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File No. 70-8849
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Amendment No. 2
Form U-1
APPLICATION-DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
THE COLUMBIA GAS SYSTEM, INC.
20 Montchanin road
Wilmington, DE 19807
COLUMBIA ENERGY SERVICES CORPORATION
121 Hill Pointe Drive, Suite 100
Canonsburg, PA 15317
COLUMBIA COAL GASIFICATION CORPORATION
COLUMBIA NATURAL RESOURCES, INC.
900 Pennsylvania Avenue
Charleston, WV 25362
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(Names of company or companies filing this statement
and addresses of principal executive offices)
L. J. Bainter, Treasurer
The Columbia Gas System, Inc.
20 Montchanin Road
Wilmington, DE 19807
Robert Gustafson, Controller
Columbia Energy Services Corporation
121 Hill Pointe Drive, Suite 100
Canonsburg, PA 15317
M. A. Chandler, Treasurer
Columbia Coal Gasification Corporation
Columbia Natural Resources, Inc.
900 Pennsylvania Avenue
Charleston, WV 25362
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(Name and address of agent for service)
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ITEM 1. DESCRIPTION OF PROPOSED TRANSACTION - THE SECOND PARAGRAPH UNDER
SECTION 2) SHOULD BE REPLACED IN ITS ENTIRETY WITH THE FOLLOWING:
The expected benefits to be achieved as a result of the merger,
therefore, include: (i) a more reliable and flexible business law applicable to
the corporate governance of CES (DE), and (ii) the avoidance of the Kentucky
intangible property tax which is imposed at a rate of 25 cents per $100 of
value on certain intangible personal property, including but not limited to,
accounts receivable, patents, trademarks, copyrights and licensing or royalty
agreements. With respect to this Kentucky tax, a special rate of one and
one-half cents per one hundred dollars of value may apply depending on the
taxable situs of the property and whether the business transactions were
substantially performed outside the state. The amount of the tax savings
achieved cannot be quantified since the savings vary depending on the future
development of The Fast LaneTM.
EXHIBIT INDEX
(a) Exhibits
B-1 Form of Plan of Reorganization and Merger
for Columbia Energy Services Corporation
(Kentucky) into Columbia Energy Services
Corporation (Delaware).
B-2 Form of Agreement and Plan of Merger of
Columbia Natural Resources, Inc. and
Columbia Coal Gasification Corporation.
F Opinion of Counsel
G Financial Data Schedules (filed April 19,
1996)
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SIGNATURES
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, each of the undersigned companies has duly caused this
Application-Declaration to be signed on its behalf by the undersigned thereunto
duly authorized.
The signatures of the Declarants and of the persons signing on
their behalf are restricted to the information contained in this
Application-Declaration which is pertinent to the application of the respective
companies.
THE COLUMBIA GAS SYSTEM, INC.
Date: June 20, 1996 By: /s/ L. J. Bainter
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L. J. Bainter Treasurer
COLUMBIA ENERGY SERVICES CORPORATION
COLUMBIA COAL GASIFICATION CORPORATION
COLUMBIA NATURAL RESOURCES, INC.
Date: June 20, 1996 By: /s/ L. J. Bainter
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L. J. Bainter
Vice President
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AGREEMENT AND PLAN OF MERGER OF COLUMBIA ENERGY SERVICES
CORPORATION (KENTUCKY) INTO COLUMBIA ENERGY
SERVICES CORPORATION (DELAWARE), THE SURVIVING CORPORATION
Pursuant to the provisions of Subtitle 11 of Title XXIII of the
Kentucky Revised Statutes ("KRS") and Section 252 of the Delaware General
Corporation Law ("DGCL"), Columbia Energy Services Corporation, a Kentucky
corporation (the "Kentucky Corporation"), and Columbia Energy Services
Corporation, a Delaware corporation (the "Delaware Corporation"), hereby set
forth their plan of merger, the sole purpose of which is to change the state of
domicile and incorporation of Columbia Energy Services Corporation from the
Commonwealth of Kentucky to the State of Delaware.
In pursuit of the above and as required by KRS Section 271B.11-050 and
Section 252 of the DGCL, the following is adopted:
a. The surviving corporation shall be the Delaware Corporation.
b. All of the assets and liabilities of the Kentucky Corporation
shall be transferred to the Delaware Corporation and said
Delaware Corporation shall accept such assets and liabilities
and be obligated thereby as if they were obtained and incurred
by the Delaware Corporation.
c. All authorized shares of the Delaware Corporation shall be
issued to the Kentucky Corporation which shall simultaneously
exchange said shares for all issued and outstanding stock of
the Kentucky Corporation which shall be retired leaving the
Delaware Corporation the surviving corporation.
d. The laws of the State of Delaware shall govern the surviving
corporation.
e. (i) This Agreement and Plan may be terminated by the Board
of Directors of either Corporation prior to filing with
the Secretary of State of the State of Delaware.
(ii) This Agreement and Plan may be amended by agreement of
the Board of Directors of the parties hereto; provided,
however, that if said amendment occurs subsequent to
adoption of this Agreement and Plan by the shareholder
of either party, such amendment shall not (1) alter or
change the amount or kind of shares, securities, cash,
property and/or rights to be received in exchange for,
or on conversion of, all or any of the shares of any
class or series thereof of such constituent corporation,
(2) alter or change any term of the certificate of
incorporation of the surviving corporation to be
effected by the merger or consolidation, or (3) alter or
change any of the terms and conditions of this Agreement
and Plan if such alteration or change would adversely
affect the holders of any class or series thereof of
such corporation.
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f. This Agreement and Plan is contingent upon receipt from the
U.S. Securities and Exchange Commission of an order approving
an Application/Declaration filed by the Parties hereto and The
Columbia Gas System, Inc., under the Public Utility Holding
Company Act of 1935 in such form as is acceptable to the said
parties and The Columbia Gas System, Inc., in their sole
discretion.
g. Pursuant to KRS Section 271B.11-070(2), upon the effective
date of the merger contemplated herein, the Delaware
Corporation hereby consents:
(i) To the appointment of the Secretary of State of the
Commonwealth of Kentucky as its agent for service of
process in a proceeding to enforce any obligation or
the rights of dissenting shareholders of the Kentucky
Corporation;
(ii) To promptly pay to the dissenting shareholders of the
Kentucky Corporation the amount, if any, to which
they are entitled under KRS Subtitle 13; and
(iii) To the extent required by Section 200 of the Kentucky
Constitution, that the courts of the Commonwealth of
Kentucky shall retain jurisdiction over that part of
the corporate property within the limits of the
Commonwealth of Kentucky in all matters which may
arise, as if the transaction had not taken place.
Accepted and agreed to this ______ day of June, 1996:
COLUMBIA ENERGY SERVICES
CORPORATION (KENTUCKY)
By:
__________________________________
Its: President
COLUMBIA ENERGY SERVICES
CORPORATION (DELAWARE)
By:
___________________________________
Its: Incorporator
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AGREEMENT AND PLAN OF MERGER OF COLUMBIA NATURAL RESOURCES,
INC. AND COAL GASIFICATION CORPORATION
AGREEMENT AND PLAN OF MERGER dated as of June ____, 1996 among
Columbia Natural Resources, Inc., a Texas Corporation (CNR) and wholly-owned
subsidiary of The Columbia Gas System, Inc. (Columbia) and Columbia Coal
Gasification Corporation, a Delaware corporation and wholly-owned subsidiary
of CNR (CGC).
WHEREAS, CNR and CGC deem it advisable for the overall operating
efficiency and economy of administration of the properties of CGC and for CNR
to realize certain state tax benefits that CGC be merged into CNR, with CNR
being the surviving corporation.
WHEREAS, CGC has authorized capital of 1,939,000 shares of common
stock, par value of $25 per share, of which said stock is issued and
outstanding to CNR, and CNR has authorized capital of 8,000,000 shares of
common stock, par value of $25 per share, of which 5,378,628 shares are
outstanding and issued to Columbia.
WHEREAS, the respective Boards of Directors of CNR and CGC have
approved the merger of CGC into CNR upon the terms, and subject to the
conditions, set forth in this Agreement, and approved and adopted the Plan of
Merger contained herein.
NOW, THEREFORE, CNR and CGC, parties to this Agreement and Plan of
Merger in consideration of the premises and of the mutual agreements contained
herein and the mutual benefits thereby provided, agree as follows:
1. Merger. Pursuant to Section 5.16 of the Texas Business
Corporation Act and Section 253 of the Delaware General Corporation Law,
Columbia Coal Gasification Corporation (CGC) shall be, and hereby, is merged
into Columbia Natural Resources, Inc. (CNR), which shall be the surviving
corporation.
2. Effective Date. This Agreement and Plan of Merger is
contingent upon receipt from the U.S. Securities and Exchange Commission of
order approving an Application/Declaration filed by the Parties hereto and The
Columbia Gas System, Inc. (Columbia), under the Public Utility Holding Company
Act of 1935 in such form as is acceptable to the said parties and Columbia in
their sole discretion. Thereafter, this Agreement and Plan of Merger shall
become effective immediately upon compliance with the laws of the states of
Texas and Delaware, the time of such effectiveness being hereinafter called the
Effective Date.
3. Retirement of CGC Stock. Forthwith upon the Effective Date,
each of the 1,939,000 shares of the Common Stock of CGC presently issued and
outstanding and all rights in respect thereof, shall be retired, and no shares
of Common Stock or other securities of CGC shall be issued in respect thereof.
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4. Outstanding Capital. The outstanding capital stock of CNR
following the Effective Date shall be 5,378,628 shares of common stock, par
value of $25 per share, unless and until the same shall be changed in
accordance with the laws of the State of Texas.
5. Certificate of Incorporation. The Certificate of
Incorporation of CNR, as it exists prior to the Effective Date, shall be the
same following the Effective Date, unless and until the same shall be amended
or repealed in accordance with the provisions thereof, which power to amend or
repeal is hereby expressly reserved, and all rights or powers of whatsoever
nature conferred in such Certificate of Incorporation or herein upon any
shareholder or director or officer of CNR or upon any other persons whomsoever
are subject to the reserve power.
6. Bylaws. The Bylaws of CNR, as they exist prior to the
Effective Date, shall be amended as necessary, to be the Bylaws of CNR
following the Effective Date unless and until the same shall be amended or
repealed in accordance with the provisions thereof.
7. Board of Directors and Officers. The members of the Board of
Directors and the officers of CNR immediately before the Effective Date shall
be those persons who will be the members of the Board of Directors and the
officers, respectively, of CNR immediately after the Effective Date and such
persons shall serve in such offices, respectively, for the terms provided by
law or in CNR's Bylaws, or until their respective successors are elected and
qualified.
8. Further Assurance of Title. If, at any time, CNR shall
consider or be advised that any acknowledgments or assurances in law or other
similar actions are necessary or desirable in order to acknowledge or confirm
in and to CNR any right, title, or interest of CGC held immediately prior to
the Effective Date, CGC and its proper officers and directors shall, and will,
execute and deliver all such acknowledgments or assurances in law and do all
things necessary or proper to acknowledge or confirm such right, title, or
interest in CNR as shall be necessary to carry out the purposes of this
Agreement and Plan of Merger, and CNR and the proper officers and directors
thereof are fully authorized to take any and all such action in the name of
CGC or otherwise.
9. Rights and Liabilities of CNR. At and after the Effective
Date, CNR shall succeed to and possess, without further act or deed, all of the
estate, rights, privileges, powers, and franchises, both public and private,
and all of the property, real, personal, and mixed, of each of the parties
hereto; all debts due to CGC or whatever account shall be vested in CNR; all
claims, demands, property, rights, privileges, powers and franchises and every
other interest of either of the parties hereto shall be as effectively the
property of CNR as they were of the respective parties hereto; the title to any
real estate vested by deed or otherwise in CGC shall not revert or be in any
way impaired by reason of the merger, but shall be vested in CNR; all rights of
creditors and all liens upon any property of either of the parties hereto shall
be preserved unimpaired, limited in lien to the property affected by such lien
at the Effective Date of the merger; all debts, liabilities, and duties of the
respective parties hereto shall thenceforth attach to CNR and may be enforced
against it to the same extent as if such debts, liabilities, and duties had
been incurred or contracted by it; and CNR shall indemnify and hold harmless
the officers and
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directors of each of the parties hereto against all such debts, liabilities and
duties and against all claims and demands arising out of the merger.
10. Book Entries. The merger contemplated hereby shall be made
upon the books of CNR in accordance with the following:
(a) the assets and liabilities of CGC shall be recorded
at the amounts at which they are carried on the books of CGC as of the
Effective Date.
(b) there shall be credited to the Capital Account the
Total Common Stock Equity of CGC as of the Effective Date, resulting in a
balance in the Capital Account equal to the aggregate amount of the part value
of all of the Common Stock of CGC and CNR.
(c) there shall be credited to the Capital Surplus
Account an amount equal to that carried in the Capital Surplus Account of CGC
as of the Effective Date.
(d) there shall be debited to the Earned Surplus Account
an amount equal to that carried on the Earned Surplus Account of CGC as of the
Effective Date.
11. Service of Process on CNR. CNR agrees that it may be served
with process in the State of Delaware in any proceeding for enforcement of any
obligation of CGC as well as for the enforcement of any obligation of CNR
arising prior to the merger, and it does irrevocably appoint the Secretary of
State for the State of Delaware as agent to accept service of process in any
such suit or other proceeding.
12. Termination. This Agreement and Plan of Merger may be
terminated and abandoned by action of the Board of Directors of CNR or CGC at
any time prior to the Effective Date.
13. Plan of Reorganization. This Agreement and Plan of Merger
constitutes a Plan of Reorganization for purposes of Section 368(a)(1)(A) of
the Internal Revenue Code of 1986, as amended, to be carried out in the manner,
on the terms and subject to the conditions herein set forth.
IN WITNESS WHEREOF, CNR and CGC, pursuant to the approval and
authority duly given by resolutions adopted by their respective Boards of
Directors have caused this Agreement and Plan of Merger to be executed by an
authorized officer of each party thereto.
COLUMBIA NATURAL RESOURCES, INC.
BY: ________________________
PRESIDENT:
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SEAL
ATTEST:
_____________________________
SECRETARY
COLUMBIA COAL GASIFICATION CORPORATION.
BY: ________________________
PRESIDENT:
SEAL
ATTEST:
_____________________________
SECRETARY
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June 20, 1996
U.S. Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: The Columbia Gas System, Inc.
File No. 70-8849
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Ladies and Gentlemen:
As counsel for The Columbia Gas System, Inc. ("Columbia"), a
Delaware corporation and a holding company registered under the Public Utility
Holding Company Act of 1935 (the "Act"), and at its request, I deliver to you
this opinion for filing as Exhibit F to the Application-Declaration, as
previously amended by Amendment No. 1 and as now amended by Amendment No. 2
(the last being filed simultaneously herewith) (collectively referred to as the
"Application-Declaration"), of Columbia requesting authorization, as more fully
described in the Application-Declaration, to change the state of domicile of
its energy marketing subsidiary and to merge its coal subsidiary into its
Appalachian oil and gas subsidiary (the "Proposed Transactions").
In connection with the above, I have examined:
(i) the Application-Declaration, as amended;
(ii) such other documents, records and matters of law as I
deemed necessary to enable me to render this opinion.
Based upon the foregoing and relying thereupon, I am of the
opinion that if the Proposed Transactions are consummated in accordance with
the Application-Declaration:
(a) all state and federal laws applicable to such
Proposed Transactions will have been complied with;
(b) Columbia, Columbia Energy Services Corporation,
Columbia Natural Resources, Inc. and Columbia Coal
Gasification Corporation are validly organized and
duly existing in their respective states of
incorporation;
(c) the common stock issued in the Proposed Transactions
will be validly issued, fully paid and non-assessable
and the liabilities assumed in the Proposed
Transactions, including debt securities assumed by
the respective successors-in-interest, will be valid
and binding obligations of such successors-in-
interest in accordance with the terms of such
obligations.
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U.S. Securities and Exchange Commission
June 18, 1996
Page Two
(d) Columbia Energy Services Corporation (DE) through its
merger with Columbia Energy Services Corporation (KY)
will legally acquire all of the assets of said
corporation. Columbia Natural Resources, Inc. will
legally acquire the common stock of Columbia Coal
Gasification Corporation and through its subsequent
merger with Columbia Coal Gasification Corporation
will legally acquire all of the assets of said
corporation; and
(e) the consummation of the Proposed Transactions will
not violate the legal rights of the holders of any
securities issued by Columbia, or by any associate
company thereof.
I hereby consent to the filing of this opinion as an Exhibit
to the Application-Declaration.
Very truly yours,
/s/ Joyce Koria Hayes
-----------------------------------
Joyce Koria Hayes, Esquire
Associate General Counsel &
Assistant Secretary
Columbia Gas System Service Corporation
JKH/th
