such director's fiduciary duty except for
liability for (i) breach of duty of loyalty to Dynegy Holdings or its
stockholders, (ii) acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) dividends or stock
repurchases or redemptions that are unlawful under the DGCL and (iv) any
transaction from which such director receives an improper personal benefit. In
addition, the Certificate provides that if the DGCL is amended to authorize the
further elimination or limitation of the liability of a director, then the
liability of the directors will be eliminated or limited to the fullest extent
permitted by the DGCL, as amended. As a result, the rights of Dynegy Holdings
and its stockholders to obtain monetary damages for acts or omissions of
directors will be more limited than they would be in the absence of the
limitation of liability provision. The limitation of liability provision does
not limit or affect a stockholder's ability to seek and obtain relief under the
federal securities laws.
Section 145 of the DGCL permits indemnification upon a determination
that an officer or director has met the applicable standard of conduct. Such
officer or director is required to have acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of a
corporation and, with respect to any criminal action, without reasonable cause
to believe his conduct was unlawful. Section 145 does not authorize
indemnification in actions brought by or in the right of a corporation with
respect to any claim, issue or matter as to which a director or officer is
adjudged to be liable to the corporation, unless specifically authorized by the
Delaware Court of
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Chancery or the court in which such action is brought. The Certificate provides
for the mandatory indemnification of officers and directors to the fullest
extent permitted under the DGCL. Section 145 also expressly provides that the
power to indemnify authorized thereby is not exclusive of any rights granted
under any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise.
The above discussion of the Certificate and of Sections 102 and 145 of the
DGCL is not intended to be exhaustive and is qualified in its entirety by such
Certificate and the DGCL.
New Dynegy has purchased liability insurance policies covering Dynegy
Holdings' directors and officers to insure against losses that are not covered
by the indemnification of directors and officers by Dynegy Holdings, as
discussed above. Covered losses include those arising from any breach of duty,
neglect, error, misstatement, misleading statement, omission or other act done
or wrongfully attempted by the directors or officers in their respective
capacities as such. Dynegy Holdings is also insured against losses incurred as
a result of indemnity payments to any director or officer.
Item 13. Financial Statements and Supplementary Data.
The financial statements of Dynegy Holdings are contained in the
section entitled "Financial Statements and Supplementary Data" of the Form 10-
K's filed by New Dynegy (File Number 1-11156) filed on March 30, 1999 and March
30, 1998 and in the section entitled "Financial Statements" of the Form 10-Q for
Dynegy Inc. (File Number 1-11156) filed on November 15, 1999 and both are
incorporated herein by reference.
Item 14. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.
Not applicable.
Item 15. Financial Statements and Exhibits.
a. Consolidated financial statements of Dynegy Holdings and its
subsidiaries are incorporated under Item 13 of this Form 10.
b. Exhibits - The following instruments and documents are included as
exhibits to this Form 10.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
2.1 Combination Agreement and Plan of Merger, dated May, 22, 1996,
by and between NGC Corporation, Chevron U.S.A. Inc. and
Midstream Combination Corp.(7)
</TABLE>
6
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2.2 - Amendment to Combination Agreement, dated as of August 29, 1996,
by and among NGC Corporation, Chevron U.S.A. Inc. and Midstream
Combination Corp.(5)
2.3 - Agreement and Plan of Merger by and among Destec Energy, Inc., The
Dow Chemical Company, NGC Corporation and NGC Acquisition
Corporation II dated as of February 17, 1997. (8)
2.4 - Asset Purchase Agreement by and between NGC Corporation and The
AES Corporation dated as of February 17, 1997. (8)
2.5 - First Amendment to Asset Purchase Agreement by and between NGC
Corporation and The AES Corporation dated June 29, 1997.(9)
2.6 - Asset Purchase Agreement between Destec Energy, Inc. and ECT
EOCENE Enterprises, Inc. dated July 1, 1997.(9)
2.7 - Agreement and Plan of Merger dated as of June 14, 1999, as
amended, by and among Dynegy Inc. (now known as Dynegy Holdings),
Dynegy Acquisition Corporation, Illinova Corporation, Energy
Convergence Acquisition Corporation and Energy Convergence Holding
Company (now known as Dynegy Inc.). (12)
3.1 - Amended and Restated Certificate of Incorporation of Dynegy
Holdings Inc.(15)
3.2 - Bylaws of Dynegy Holdings Inc. (15)
4.1 - Indenture, dated as of December 11, 1995, by and between NGC
Corporation, the Subsidiary Guarantors named therein and the First
National Bank of Chicago, as Trustee.(4)
4.2 - First Supplemental Indenture, dated as of August 31, 1996, by and
among NGC Corporation, the Subsidiary Guarantors named therein,
and The First National Bank of Chicago, as Trustee, supplementing
and amending the Indenture dated as of December 11, 1995. (5)
4.3 - Second Supplemental Indenture, dated as of October 11, 1996, by
and among NGC Corporation, the Subsidiary Guarantors named
therein, and The First National Bank of Chicago, as Trustee,
supplementing and amending the Indenture dated as of December 11,
1995. (5)
4.4 - Amended and Restated Credit Agreement dated as of June 27, 1997,
among NGC Corporation and The First National Bank of Chicago,
Individually and as Agent, The Chase Manhattan Bank and
NationsBank of Texas, N.A., Individually and as Co-Agents, and the
Lenders Named therein.(9)
4.5 - First Amendment to Amended and Restated Credit Agreement, dated
November 24, 1997, among NGC Corporation and The First National
Bank of Chicago, Individually and as Agent, The Chase Manhattan
Bank and NationsBank of Texas, N.A., Individually and as Co-Agents
for the Lenders named therein. (13)
4.6 - Second Amendment to Amended and Restated Credit Agreement, dated
as of February 20, 1998, among NGC Corporation and The First
National Bank of Chicago, Individually
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and as Agent, The Chase Manhattan Bank and NationsBank of Texas,
N.A., Individually and as Co-Agents for the Lenders named therein.
(13)
4.7 - Subordinated Debenture Indenture between NGC Corporation and The
First National Bank of Chicago, as Debenture Trustee, dated as of
May 28, 1997. (10)
4.8 - Amended and Restated Declaration of Trust among NGC Corporation,
Wilmington Trust Company, as Property Trustee and Delaware Trustee,
and the Administrative Trustees named therein, dated as of May 28,
1997. (10)
4.9 - Series A Capital Securities Guarantee executed by NGC Corporation
and The First National Bank of Chicago, as Guarantee Trustee, dated
as of May 28, 1997. (10)
4.10 - Common Securities Guarantee of NGC Corporation dated as of May 28,
1997. (10)
4.11 - Registration Rights Agreement, dated as of May 28, 1997, among NGC
Corporation, NGC Corporation Capital Trust I, Lehman Brothers,
Salomon Brothers Inc. and Smith Barney Inc. (10)
4.12 - Second Supplemental Indenture among NGC Corporation, Destec Energy,
Inc. and The First National Bank of Chicago, as Trustee, dated as of
June 30, 1997, supplementing and amending the Indenture dated as of
June 30, 1997. (11)
4.13 - Fourth Supplemental Indenture among NGC Corporation, Destec Energy,
Inc. and The First National Bank of Chicago, as Trustee, dated as of
June 30, 1997, supplementing and amending the Indenture dated as of
December 11, 1995. (11)
4.14 - Fifth Supplemental Indenture among NGC Corporation, The Subsidiary
Guarantors named therein and The First National Bank of Chicago, as
Trustee, dated as of September 30, 1997, supplementing and amending
the Indenture dated as of December 11, 1995. (13)
4.15 - Sixth Supplemental Indenture among NGC Corporation, The Subsidiary
Guarantors named therein and The First National Bank of Chicago, as
Trustee, dated as of January 5, 1998, supplementing and amending the
Indenture dated as of December 11, 1995. (13)
4.16 - Seventh Supplemental Indenture among NGC Corporation, The
Subsidiary Guarantors named therein and The First National Bank of
Chicago, as Trustee, dated as of February 20, 1998, supplementing
and amending the Indenture dated as of December 11, 1995. (13)
4.17 - Indenture, dated as of September 26, 1996, restated as of March 23,
1998, to include amendments in the First through Fifth Supplemental
Indentures, between NGC Corporation and The First National Bank of
Chicago, as Trustee. (13)
4.18 - Credit Agreement dated as of May 27, 1998, among NGC Corporation
and The First National Bank of Chicago, Individually and as
Administrative Agent, The Chase Manhattan Bank, Individually and as
Syndication agent and NationsBank, N.A., Individually and as
Documentation Agent and the Lenders named therein. (12)
4.19 - 364-Day Revolving Credit Agreement dated as of May 27, 1998, among
NGC Corporation and The First National Bank of Chicago, Individually
and as Administrative Agent, The Chase Manhattan Bank, Individually
and as Syndication agent and
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NationsBank, N.A., Individually and as Documentation Agent and the
Lenders named therein. (12)
10.1 - Agreement of Sale and Purchase of Assets, dated as of May 5, 1991,
as amended on June 6, 1991 and August 30, 1991, by and between OXY
USA Inc. and Trident Energy, Inc. (1)
10.2 - Master Agreement on Gas Processing, dated as of May 5, 1991, by and
between OXY USA Inc. and Trident NGL, Inc.(1)
10.3 - Lease Agreement entered into on June 12, 1996 between Metropolitan
Life Insurance Company and Metropolitan Tower Realty Company, Inc.,
as landlord, and NGC Corporation, as tenant. (6)
10.4 - First Amendment to Lease Agreement entered into on June 12, 1996
between Metropolitan Life Insurance Company and Metropolitan Tower
Realty Company, Inc., as landlord, and NGC Corporation, as tenant.
(6)
10.5 - Contribution and Assumption Agreement, dated as of August 31, 1996,
among Chevron U.S.A. Inc., Chevron Pipe Line Company, Chevron
Chemical Company and Midstream Combination Corp. (5)
10.6 - Scope of Business Agreement, dated May 22, 1996 between Chevron
Corporation and NGC Corporation.(6)
10.7 - Master Alliance Agreement, dated as of September 1, 1996, among
Chevron U.S.A. Inc., Chevron Chemical Company, Chevron Pipe Line
Company, and other Chevron U.S.A. Inc. affiliates, NGC Corporation,
Natural Gas Clearinghouse, Warren Petroleum Company, Limited
Partnership, Electric Clearinghouse, Inc. and other NGC Corporation
affiliates. (5)
10.8 - Natural Gas Purchase and Sale Agreement, dated as of August 30,
1996, among Chevron U.S.A. Inc. and Natural Gas Clearinghouse. (5)
*
10.9 - Master Natural Gas Processing Agreement, dated as of September 1,
1996, among Chevron U.S.A. Inc. and Warren Petroleum Company,
Limited Partnership. (5) *
10.10 - Master Natural Gas Liquids Purchase Agreement, dated as of
September 1, 1996, among Warren Petroleum Company, Limited
Partnership and Chevron U.S.A. Inc. (5) *
10.11 - Gas Supply and Service Agreement, dated as of September 1, 1996,
among Chevron Products Company and Natural Gas Clearinghouse. (5) *
10.12 - Master Power Service Agreement, dated as of May 16, 1996, among
Electric Clearinghouse, Inc. and Chevron U.S.A. Production Company.
(6)
10.13 - Master Power Service Agreement, dated as of May 16, 1996, among
Electric Clearinghouse, Inc. and Chevron Chemical Company. (6)
10.14 - Master Power Service Agreement, dated as of May 16, 1996, among
Electric Clearinghouse, Inc. and Chevron Products Company. (6)
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10.15 - Feedstock Sale and Refinery Product Purchase Agreements, dated as
of September 1, 1996, among Chevron Products Company and Warren
Petroleum Company, Limited Partnership.(5) *
10.16 - Refinery Product Sale Agreement (Hawaii), dated as of September 1,
1996, among Warren Petroleum Company, Limited Partnership and
Chevron Products Company. (5) *
10.17 - Feedstock Sale and Refinery Product Master Services Agreement,
dated as of September 1, 1996, among Chevron Products Company and
Warren Petroleum Company, Limited Partnership. (5) *
10.18 - CCC Product Sale and Purchase Agreement dated as of September 1,
1996, among Warren Petroleum Company, Limited Partnership and
Chevron Chemical Company. (5)*
10.19 - CCC/WPC Services Agreement, dated as of September 1, 1996, among
Chevron Chemical Company and Warren Petroleum Company, Limited
Partnership. (5) *
10.20 - Operating Agreement, dated as of September 1, 1996, among Warren
Petroleum Company, Limited Partnership and Chevron Pipe Line
Company. (5) *
10.21 - Galena Park Services Agreement, dated as of September 1, 1996,
among Chevron Products Company and Midstream Combination Corp. (5)
10.22 - Venice Complex Operating Agreement, dated as of September 1, 1996,
among Chevron U.S.A. Inc. and Warren Petroleum Company, Limited
Partnership. (6) *
10.23 - Product Storage Lease and Terminal Access Agreement, dated as of
September 1, 1996, among Chevron U.S.A. Inc. and Warren Petroleum
Company, Limited Partnership. (6) *
10.24 - Lone Star Swap Transaction Confirmation Term Sheet, dated as of
September 1, 1996, among Chevron U.S.A. Inc. and NGC Corporation.
(5)
10.25 - West Texas LPG Pipeline Limited Partnership Agreement, dated as of
September 1, 1996, by and between Chevron Pipe Line Company, or an
affiliate thereof, and an affiliate of NGC Corporation. (5) *
10.26 - West Texas LPG Pipeline Operating Agreement, dated as of September
1, 1996, by and between Chevron Pipe Line Company, or an affiliate
thereof, and the West Texas LPG Pipeline Partnership. (5) *
10.27 - Time Charter, dated as of August 31, 1996, by and between
Midstream Barge Company, L.L.C. and Warren Petroleum Company,
Limited Partnership. (5) *
10.28 - Limited Liability Company Agreement of Midstream Barge Company,
L.L.C., dated as of August 31, 1996, by and between Chevron U.S.A.
Inc. and Warren Petroleum Company, Limited Partnership. (5)
12.1 - Computation of Ratio of Earnings to Fixed Charges.(14)
21 - Subsidiaries of the Registrant. (15)
23.1 - Consent of Arthur Andersen LLP.(15)
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*Exhibit omits certain information which the Company has filed separately
with the Commission pursuant to a confidential treatment request pursuant
to Rule 406 promulgated under the Securities Act of 1933, as amended.
(1) Incorporated by reference to exhibits to the Registration Statement of
Trident NGL, Inc. on Form S-1, Registration No. 33-43871.
(2) Incorporated by reference to exhibits to the Quarterly Report on Form 10-Q
for the Quarterly Period Ended September 30, 1993 of Trident NGL Holding,
Inc., Commission File No. 1-11156.
(3) Incorporated by reference to exhibits to the Registration Statement of
Trident NGL Holding, Inc. on Form S-4, Registration No. 33-88907.
(4) Incorporated by reference to the Registration Statement of NGC Corporation
on Form S-3, Registration No. 33-97368.
(5) Incorporated by reference to exhibits to the Quarterly Report on Form 10-Q
for the Quarterly Period Ended September 30, 1996, of NGC Corporation,
Commission File No. 1-11156.
(6) Incorporated by reference to exhibits to the Registration Statement of
Midstream Combination Corp. on Form S-4, Registration No. 333-09419.
(7) Incorporated by reference to exhibits to the Current Report on Form 8-K of
NGC Corporation, dated May 22, 1996, Commission File No. 1-11156.
(8) Incorporated by reference to exhibits to the Annual Report on Form 10-K for
the Fiscal Year Ended December 31, 1996, of NGC Corporation, Commission
File No. 1-11156.
(9) Incorporated by reference to exhibits to the Current Report on Form 8-K of
NGC Corporation, Commission File No. 1-11156, dated June 27, 1997.
(10) Incorporated by reference to exhibits to the Quarterly Report on Form 10-Q
for the Quarterly Period Ended June 30, 1997, Commission File No. 1-11156.
(11) Incorporated by reference to exhibits to the Quarterly Report on Form 10-Q
for the Quarterly Period Ended September 30, 1997, Commission File No. 1-
11156
(12) Incorporated by reference to exhibits to the Quarterly Report on Form 10-Q
for the Quarterly Period Ended June 30, 1998, Commission File No. 1-11156.
(13) Incorporated by reference to exhibits to the Annual Report on Form 10-K for
the Fiscal Year Ended December 31, 1997, of NGC Corporation, Commission
File No. 1-11156.
(14) Incorporated by reference to the exhibits to the Annual Report on Form 10-K
of Dynegy Inc. for the fiscal year ended December 31, 1998, File Number 1-
11156.
(15) Filed herewith.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities and
Exchange Act of 1934, the Registrant has caused this registration statement to
be signed on its behalf by the undersigned, thereto duly authorized.
DYNEGY HOLDINGS INC.
Date: February 2, 2000 By: /s/ Kenneth E. Randolph
_____________________________
Kenneth E. Randolph
General Counsel and Secretary
12
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RESTATED CERTIFICATE OF INCORPORATION
OF
DYNEGY HOLDINGS INC.
The present name of the corporation is Dynegy Holdings Inc. The
corporation was incorporated under the name "Midstream Combination Corp." by the
filing of its original Certificate of Incorporation with the Secretary of State
of the State of Delaware on May 22, 1996. This Restated Certificate of
Incorporation of the corporation, which both restates and further amends the
provisions of the corporation's Certificate of Incorporation, was duly adopted
in accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware and by the written consent of its sole
stockholder in accordance with Section 228 of the General Corporation Law of the
State of Delaware. The Certificate of Incorporation of the corporation is
hereby amended and restated to read in its entirety as follows:
ARTICLE I
The name of the Corporation is Dynegy Holdings Inc. (the "Corporation").
ARTICLE II
The address of the Corporation's registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted is: To
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware (the "DGCL").
ARTICLE IV
The total number of shares of common stock which the Corporation shall have
authority to issue is One Thousand (1,000) and the par value of each of the
shares is One Dollar ($1.00) amounting in the aggregate to One Thousand Dollars
($1,000).
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ARTICLE V
The Corporation is to have perpetual existence.
ARTICLE VI
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation (the "Board of Directors") is
expressly authorized to make, alter or repeal the bylaws of the Corporation.
ARTICLE VII
Elections of directors need not be by written ballot unless the bylaws of
the Corporation shall so provide. Meetings of stockholders may be held within
or without the State of Delaware, as the bylaws may provide. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be designated from
time to time by the board of directors or in the bylaws of the Corporation.
ARTICLE VIII
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ARTICLE IX
A director of the Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent such exemption from liability or limitation thereof is not
permitted under the DGCL as the same exists or may hereafter be amended. Any
amendment, modification or repeal of the foregoing sentence shall not adversely
affect any right or protection of a director of the Corporation hereunder in
respect of any act or omission occurring prior to the time of such amendment,
modification or repeal.
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ARTICLE X
Section 10.1. Right to Indemnification. The Corporation shall indemnify
and hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person (a "Covered Person")
who was or is made or is threatened to be made a party or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative (a "proceeding"), by reason of the fact that he, or
a person for whom he is the legal representative, is or was a director or
officer of the Corporation or, while a director or officer of the Corporation,
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust, enterprise or nonprofit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such Covered Person.
Notwithstanding the preceding sentence, except as otherwise provided in Section
10.3 of this Article X, the Corporation shall be required to indemnify a
Covered Person in connection with a proceeding (or part thereof) commenced by
such Covered Person only if the commencement of such proceeding (or part
thereof) by the Covered Person was authorized by the Board of Directors.
Section 10.2. Prepayment of Expenses. The Corporation shall pay the
expenses (including attorneys' fees) incurred by a Covered Person in defending
any proceeding in advance of its final disposition, provided, however, that, to
the extent required by law, such payment of expenses in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the Covered Person to repay all amounts advanced if it should be ultimately
determined that the Covered Person is not entitled to be indemnified under this
Article X or otherwise.
Section 10.3. Claims. If a claim for indemnification or advancement of
expenses under this Article X is not paid in full within thirty days after a
written claim therefor by the Covered Person has been received by the
Corporation, the Covered Person may file suit to recover the unpaid amount of
such claim and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action the Corporation shall
have the burden of
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proving that the Covered Person is not entitled to the requested indemnification
or advancement of expenses under applicable law.
Section 10.4. Nonexclusivity of Rights. The rights conferred on any
Covered Person by this Article X shall not be exclusive of any other rights
which such Covered Person may have or hereafter acquire under any statute,
provision of this Certificate of Incorporation, bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 10.5. Other Sources. The Corporation's obligation, if any, to
indemnify or to advance expenses to any Covered Person who was or is serving at
its request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such Covered Person may collect as indemnification or
advancement of expenses from such other corporation, partnership, joint venture,
trust, enterprise or non-profit enterprise.
Section 10.6. Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article X shall not adversely affect any right or
protection hereunder of any Covered Person in respect of any act or omission
occurring prior to the time of such repeal or modification.
Section 10.7. Other Indemnification and Prepayment of Expenses. This
Article X shall not limit the right of the Corporation, to the extent and in the
manner permitted by law, to indemnify and to advance expenses to persons other
than Covered Persons when and as authorized by appropriate corporate action.
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IN WITNESS WHEREOF, the undersigned has executed this Restated Certificate of
Incorporation this 1st day of February, 2000.
DYNEGY HOLDINGS INC.,
By: /s/ JOHN U. CLARKE
____________________________________________
John U. Clarke
Executive Vice President and Chief Financial
Officer
<PAGE>
AMENDED AND RESTATED
BYLAWS
OF
DYNEGY HOLDINGS INC.
A Delaware corporation
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<C> <S> <C>
A Delaware corporation 1
ARTICLE ONE 1
OFFICES 1
1.1 Registered Office and Agent...................... 1
1.2 Other Offices.................................... 1
ARTICLE TWO 1
MEETINGS OF STOCKHOLDERS 1
2.1 Annual Meeting................................... 1
2.2 Special Meeting.................................. 1
2.3 Place of Meetings................................ 2
2.4 Notice........................................... 2
2.5 Voting List...................................... 2
2.6 Quorum........................................... 2
2.7 Required Vote; Withdrawal of Quorum.............. 3
2.8 Method of Voting; Proxies........................ 3
2.9 Record Date...................................... 3
2.10 Conduct of Meeting.............................. 4
2.11 Inspectors...................................... 4
ARTICLE THREE 5
DIRECTORS 5
3.1 Management....................................... 5
3.2 Number; Qualification; Election; Term............ 5
3.3 Change in Number................................. 5
3.4 Removal.......................................... 5
3.5 Vacancies........................................ 6
3.6 Meetings of Directors............................ 6
3.7 First Meeting.................................... 6
3.8 Election of Officers............................. 6
3.9 Regular Meetings................................. 6
3.10 Special Meetings................................ 7
3.11 Notice.......................................... 7
3.12 Quorum; Majority Vote........................... 7
3.13 Procedure....................................... 7
3.14 Compensation.................................... 7
ARTICLE FOUR 7
COMMITTEES 7
4.1 Designation...................................... 7
4.2 Number; Qualification; Term...................... 7
4.3 Authority........................................ 8
4.4 Committee Changes................................ 8
4.5 Alternate Members of Committees.................. 8
4.6 Regular Meetings................................. 8
4.7 Special Meetings................................. 8
4.8 Quorum; Majority Vote............................ 8
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C>
4.9 Minutes.......................................... 8
4.10 Compensation..................................... 9
4.11 Responsibility................................... 9
ARTICLE FIVE 9
NOTICE 9
5.1 Method........................................... 9
5.2 Waiver........................................... 9
ARTICLE SIX 9
OFFICERS 9
6.1 Number; Titles; Term of Office................... 9
6.2 Removal.......................................... 10
6.3 Vacancies........................................ 10
6.4 Authority........................................ 10
6.5 Compensation..................................... 10
6.6 Chairman of the Board............................ 10
6.7 President........................................ 10
6.8 Vice Presidents.................................. 10
6.9 Treasurer........................................ 11
6.10 Assistant Treasurers............................ 11
6.11 Secretary....................................... 11
6.12 Assistant Secretaries........................... 11
ARTICLE SEVEN 11
CERTIFICATES AND SHAREHOLDERS 11
7.1 Certificates for Shares.......................... 11
7.2 Replacement of Lost or Destroyed Certificates.... 12
7.3 Transfer of Shares............................... 12
7.4 Registered Stockholders.......................... 12
7.5 Regulations...................................... 12
7.6 Legends.......................................... 12
ARTICLE EIGHT 13
MISCELLANEOUS PROVISIONS 13
8.1 Dividends........................................ 13
8.2 Reserves......................................... 13
8.3 Books and Records................................ 13
8.4 Fiscal Year...................................... 13
8.5 Seal............................................. 13
8.6 Resignations..................................... 13
8.7 Securities of Other Corporations................. 13
8.8 Telephone Meetings............................... 13
8.9 Action Without a Meeting......................... 14
8.10 Invalid Provisions.............................. 14
8.11 Mortgagee, etc.................................. 15
8.12 Headings........................................ 15
8.13 References...................................... 15
8.14 Amendments...................................... 15
</TABLE>
<PAGE>
AMENDED AND RESTATED
BYLAWS
OF
DYNEGY HOLDINGS INC.
A Delaware corporation
PREAMBLE
These Bylaws are subject to, and governed by, the General Corporation
Law of the State of Delaware (the "Delaware General Corporation Law") and the
Certificate of Incorporation of Dynegy Holdings Inc., a Delaware corporation
(the "Corporation"). In the event of a direct conflict between the provisions
of these Bylaws and the mandatory provisions of the Delaware General Corporation
Law or the provisions of the Certificate of Incorporation of the Corporation,
such provisions of the Delaware General Corporation Law or the Certificate of
Incorporation of the Corporation, as the case may be, will be controlling.
ARTICLE ONE
OFFICES
1.1 REGISTERED OFFICE AND AGENT. The registered office and registered
agent of the Corporation shall be as designated from time to time by the
appropriate filing by the Corporation in the office of the Secretary of State of
the State of Delaware.
1.2 OTHER OFFICES. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the Board of Directors
may from time to time determine or as the business of the Corporation may
require.
ARTICLE TWO
MEETINGS OF STOCKHOLDERS
2.1 ANNUAL MEETING. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting or in a duly executed waiver of notice of such
meeting. At such meeting, the stockholders shall elect directors and transact
such other business as may properly be brought before the meeting.
2.2 SPECIAL MEETING. A special meeting of the stockholders may be
called at any time by the Chairman of the Board, the President, or the Board of
Directors, and shall be called by the
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President or the Secretary at the request in writing of the stockholders of
record of not less than ten percent (10%) of all shares entitled to vote at such
meeting, or as otherwise provided by the Certificate of Incorporation of the
Corporation. A special meeting shall be held on such date and at such time as
shall be designated by the person(s) calling the meeting and stated in the
notice of the meeting or in a duly executed waiver of notice of such meeting.
Only such business shall be transacted at a special meeting as may be stated or
indicated in the notice of such meeting or in a duly executed waiver of notice
of such meeting.
2.3 PLACE OF MEETINGS. An annual meeting of stockholders may be held
at any place within or without the State of Delaware designated by the Board of
Directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 NOTICE. Written or printed notice stating the place, day, and time
of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten (10) nor more than sixty (60) days before the date of the meeting,
either personally or by mail, by or at the direction of the President, the
Secretary, or the officer or person(s) calling the meeting, to each stockholder
of record entitled to vote at such meeting. If such notice is to be sent by
mail, it shall be directed to such stockholder at his address as it appears on
the records of the Corporation, unless he shall have filed with the Secretary of
the Corporation a written request that notices to him be mailed to some other
address, in which case it shall be directed to him at such other address. Notice
of any meeting of stockholders shall not be required to be given to any
stockholder who shall attend such meeting in person or by proxy and shall not,
at the beginning of such meeting, object to the transaction of any business
because the meeting is not lawfully called or convened, or who shall, either
before or after the meeting, submit a signed waiver of notice, in person or by
proxy.
2.5 VOTING LIST. At least ten (10) days before each meeting of
stockholders, the Secretary or other officer of the Corporation who has charge
of the Corporation's stock ledger, either directly or through another officer
appointed by him or through a transfer agent appointed by the Board of
Directors, shall prepare a complete list of stockholders entitled to vote
thereat, arranged in alphabetical order and showing the address of each
stockholder and number of shares registered in the name of each stockholder. For
a period of ten (10) days prior to such meeting, such list shall be kept on file
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of meeting or a duly executed waiver of notice of such
meeting or, if not so specified, at the place where the meeting is to be held
and shall be open to examination by any stockholder during ordinary business
hours. Such list shall be produced at such meeting and kept at the meeting at
all times during such meeting and may be inspected by any stockholder who is
present.
2.6 QUORUM. The holders of a majority of the outstanding shares
entitled to vote on a matter, present in person or by proxy, shall constitute a
quorum at any meeting of stockholders, except as otherwise provided by law, the
Certificate of Incorporation of the Corporation, or these Bylaws. If a quorum
shall not be present, in person or by proxy, at any meeting of stockholders,
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the stockholders entitled to vote thereat who are present, in person or by
proxy, or, if no stockholder entitled to vote is present, any officer of the
Corporation may adjourn the meeting from time to time, without notice other than
announcement at the meeting (unless the Board of Directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at which a
quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been
present; provided that, if the adjournment is for more than thirty (30) days or
if after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the adjourned meeting.
2.7 REQUIRED VOTE; WITHDRAWAL OF QUORUM. When a quorum is present at
any meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide any
question brought before such meeting, unless the question is one on which, by
express provision of statute, the Certificate of Incorporation of the
Corporation, or these Bylaws, a different vote is required, in which case such
express provision shall govern and control the decision of such question. The
stockholders present at a duly constituted meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.8 METHOD OF VOTING; PROXIES. Except as otherwise provided in the
Certificate of Incorporation of the Corporation or by law, each outstanding
share, regardless of class, shall be entitled to one (1) vote on each matter
submitted to a vote at a meeting of stockholders. Elections of directors need
not be by written ballot. At any meeting of stockholders, every stockholder
having the right to vote may vote either in person or by a proxy executed in
writing by the stockholder or by his duly authorized attorney-in-fact. Each such
proxy shall be filed with the Secretary of the Corporation before or at the time
of the meeting. No proxy shall be valid after three (3) years from the date of
its execution, unless otherwise provided in the proxy. If no date is stated in a
proxy, such proxy shall be presumed to have been executed on the date of the
meeting at which it is to be voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
2.9 RECORD DATE.
(a) For the purpose of determining stockholders entitled to notice of
or to vote at any meeting of stockholders, or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of
any change, conversion, or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, for any such
determination of stockholders, such date in any case to be not more than
sixty (60) days and not less than ten (10) days prior to such meeting nor
more than sixty (60) days prior to any other action. If no record date is
fixed:
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(i) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held.
(ii) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
(iii) A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the
Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which date shall not be more than
ten (10) days after the date upon which the resolution fixing the record
date is adopted by the Board of Directors. If no record date has been
fixed by the Board of Directors, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by law
or these Bylaws, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders
are recorded. Delivery made to the Corporation's registered office in the
State of Delaware, principal place of business, or such officer or agent
shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of Directors and
prior action by the Board of Directors is required by law or these Bylaws,
the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of
business on the day on which the Board of Directors adopts the resolution
taking such prior action.
2.10 CONDUCT OF MEETING. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the President shall preside at all meetings of stockholders. The
Secretary shall keep the records of each meeting of stockholders. In the absence
or inability to act of any such officer, such officer's duties shall be
performed by the officer given the authority to act for such absent or non-
acting officer under these Bylaws or by some person appointed by the meeting.
2.11 INSPECTORS. The Board of Directors may, in advance of any meeting
of stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If any of the inspectors so appointed shall fail to appear
or act, the chairman of the meeting shall, or if inspectors shall not have been
appointed, the chairman of the meeting may, appoint one or
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more inspectors. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability. The inspectors shall determine the number of shares of capital
stock of the Corporation outstanding and the voting power of each, the number of
shares represented at the meeting, the existence of a quorum, and the validity
and effect of proxies and shall receive votes, ballots, or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots, or consents, determine the results,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the chairman of the meeting, the inspectors
shall make a report in writing of any challenge, request, or matter determined
by them and shall execute a certificate of any fact found by them. No director
or candidate for the office of director shall act as an inspector of an election
of directors. Inspectors need not be stockholders.
ARTICLE THREE
DIRECTORS
3.1 MANAGEMENT. The business and property of the Corporation shall be
managed by the Board of Directors. Subject to the restrictions imposed by law,
the Certificate of Incorporation of the Corporation, or these Bylaws, the Board
of Directors may exercise all the powers of the Corporation.
3.2 NUMBER; QUALIFICATION; ELECTION; TERM. The number of directors,
which shall constitute the entire Board of Directors, shall be not less than
one. The first Board of Directors shall consist of the number of directors named
in the Certificate of Incorporation of the Corporation or, if no directors are
so named, shall consist of the number of directors elected by the
incorporator(s) at an organizational meeting or by unanimous written consent in
lieu thereof. Thereafter, within the limits above specified, the number of
directors which shall constitute the entire Board of Directors shall be
determined by resolution of the Board of Directors or by resolution of the
stockholders at the annual meeting thereof or at a special meeting thereof
called for that purpose. Except as otherwise required by law, the Certificate of
Incorporation of the Corporation, or these Bylaws, the directors shall be
elected at an annual meeting of stockholders at which a quorum is present.
Directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy and entitled to vote on the election of
directors. Each director so chosen shall hold office until the first annual
meeting of stockholders held after his election and until his successor is
elected and qualified or, if earlier, until his death, resignation, or removal
from office. None of the directors need be a stockholder of the Corporation or a
resident of the State of Delaware. Each director must have attained the age of
majority.
3.3 CHANGE IN NUMBER. No decrease in the number of directors
constituting the entire Board of Directors shall have the effect of shortening
the term of any incumbent director.
3.4 REMOVAL. Except as otherwise provided in the Certificate of
Incorporation of the Corporation or these Bylaws, at any meeting of stockholders
called expressly for that purpose, any director or the entire Board of Directors
may be removed, with or without cause, by a vote of the holders of a majority of
the shares then entitled to vote on the election of directors; provided,
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however, that so long as stockholders have the right to cumulate votes in the
election of directors pursuant to the Certificate of Incorporation of the
Corporation, if less than the entire Board of Directors is to be removed, no one
of the directors may be removed if the votes cast against his removal would be
sufficient to elect him if then cumulatively voted at an election of the entire
Board of Directors.
3.5 VACANCIES. Vacancies and newly-created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, though less than a quorum, or by the
sole remaining director, and each director so chosen shall hold office until the
first annual meeting of stockholders held after his election and until his
successor is elected and qualified or, if earlier, until his death, resignation,
or removal from office. If there are no directors in office, an election of
directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly-created directorship, the directors then in
office shall constitute less than a majority of the whole Board of Directors (as
constituted immediately prior to any such increase), the Court of Chancery may,
upon application of any stockholder or stockholders holding at least ten percent
(10%) of the total number of the shares at the time outstanding having the right
to vote for such directors, summarily order an election to be held to fill any
such vacancies or newly-created directorships or to replace the directors chosen
by the directors then in office. Except as otherwise provided in these Bylaws,
when one or more directors shall resign from the Board of Directors, effective
at a future date, a majority of the directors then in office, including those
who have so resigned, shall have the power to fill such vacancy or vacancies,
the vote thereon to take effect when such resignation or resignations shall
become effective, and each director so chosen shall hold office as provided in
these Bylaws with respect to the filling of other vacancies.
3.6 MEETINGS OF DIRECTORS. The directors may hold their meetings and
may have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the Board of Directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.7 FIRST MEETING. Each newly elected Board of Directors may hold its
first meeting for the purpose of organization and the transaction of business,
if a quorum is present, immediately after and at the same place as the annual
meeting of stockholders, and no notice of such meeting shall be necessary.
3.8 ELECTION OF OFFICERS. At the first meeting of the Board of
Directors after each annual meeting of stockholders at which a quorum shall be
present, the Board of Directors shall elect the officers of the Corporation.
3.9 REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held at such times and places as shall be designated from time to time
by resolution of the Board of Directors. Notice of such regular meetings shall
not be required.
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3.10 SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held whenever called by the Chairman of the Board, the President, or
any director.
3.11 NOTICE. The Secretary shall give notice of each special meeting
to each director at least twenty-four (24) hours before the meeting. Notice of
any such meeting need not be given to any director who shall, either before or
after the meeting, submit a signed waiver of notice or who shall attend such
meeting without protesting, prior to or at its commencement, the lack of notice
to him. 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 or waiver of notice of such meeting.
3.12 QUORUM; MAJORITY VOTE. At all meetings of the Board of
Directors, a majority of the directors fixed in the manner provided in these
Bylaws shall constitute a quorum for the transaction of business. If at any
meeting of the Board of Directors there is less than a quorum present, a
majority of those present or any director solely present may adjourn the meeting
from time to time without further notice. Unless the act of a greater number is
required by law, the Certificate of Incorporation of the Corporation, or these
Bylaws, the act of a majority of the directors present at a meeting at which a
quorum is in attendance shall be the act of the Board of Directors. At any time
that the Certificate of Incorporation of the Corporation provides that directors
elected by the holders of a class or series of stock shall have more or less
than one vote per director on any matter, every reference in these Bylaws to a
majority or other proportion of directors shall refer to a majority or other
proportion of the votes of such directors.
3.13 PROCEDURE. At meetings of the Board of Directors, business shall
be transacted in such order as from time to time the Board of Directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
President shall preside at all meetings of the Board of Directors. In the
absence or inability to act of either such officer, a chairman shall be chosen
by the Board of Directors from among the directors present. The Secretary of the
Corporation shall act as the secretary of each meeting of the Board of Directors
unless the Board of Directors appoints another person to act as secretary of the
meeting. The Board of Directors shall keep regular minutes of its proceedings,
which shall be placed in the minute book of the Corporation.
3.14 COMPENSATION. The Board of Directors shall have the authority to
fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the Board of
Directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE FOUR
COMMITTEES
4.1 DESIGNATION. The Board of Directors, by resolution adopted by a
majority of the entire Board of Directors, may designate one or more committees.
4.2 NUMBER; QUALIFICATION; TERM. Each committee shall consist of one
or more
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directors appointed by resolution adopted by a majority of the entire Board of
Directors. The number of committee members may be increased or decreased from
time to time by resolution adopted by a majority of the entire Board of
Directors. Each committee member shall serve as such until the earliest of (i)
the expiration of his term as director, (ii) his resignation as a committee
member or as a director, or (iii) his removal as a committee member or as a
director.
4.3 AUTHORITY. Each committee, to the extent expressly provided in the
resolution establishing such committee, shall have and may exercise all of the
authority of the Board of Directors in the management of the business and
property of the Corporation except to the extent expressly restricted by law,
the Certificate of Incorporation of the Corporation, or these Bylaws.
4.4 COMMITTEE CHANGES. The Board of Directors shall have the power at
any time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.5 ALTERNATE MEMBERS OF COMMITTEES. The Board of Directors may
designate one or more directors as alternate members of any committee. Any such
alternate member may replace any absent or disqualified member at any meeting of
the committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified, the
member or members of such committee present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
4.6 REGULAR MEETINGS. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 SPECIAL MEETINGS. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two (2) days before such special meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
4.8 QUORUM; MAJORITY VOTE. At meetings of any committee, a majority of
the number of members designated by the Board of Directors shall constitute a
quorum for the transaction of business. If a quorum is not present at a meeting
of any committee, a majority of the members present may adjourn the meeting from
time to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at any meeting
at which a quorum is in attendance shall be the act of a committee, unless the
act of a greater number is required by law, the Certificate of Incorporation of
the Corporation, or these Bylaws.
4.9 MINUTES. Each committee shall cause minutes of its proceedings to
be prepared and shall report the same to the Board of Directors upon the request
of the Board of Directors. The minutes of the proceedings of each committee
shall be delivered to the Secretary of the
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Corporation for placement in the minute books of the Corporation.
4.10 COMPENSATION. Committee members may, by resolution of the Board
of Directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.11 RESPONSIBILITY. The designation of any committee and the
delegation of authority to it shall not operate to relieve the Board of
Directors or any director of any responsibility imposed upon it or such director
by law.
ARTICLE FIVE
NOTICE
5.1 METHOD. Whenever by statute, the Certificate of Incorporation of
the Corporation, or these Bylaws, notice is required to be given to any
committee member, director, or stockholder and no provision is made as to how
such notice shall be given, personal notice shall not be required and any such
notice may be given (a) in writing, by mail, postage prepaid, addressed to such
committee member, director, or stockholder at his address as it appears on the
books or (in the case of a stockholder) the stock transfer records of the
Corporation, or (b) by any other method permitted by law (including, but not
limited to, overnight courier service, telegram, telex, or telefax). Any notice
required or permitted to be given by mail shall be deemed to be delivered and
given at the time when the same is deposited in the United States mail as
aforesaid. Any notice required or permitted to be given by overnight courier
service shall be deemed to be delivered and given at the time delivered to such
service with all charges prepaid and addressed as aforesaid. Any notice required
or permitted to be given by telegram, telex, or telefax shall be deemed to be
delivered and given at the time transmitted with all charges prepaid and
addressed as aforesaid.
5.2 WAIVER. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
Certificate of Incorporation of the Corporation, 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 equivalent to the
giving of such notice. Attendance of a stockholder, director or committee member
at a meeting shall constitute a waiver of notice of such meeting, except where
such person attends for the express purpose of objecting to the transaction of
any business on the ground that the meeting is not lawfully called or convened.
ARTICLE SIX
OFFICERS
6.1 NUMBER; TITLES; TERM OF OFFICE. The officers of the Corporation
shall be a President, a Secretary, and such other officers as the Board of
Directors may from time to time elect or appoint, including a Chairman of the
Board, one or more Vice Presidents (with each Vice President to have such
descriptive title, if any, as the Board of Directors shall determine), and a
Treasurer. Each officer shall hold office until his successor shall have been
duly elected
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and shall have qualified, until his death, or until he shall resign or shall
have been removed in the manner hereinafter provided. Any two or more offices
may be held by the same person. None of the officers need be a stockholder or a
director of the Corporation or a resident of the State of Delaware.
6.2 REMOVAL. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the
best interest of the Corporation will be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
6.3 VACANCIES. Any vacancy occurring in any office of the Corporation
(by death, resignation, removal or otherwise), may be filled by the Board of
Directors.
6.4 AUTHORITY. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these Bylaws or
as may be determined by resolution of the Board of Directors not inconsistent
with these Bylaws.
6.5 COMPENSATION. The compensation, if any, of officers and agents
shall be fixed from time to time by the Board of Directors; provided, however,
that the Board of Directors may delegate the power to determine the compensation
of any officer and agent (other than the officer to whom such power is
delegated) to the Chairman of the Board or the President.
6.6 CHAIRMAN OF THE BOARD. The Chairman of the Board, if elected by
the Board of Directors, shall be the Chief Executive Officer of the Corporation
and, subject to the Board of Directors, he shall have general executive charge,
management, and control of the properties and operations of the Corporation in
the ordinary course of its business, with all such powers with respect to such
properties and operations as may be reasonably incident to such
responsibilities. Such officer shall preside at all meetings of the stockholders
and of the Board of Directors. Such officer may sign all certificates for shares
of stock of the Corporation.
6.7 PRESIDENT. The President shall be the chief operating officer of
the Corporation, and subject to the Board of Directors, shall have charge of the
day to day operations and management of the Corporation and its properties, with
all such powers with respect to such properties and operations as may be
reasonably incident to such responsibilities. If the Board of Directors has not
elected a Chairman of the Board or in the absence or inability to act of the
Chairman of the Board, the President shall exercise all of the powers and
discharge all of the duties of the Chairman of the Board. As between the
Corporation and third parties, any action taken by the President in the
performance of the duties of the Chairman of the Board shall be conclusive
evidence that there is no Chairman of the Board or that the Chairman of the
Board is absent or unable to act.
6.8 VICE PRESIDENTS. Each Vice President shall have such powers and
duties as may be assigned to him by the Board of Directors, the Chairman of the
Board, or the President, and (in order of their seniority as determined by the
Board of Directors, or, in the absence of such determination, as determined by
the length of time they have held the office of Vice President)
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shall exercise the powers of the President during that officer's absence or
inability to act. As between the Corporation and third parties, any action taken
by a Vice President in the performance of the duties of the President shall be
conclusive evidence of the absence or inability to act of the President at the
time such action was taken.
6.9 TREASURER. The Treasurer shall have custody of the Corporation's
funds and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Corporation in such depository or depositories as may be
designated by the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors, the Chairman of the Board, or the
President.
6.10 ASSISTANT TREASURERS. Each Assistant Treasurer shall have such
powers and duties as may be assigned to him by the Board of Directors, the
Chairman of the Board, or the President. The Assistant Treasurers (in the order
of their seniority as determined by the Board of Directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Treasurer) shall exercise the powers of the Treasurer during
that officer's absence or inability to act.
6.11 SECRETARY. Except as otherwise provided in these Bylaws, the
Secretary shall keep the minutes of all meetings of the Board of Directors and
of the stockholders in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board or the President, in the name of the Corporation, all contracts of the
Corporation and affix the seal of the Corporation thereto. He may sign with the
Chairman of the Board or the President all certificates for shares of stock of
the Corporation, and he shall have charge of the certificate books, transfer
books, and stock papers as the Board of Directors may direct, all of which shall
at all reasonable times be open to inspection by any director upon application
at the office of the Corporation during business hours. He shall in general
perform all duties incident to the office of the Secretary, subject to the
control of the Board of Directors, the Chairman of the Board, and the President.
6.12 ASSISTANT SECRETARIES. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the Board of Directors, the
Chairman of the Board, or the President. The Assistant Secretaries (in the order
of their seniority as determined by the Board of Directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Secretary) shall exercise the powers of the Secretary during
that officer's absence or inability to act.
ARTICLE SEVEN
CERTIFICATES AND SHAREHOLDERS
7.1 CERTIFICATES FOR SHARES. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the Board of
Directors. The certificates shall be signed by the Chairman of the Board or the
President or a Vice President and also by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer. Any and all signatures
on the certificate may be a facsimile and may be sealed with the seal of the
Corporation or a facsimile
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thereof. If 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, such
certificate 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. The
certificates shall be consecutively numbered and shall be entered in the books
of the Corporation as they are issued and shall exhibit the holder's name and
the number of shares.
7.2 REPLACEMENT OF LOST OR DESTROYED CERTIFICATES. The Board of
Directors may direct a new certificate or certificates to be issued in place of
a certificate or certificates theretofore issued by the Corporation and alleged
to have been lost or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate or certificates representing shares to be
lost or destroyed. When authorizing such issue of a new certificate or
certificates the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the Corporation a bond with a
surety or sureties satisfactory to the Corporation in such sum as it may direct
as indemnity against any claim, or expense resulting from a claim, that may be
made against the Corporation with respect to the certificate or certificates
alleged to have been lost or destroyed.
7.3 TRANSFER OF SHARES. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 REGISTERED STOCKHOLDERS. The Corporation shall be entitled to treat
the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
7.5 REGULATIONS. The Board of Directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer, and registration or the replacement of
certificates for shares of stock of the Corporation.
7.6 LEGENDS. The Board of Directors shall have the power and authority
to provide that certificates representing shares of stock bear such legends as
the Board of Directors deems appropriate to assure that the Corporation does not
become liable for violations of federal or state securities laws or other
applicable law.
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ARTICLE EIGHT
MISCELLANEOUS PROVISIONS
8.1 DIVIDENDS. Subject to provisions of law and the Certificate of
Incorporation of the Corporation, dividends may be declared by the Board of
Directors at any regular or special meeting and may be paid in cash, in
property, or in shares of stock of the Corporation. Such declaration and payment
shall be at the discretion of the Board of Directors.
8.2 RESERVES. There may be created by the Board of Directors out of
funds of the Corporation legally available therefor such reserve or reserves as
the directors from time to time, in their discretion, consider proper to provide
for contingencies, to equalize dividends, or to repair or maintain any property
of the Corporation, or for such other purpose as the Board of Directors shall
consider beneficial to the Corporation, and the Board of Directors may modify or
abolish any such reserve in the manner in which it was created.
8.3 BOOKS AND RECORDS. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and Board of Directors and shall keep at its registered office or
principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 FISCAL YEAR. The fiscal year of the Corporation shall be fixed by
the Board of Directors; provided, that if such fiscal year is not fixed by the
Board of Directors and the selection of the fiscal year is not expressly
deferred by the Board of Directors, the fiscal year shall be the calendar year.
8.5 SEAL. The seal of the Corporation shall be such as from time to
time may be approved by the Board of Directors.
8.6 RESIGNATIONS. Any director, committee member, or officer may
resign by so stating at any meeting of the Board of Directors or by giving
written notice to the Board of Directors, the Chairman of the Board, the
President, or the Secretary. Such resignation shall take effect at the time
specified therein or, if no time is specified therein, immediately upon its
receipt. Unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
8.7 SECURITIES OF OTHER CORPORATIONS. The Chairman of the Board, the
President, or any Vice President of the Corporation shall have the power and
authority to transfer, endorse for transfer, vote, consent, or take any other
action with respect to any securities of another issuer which may be held or
owned by the Corporation and to make, execute, and deliver any waiver, proxy, or
consent with respect to any such securities.
8.8 TELEPHONE MEETINGS. Members of the Board of Directors and members
of a committee of the Board of Directors may participate in and hold a meeting
of such Board of Directors or committee by means of a conference telephone or
similar communications equipment by means of which persons participating in the
meeting can hear each other, and
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participation in a meeting pursuant to this section shall constitute presence in
person at such meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
8.9 ACTION WITHOUT A MEETING.
(a) Unless otherwise provided in the Certificate of Incorporation of
the Corporation, any action required by the Delaware General Corporation
Law to be taken at any annual or special meeting of the stockholders, or
any action which may be taken at any annual or special meeting of the
stockholders, may be taken without a meeting, without prior notice, and
without a vote, if a consent or consents in writing, setting forth the
action so taken, shall be signed by the holders (acting for themselves or
through a proxy) of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at
a meeting at which the holders of all shares entitled to vote thereon were
present and voted and shall be delivered to the Corporation by delivery to
its registered office in the State of Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Every
written consent of stockholders shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective
to take the corporate action referred to therein unless, within sixty (60)
days of the earliest dated consent delivered in the manner required by this
Section 8.9(a) to the Corporation, written consents signed by a sufficient
number of holders to take action are delivered to the Corporation by
delivery to its registered office in the State of Delaware, its principal
place of business, or an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of stockholders are recorded.
Delivery made to the Corporation's registered office, principal place of
business, or such officer or agent shall be by hand or by certified or
registered mail, return receipt requested.
(b) Unless otherwise restricted by the Certificate of Incorporation of
the Corporation or by these Bylaws, any action required or permitted to be
taken at a meeting of the Board of Directors, or of any committee of the
Board of Directors, may be taken without a meeting if a consent or consents
in writing, setting forth the action so taken, shall be signed by all the
directors or all the committee members, as the case may be, entitled to
vote with respect to the subject matter thereof, and such consent shall
have the same force and effect as a vote of such directors or committee
members, as the case may be, and may be stated as such in any certificate
or document filed with the Secretary of State of the State of Delaware or
in any certificate delivered to any person. Such consent or consents shall
be filed with the minutes of proceedings of the board or committee, as the
case may be.
8.10 INVALID PROVISIONS. If any part of these Bylaws shall be held
invalid or inoperative for any reason, the remaining parts, so far as it is
possible and reasonable, shall remain valid and operative.
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8.11 MORTGAGEE, ETC. With respect to any deed, deed of trust,
mortgage, or other instrument executed by the Corporation through its duly
authorized officer or officers, the attestation to such execution by the
Secretary of the Corporation shall not be necessary to constitute such deed,
deed of trust, mortgage, or other instrument a valid and binding obligation
against the Corporation unless the resolutions, if any, of the Board of
Directors authorizing such execution expressly state that such attestation is
necessary.
8.12 HEADINGS. The headings used in these Bylaws have been inserted
for administrative convenience only and do not constitute matter to be construed
in interpretation.
8.13 REFERENCES. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.14 AMENDMENTS. These Bylaws may be altered, amended, or repealed or
new Bylaws may be adopted by the stockholders or by the Board of Directors at
any regular meeting of the stockholders or the Board of Directors or at any
special meeting of the stockholders or the Board of Directors if notice of such
alteration, amendment, repeal, or adoption of new Bylaws be contained in the
notice of such special meeting.
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EXHIBIT 21
<TABLE>
<CAPTION>
STATE OR JURISDICTION OF SUBSIDIARY
SUBSIDIARIES OF DYNEGY INC. INCORPORATION OR FORMATION
- -----------------------------------------------------------------------------------------------
<S> <C>
Dynegy Power Corp. Delaware
- -----------------------------------------------------------------------------------------------
Dynegy Global Energy, Inc. Delaware
- -----------------------------------------------------------------------------------------------
DMT Holdings, Inc. Delaware
- -----------------------------------------------------------------------------------------------
Dynegy GP Inc. Delaware
- -----------------------------------------------------------------------------------------------
Dynegy Midstream, Inc. Delaware
- -----------------------------------------------------------------------------------------------
Dynegy Regulated Holdings, Inc. Delaware
- -----------------------------------------------------------------------------------------------
Dynegy Upper Holdings, LLC Delaware
- -----------------------------------------------------------------------------------------------
Dynegy Administrative Services Company Delaware
- -----------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 24, 1999
and March 20, 1998 included in the Form 10-K reports of Dynegy Holding Inc.
(formerly Dynegy Inc. or NGC Corporation, as applicable) for the years ended
December 31, 1998 and December 31, 1997, respectively, and to all references to
our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
-----------------------
ARTHUR ANDERSEN LLP
Houston, Texas
February 1, 2000
