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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
AMENDMENT NO. 1
TO
FORM U5S
ANNUAL REPORT
FOR THE YEAR ENDED DECEMBER 31, 1997
FILED PURSUANT TO THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
COLUMBIA ENERGY GROUP
(NAME OF REGISTERED HOLDING COMPANY)
13880 DULLES CORNER LANE
HERNDON, VIRGINIA 20171-4600
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This Amendment No. 1 to the registrant's Annual Report (Form U5S) for 1997
amends Exhibit B - Corporate organization and by-laws exhibits filed pursuant to
the Public Holding Company Act of 1935. Some of the exhibits listed as filed
herewith were not filed electronically. This Amendment No. 1 files all the
exhibits listed as filed herewith as exhibits to the 1997 Form U5S.
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SIGNATURE
This registrant has duly caused this Amendment to its annual report to be
signed on its behalf by the undersigned thereunto duly authorized pursuant to
the requirements of the Public Utility Holding Company Act of 1935, such company
being a registered holding company.
COLUMBIA ENERGY GROUP
By: /s/ J.W. Grossman
-----------------------------
J.W. Grossman
Vice President and Controller
Date: October 1, 1998
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COLUMBIA ENERGY GROUP
FORM U5S ANNUAL REPORT
FOR THE YEAR ENDED DECEMBER 31, 1997
EXHIBITS
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COLUMBIA ENERGY GROUP
FORM U5S ANNUAL REPORT
FOR THE YEAR ENDED DECEMBER 31, 1997
EXHIBITS
Exhibit 1-A: Certificate of Amendment of Certificate of Incorporation of
Columbia Energy Group dated January 16, 1998.
Exhibit 2-A: Certificate of Amendment of Certificate of Incorporation of
Columbia Atlantic Trading Corporation dated August 18, 1997.
Exhibit 3-A: Certificate of Incorporation of Columbia Power Marketing
Corporation dated June 19, 1997.
Exhibit 4-A: Certificate of Amendment of Certificate of Incorporation of
Columbia Power Marketing Corporation dated March 2, 1998.
Exhibit 1-B: By-Laws of Columbia Power Marketing Corporation dated
June 23, 1997.
Exhibit 2-B: Amendment of the By-Laws of Columbia Gas of Kentucky adopted
November 1, 1997.
Exhibit 3-B: Amendment of the By-Laws of Columbia Gas of Maryland, Inc. as
adopted June 30, 1997.
Exhibit 4-B: Amendment of the By-Laws of Columbia Gas of Maryland, Inc. as
adopted November 1, 1997.
Exhibit 5-B: Amendment of the By-Laws of Columbia Gas of Ohio, Inc. as
adopted November 1, 1997.
Exhibit 6-B: Amendment of the By-Laws of Columbia Gas of Pennsylvania, Inc.
as adopted November 1, 1997.
Exhibit 5-A: Certificate of Amendment of Restated Certificate of Incorporation
of Columbia Gas System Service Corporation dated June 30, 1997.
Exhibit 7-B: Amendment of the By-Laws of Columbia Energy Group Service
Corporation as adopted December 29, 1997.
Exhibit 6-A: Amended and Restated Certificate of Incorporation of Columbia
Gas Transmission Corporation dated November 28, 1995.
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Exhibit 7-A: Certificate of Amendment of Restated Certificate of
Incorporation of Columbia Gas Transmission Corporation dated
June 30, 1997.
Exhibit 8-A: Certificate of Amendment of Certificate of Incorporation of
Columbia Gulf Transmission Company dated June 30, 1997.
Exhibit 9-A: Certificate of Amendment of Certificate of Incorporation CLNG
Corporation dated January 15, 1997.
Exhibit 10-A: Amended and Restated Certificate of Incorporation of ALAMCO,
Inc. dated August 7, 1997.
Exhibit 8-B: Amended and Restated By-Laws of ALAMCO, Inc. as adopted
August 7, 1997.
Exhibit 11-A: Certificate of Incorporation of Alamco-Delaware dated
July 21, 1994.
Exhibit 9-B: By-Laws of Alamco-Delaware to be filed at a later date.
Exhibit 12-A: Certificate of Incorporation of Hawg-Hauling & Disposal, Inc.
dated March 17, 1993.
Exhibit 10-B: By-Laws of Hawg-Hauling & Disposal, Inc. dated March 12, 1993.
Exhibit 13-A: Certificate of Formation of EnergyNet, L.L.C. dated June 13,
1997.
Exhibit 11-B: By-Laws of EnergyNet, L.C.C. dated June 13, 1997.
Exhibit 14-A: Certificate of Merger of Commonwealth Propane, Inc., a Virginia
Corporation, with and into Columbia Propane Corporation, A
Delaware Corporation dated October 1, 1997.
Exhibit 15-A: Restated Certificate of Incorporation of Columbia Propane
Corporation dated October 1, 1997.
Exhibit 12-B: Restated By-Laws of Columbia Propane Corporation as adopted
October 1, 1997.
Exhibit 16-A: Amendment of the By-Laws of Commonwealth Gas Services, Inc. as
adopted January 16, 1998.
Exhibit 13-B: Amendment of the By-Laws of Commonwealth Gas Services, Inc.
dated November 1, 1997.
Exhibit 17-A: Certificate of Amendment of Certificate of Incorporation of
Tristar Capital Corporation dated June 30, 1997.
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Exhibit 18-A: Certificate of Amendment of Restated Certificate of
Incorporation of Tristar Ventures Corporation dated June 1,
1997.
Exhibit 19-A: Certificate of Amendment of Restated Certificate of
Incorporation of Tristar Ventures Corporation dated January 16,
1998.
Exhibit D: Tax Allocation dated 1997.
Exhibit 27: Financial Data Tables
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Exhibit 1-A
Page 1 of 3
RESOLVED, that the form, terms and provisions of the following Plan of
Merger and the consummation of the Merger and Name Change (as such terms are
defined therein) be, and they hereby are, authorized, approved and adopted in
all respects:
PLAN OF MERGER
FIRST: Upon the Effective Time of the Merger (as defined in Article
SECOND hereof), Columbia Energy Group, Inc., a Delaware corporation ("CEG")
shall be merged (the "Merger") with and into The Columbia Gas System, Inc.
("Columbia"). The merger shall be effectuated pursuant to the provisions of
Section 253 of the Delaware General Corporation Law, 8 Del. C. Sections 101 et.
seq. (the "DGCL"), and this plan of merger (the "Plan of Merger"). Columbia
shall be, immediately prior to the Merger, the owner of all of the issued and
outstanding shares of each class of CEG's stock. Columbia shall be the
corporation surviving the Merger and hereinafter sometimes is referred to as the
"Surviving Corporation." CEG and Columbia are hereinafter sometimes collectively
referred to as the "Constituent Corporations." The Surviving Corporation shall
continue its corporate existence under the DGCL, including, without limitation,
the provisions of Section 259 of the DGCL, and shall possess all the rights and
assets of each of the Constituent Corporations and be subject to, and be deemed
to have hereby assumed, all the liabilities and obligations of each of the
Constituent Corporations in accordance with the provisions of the DGCL.
SECOND: The Merger shall become effective and the separate corporate
existence of CEG shall cease upon the filing of a certificate of ownership and
merger (the "Certificate of Ownership and Merger") with the Office of the
Secretary of State of the State of Delaware (the "Secretary of State") with
respect to the Merger in accordance with Section 253 of the DGCL. The date and
time of such filing shall be the "Effective Time of the Merger" as such term is
used in this Plan of Merger.
THIRD: (a) Except as provided in Article FIFTH hereof, the certificate
of incorporation of Columbia, as in effect immediately prior to the Effective
Time of the Merger (the "Columbia Charter") shall, upon the Effective Time of
the Merger, continue in full force and effect as the certificate of
incorporation of the Surviving Corporation, until amended as provided by law.
(b) Except as provided in Article FIFTH hereof, the By-Laws of Columbia
as in effect immediately prior to the Effective Time of the Merger shall, upon
the Effective Time of the Merger, continue in full force and effect as the
By-Laws of the Surviving Corporation until amended or repealed as therein
provided.
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Exhibit 1-A
Page 2 of 3
FOURTH: (a) The directors of Columbia immediately prior to the
Effective Time of the Merger shall, upon the Effective Time of the Merger,
continue to be the directors of the Surviving Corporation and shall serve until
their respective successors have been duly elected and qualified.
(b) The officers of Columbia immediately prior to the Effective Time of
the Merger shall, upon the Effective Time of the Merger, continue to be the
officers of the Surviving Corporation and shall serve until their respective
successors shall have been duly appointed.
FIFTH: (a) Upon the Effective Time of the Merger, in accordance with
Section 253(b) of the DGCL, the Columbia Charter shall be, and hereby is,
amended to change the name of Columbia from "The Columbia Gas System, Inc." to
"Columbia Energy Group" (the "Name Change"), and any reference to "The Columbia
Gas System, Inc." therein shall thereupon be deemed to refer to "Columbia Energy
Group." Pursuant to Section 104 of the DGCL, the filed Certificate of Ownership
and Merger shall have the effect of striking the text of Article I of the
Columbia Charter in its entirety and inserting in lieu thereof the following:
ARTICLE I
Name
"The name of this Corporation is Columbia Energy Group."
(b) Upon the Effective Time of the Merger, the By-Laws of Columbia
shall be, and hereby are, amended to delete the name "The Columbia Gas System,
Inc." wherever it may therein appear, and substitute therefor in all such places
the name "Columbia Energy Group."
SIXTH: Columbia shall file the Certificate of Ownership and Merger with
the Secretary of State pursuant to Sections 103 and 253 of the DGCL at such time
as Columbia in its sole discretion shall determine.
SEVENTH: Upon the Effective Time of the Merger, without the exchange of
stock certificates or the taking of any other action on the part of Columbia or
the respective holders of such stock certificates, each certificate that
immediately prior to the Effective Time of the Merger represented a share or
shares of stock of Columbia shall, upon the Effective Time of the Merger,
continue to represent the
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Exhibit 1-A
Page 3 of 3
same share or shares of stock of Columbia as the Surviving Corporation,
notwithstanding the Name Change.
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Exhibit 2-A
Page 1 of 3
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
COLUMBIA ATLANTIC TRADING CORPORATION
COLUMBIA ATLANTIC TRADING CORPORATION, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, by unanimous
written consent dated June 2, 1997, adopted resolutions proposing and declaring
advisable an amendment to part FOURTH of the Certificate of Incorporation of
said Corporation as follows:
RESOLVED, that the Board of Directors finds advisable and
hereby proposes to the stockholders of the Corporation that part FOURTH
of the Certificate of Incorporation of the Corporation be amended in
its entirety to read as follows:
FOURTH. The Corporation is authorized to issue only one class
of stock, to wit: Common Stock. The total number of shares of
stock which the Corporation shall have authority to issue is
Three Thousand (3,000), all of which are to have a par value
of One Dollar ($1.00) per share.
RESOLVED, FURTHER, that effective at the time of the filing of
the Certificate of Amendment setting forth this amendment to the
Certificate of Incorporation (the "Effective Time"), each share of the
common stock of the Corporation, par value $1.00 per share, issued and
outstanding or held in treasury immediately prior to the Effective Time
shall, without the exchange of stock certificates or the taking of any
other action on the part of the Corporation or the respective holders
thereof, be reclassified into one two hundred sixty six and two thirds
(1/266 2/3) of a share of common stock of the Corporation, par value
$1.00 per share, and each stock certificate that, immediately prior to
the Effective Time, represented shares of such common stock shall, from
and after the Effective Time, and without the necessity of presenting
the same for exchange, represent one two hundred sixty six and two
thirds (1/266 2/3) of the number of shares
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Exhibit 2-A
Page 2 of 3
designated on such stock certificate, provided, however, that after the
Effective Time, upon the surrender by any stockholder of certificates
bearing the number of shares of the Corporation's common stock
represented by such certificate prior to the Effective Time, the
officers of the Corporation be, and they hereby are, authorized and
directed to issue in exchange therefor one or more new certificates
bearing the number of reclassified shares of the Corporation's common
stock;
RESOLVED, FURTHER, that the foregoing amendment is advisable
and its adoption is in the best interests of the Corporation and its
stockholders and, to effectuate the foregoing, it is hereby directed
that the foregoing amendment be considered at the next annual meeting
of the stockholders, unless earlier approved by written consent in
accordance with Section 228 of the Delaware General Corporation Law;
RESOLVED, FURTHER, that after approval of such amendment by
the stockholders of the Corporation and receipt of all necessary
regulatory approvals, the officers of the Corporation be, and they
hereby are, authorized and directed to execute, acknowledge and file
with the Secretary of State of the State of Delaware a Certificate of
Amendment to evidence the foregoing amendment to the Corporation's
Certificate of Incorporation; and
RESOLVED, FURTHER, that the officers of the Corporation be,
and they hereby are, authorized and directed from time to time to
execute any and all documents and to take any and all other actions
necessary or appropriate to carry forward the foregoing resolutions.
SECOND: That in lieu of a meeting and vote of the stockholders, The
Columbia Gas System, Inc., being the holder of the outstanding stock of the
Corporation having not less than the minimum number of votes that would be
necessary to authorize or take action at a meeting at which all shares entitled
to vote thereon were present and voted, approved said amendment by written
Consent dated as of August 1, 1997, in accordance with the provisions of Section
228(a) of the General Corporation Law of the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
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Exhibit 2-A
Page 3 of 3
IN WITNESS WHEREOF, Columbia Atlantic Trading Corporation has caused
this Certificate to be signed by Mr. L. Michael Bridges, its President, and
attested by Mr. Tejinder S. Bindra, its Secretary, this 11th day of August,
1997.
By: /s/ L. Michael Bridges
-------------------------------------
President
ATTEST: /s/ Tejinder S. Bindra
------------------------------
Secretary
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Exhibit 3-A
Page 1 of 3
CERTIFICATE OF INCORPORATION
OF
COLUMBIA POWER MARKETING CORPORATION
* * *
FIRST. The name of the Corporation is COLUMBIA POWER MARKETING
CORPORATION.
SECOND. The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of the Corporation's registered agent at such address is
The Corporation Trust Company.
THIRD. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH. The Corporation is authorized to issue only one class of stock,
to wit: Common Stock. The total number of shares of Common Stock which the
Corporation shall have authority to issue is Three Thousand (3,000) all of which
are to have a par value of Twenty-Five Dollars ($25.00) per share.
FIFTH. The name and mailing address of the incorporator is Arthur W.
Iler, 12355 Sunrise Valley Drive, Suite 300, Reston, Virginia 20191-3420. The
powers of the incorporator are to terminate upon the election of directors of
the Corporation.
SIXTH. The Corporation is to have perpetual existence.
SEVENTH. For the management of the business and for the conduct of the
affairs of the Corporation, it is further provided:
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Exhibit 3-A
Page 2 of 3
1. The number of directors of the Corporation shall be as from
time to time fixed by, or in the manner provided in, the By-Laws. The directors
need not be stockholders of the Corporation.
2. In furtherance, and not in limitation, of the powers conferred by
statute, the Board of Directors is expressly authorized:
1. to make, alter or repeal By-Laws of the Corporation,
subject to the power of the stockholders of the Corporation to alter or repeal
any By-Laws whether adopted by the stockholders or otherwise.
2. to exercise the powers and authorities as are provided in
the By-Laws then in effect, subject to applicable limitations as provided in
such By-Laws.
EIGHTH. Meetings of stockholders may be held within or without the
State of Delaware, as the By-Laws 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 By-Laws of the Corporation. The election of
directors need not be by written ballot except to the extent provided in the
By-Laws of the Corporation.
NINTH. The Corporation reserves the right to restate this Certificate
of Incorporation and to amend, alter, change, or repeal any provision contained
in this Certificate of Incorporation in the manner now or hereafter prescribed
by law, and all rights and powers conferred herein on stockholders, directors,
and officers are subject to this reserved power.
TENTH. 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
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Exhibit 3-A
Page 3 of 3
such exemption from liability or limitation thereof is not permitted under the
General Corporation Law of the State of Delaware as the same exists or may
hereafter be amended. Any amendment, modification or repeal of the foregoing
sentence by the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation in respect of any act or
omission occurring prior to the time of such amendment, modification, or repeal.
The undersigned incorporator hereby acknowledges that the foregoing
Certificate of Incorporation is his act and deed this 19th day of June, 1997.
/s/ Arthur W. Iler
--------------------------------
Arthur W. Iler
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Exhibit 4-A
Page 1 of 2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
COLUMBIA POWER MARKETING CORPORATION
COLUMBIA POWER MARKETING CORPORATION, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, by unanimous
written consent dated January 16, 1998, adopted resolutions proposing and
declaring advisable an amendment to part FIRST of the Certificate of
Incorporation of said Corporation as follows:
RESOLVED, that the Board of Directors of this Corporation
hereby declares it advisable that the Certificate of Incorporation of
this Corporation be amended to change the name of the Corporation to
Columbia Energy Power Marketing Corporation, the amendment to be
effective by deleting part FIRST of said Certificate of Incorporation
and inserting in lieu thereof the following:
FIRST. The name of the Corporation is Columbia Energy Power
Marketing Corporation.
RESOLVED, that the foregoing amendment is advisable and its
adoption is in the best interests of the Corporation and its
stockholders and, to effectuate the foregoing, it is hereby directed
that the foregoing amendment be considered at the next annual meeting
of the stockholders unless earlier approved by written consent in
accordance with Section 228 of the Delaware General Corporation Law;
and
RESOLVED, that at any time prior to the filing of the
foregoing amendment to the Corporation's Certificate of Incorporation
with the Secretary of State of the State of Delaware, notwithstanding
authorization of such amendment by the stockholders of the Corporation,
the Board of Directors of the Corporation may abandon such amendment
without further action by the stockholders of the Corporation; and
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Exhibit 4-A
Page 2 of 2
RESOLVED, that after approval of such amendment by the
stockholders of the Corporation, the officers of the Corporation be,
and they hereby are, authorized and directed to execute, acknowledge
and file with the Secretary of State of the State of Delaware a
Certificate of Amendment to evidence the foregoing amendment to the
Corporation's Certificate of Incorporation; and
RESOLVED, that the officers of the Corporation be, and they
hereby are, authorized and directed from time to time to execute any
and all documents and to take any and all other actions necessary or
appropriate to carry forward the foregoing resolutions.
SECOND: That in lieu of a meeting and vote of the stockholders,
Columbia Energy Services Corporation, being the holder of the outstanding stock
of the Corporation having not less than the minimum number of votes that would
be necessary to authorize or take action at a meeting at which all shares
entitled to vote thereon were present and voted, approved said amendment by
written Consent dated as of January 16, 1998 in accordance with the provisions
of Section 228(a) of the General Corporation Law of the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 (by the written consent of the
sole stockholder of the Corporation) of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, Columbia Power Marketing Corporation has caused
this Certificate to be signed by Mr. Philip M. Glaessner, its President, and
attested by Mr. Tejinder S. Bindra, its Assistant Secretary, this 16th day of
January, 1998.
By: Philip M. Glaessner
President
ATTEST: Tejinder S. Bindra
Assistant Secretary
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Exhibit 1-B
Page 1 of 34
COLUMBIA POWER MARKETING CORPORATION
*****
BY-LAWS
*****
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. 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 the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors shall be held in the County of New Castle, State of Delaware, at such
place as may be fixed from time to time by the Board of Directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of
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Exhibit 1-B
Page 2 of 34
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held on the first
Monday of June if not a legal holiday, and if a legal holiday, then on the next
secular day following, at 10:00 A.M., or at such other date and time as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting, at which they shall elect by a plurality vote a Board of
Directors, and transact such other business as may properly be brought before
the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during
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Exhibit 1-B
Page 3 of 34
ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Articles of
Incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the Board of
Directors, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the place, date,
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
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Exhibit 1-B
Page 4 of 34
Section 7. Business transacted at any special meeting of the
stockholders shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Articles of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting, at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty 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 meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is
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Exhibit 1-B
Page 5 of 34
one upon which by express provision of statute or of the Articles of
Incorporation, a different vote is required in which case such express provision
shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the Articles of Incorporation,
each stockholder shall at every meeting of the stockholders be entitled to one
vote in person or by proxy for each share of the capital stock having voting
power held by such stockholder, but no proxy shall be voted on after eleven
months from its date, unless the proxy provides for a longer period.
ARTICLE III
DIRECTORS
Section 1. The number of directors shall be determined by resolution of
the Board of Directors or by the stockholders at the annual meeting. The
directors shall be elected at the annual meeting of the stockholders, except as
provided in Section 2 of this Article, and each director elected shall hold
office until his successor is elected and qualified. Directors need not be
stockholders.
Section 2. 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 a sole remaining
director, and the directors so chosen shall hold office until the next annual
election or until their
<PAGE> 6
Exhibit 1-B
Page 6 of 34
successors are duly elected and shall quality, unless sooner displaced. If there
are no directors in office, then an election of directors may be held in the
manner provided by statute.
Section 3. The business of the corporation shall be managed by its
Board of Directors which may exercise all such powers of the corporation and do
all such lawful acts and things as are not by statute or by the Articles of
Incorporation or by these By-laws directed or required to be exercised or done
by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The Board of Directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected Board of Directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
Board of Directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
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Exhibit 1-B
Page 7 of 34
special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the Directors.
Section 6. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be
determined by the Board.
Section 7. Special meetings of the Board may be called by the
president, the secretary, or any assistant secretary on six hours' notice to
each director, either personally or by mail or by telegram; special meetings
shall be called by the president, the secretary, or an assistant secretary in
like manner and on like notice on the written request of two directors.
Section 8. At all meetings of the Board, a majority of the directors
shall constitute a quorum for the transaction of business, and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the Articles of Incorporation. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
<PAGE> 8
Exhibit 1-B
Page 8 of 34
Section 9. Unless otherwise restricted by the Articles of Incorporation
or these By-laws, any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be taken without a
meeting, if all members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 10. Unless otherwise restricted by the Articles of
Incorporation or these By-laws, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
the absence or disqualification of a member of a committee, the member or
members thereof present
<PAGE> 9
Exhibit 1-B
Page 9 of 34
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. Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the Articles of Incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease, or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the By-laws of the corporation, declare
a dividend, to authorize the issuance of stock, or fill vacancies on the Board
of Directors or any committee. Such committee or committees shall have such name
or names as may be determined from time to time by resolution adopted by the
Board of Directors.
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors.
<PAGE> 10
Exhibit 1-B
Page 10 of 34
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the Articles of
Incorporation or these By-laws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors and may be paid
a fixed sum for attendance at each meeting of the Board of Directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of applicable statute or of
the Articles of Incorporation or of these By-laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram, data facsimile, or other
similar method of transmitting a written communication.
<PAGE> 11
Exhibit 1-B
Page 11 of 34
Section 2. Whenever any notice is required to be given under the
provisions of applicable statute or of the Articles of Incorporation or of these
By-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the Board
of Directors and shall be a president and a secretary. The Board of Directors
may also choose vice-presidents, a treasurer, a controller, and one or more
assistant secretaries and assistant treasurers, and assistant controllers and
such other officers as it deems necessary from time to time. Any number of
offices may be held by the same person, unless the Articles of Incorporation or
these By-laws otherwise provide.
Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose a president and a secretary.
<PAGE> 12
Exhibit 1-B
Page 12 of 34
Section 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the Board of Directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any office of the
corporation shall be filled by the Board of Directors.
THE PRESIDENT AND VICE PRESIDENTS
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and the Board of
Directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect.
<PAGE> 13
Exhibit 1-B
Page 13 of 34
Section 7. The president shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed or except where
the signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the corporation.
Section 8. The vice president, or if there be more than one, the vice
presidents in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election), shall perform such
duties and exercise such powers as the Board of Directors may from time to time
prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the Board of Directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or
president, under whose supervision he shall be. He shall have
<PAGE> 14
Exhibit 1-B
Page 14 of 34
custody of the corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The Board of Directors may give general authority to
any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 10. An assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election), shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer or, as directed by the Board of Directors,
one or more assistant treasurers shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be
<PAGE> 15
Exhibit 1-B
Page 15 of 34
designated by the Board of Directors.
Section 12. The treasurer or, as directed by the Board of Directors,
one or more assistant treasurers shall disburse the funds of the corporation as
may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the president and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his/their transactions as treasurer/assistant treasurer.
Section 13. If required by the Board of Directors, the treasurer or an
assistant treasurer shall give the corporation a bond (which shall be renewed
every six years) in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of their offices and for the restoration to the corporation, in case of
their death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in their possession
or under their control belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the Board of Directors
(or if there be no such determination, then in the order of their election),
shall, in the absence of the
<PAGE> 16
Exhibit 1-B
Page 16 of 34
treasurer or in the event of his inability or refusal to act, perform the duties
and exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
THE CONTROLLER AND ASSISTANT CONTROLLER
Section 15. The controller, or as directed by the Board of Directors,
one or more assistant controllers, shall maintain adequate records of all
assets, liabilities, and transactions of the corporation, ensure that the
financial results of operations are properly recorded and that adequate audits
thereof are currently and regularly made; and, in conjunction with other
officers, initiate and enforce measures and procedures whereby the business of
the corporation shall be conducted with the maximum safety, efficiency, and
economy. The controller or an assistant controller shall report to the president
and/or the Board of Directors at its regular meetings on the financial results
of the Corporation's operations. The controller shall have such other duties as
the Board of Directors may designate from time to time.
<PAGE> 17
Exhibit 1-B
Page 17 of 34
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the corporation shall be entitled
to have a certificate, signed by, or in the name of the corporation, by the
president or the vice president, or the secretary or an assistant secretary of
the corporation, certifying the number of shares owned by him in the
corporation.
Section 2. Any of or all the signatures on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in
<PAGE> 18
Exhibit 1-B
Page 18 of 34
its discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen 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 in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFERS OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, 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
<PAGE> 19
Exhibit 1-B
Page 19 of 34
exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be more than sixty
nor less than ten days before the date of such meeting, nor more than sixty days
prior to any other action. 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.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and 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 the laws of
Delaware.
<PAGE> 20
Exhibit 1-B
Page 20 of 34
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the Articles of Incorporation, if any, may be declared by
the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Articles of Incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE> 21
Exhibit 1-B
Page 21 of 34
CHECKS
Section 3. All checks, drafts, notes, bills of exchange, and orders for
the payment of money (including orders for repetitive or non-repetitive
electronic funds transfers) shall, unless otherwise directed by the Board of
Directors, or unless required by law, be signed by any two of the following
officers: the President, any Vice President, the Secretary, or any Assistant
Secretary; provided that in every case at least one such officer shall be the
President, a Vice President or the Secretary. The Board of Directors may,
however, notwithstanding the foregoing provision, by resolution adopted at any
meeting, authorize any of said officers or any employee of the Corporation so
designated by the Board of Directors of the Corporation to sign, checks, drafts,
and such orders for the payment of money singly and without necessity of
countersignature, and may designate officers of the Corporation other than those
named above or any employee of the Corporation so designated by the Board of
Directors of the Corporation, or different combinations of such officers or any
employee of the Corporation so designated by the Board of Directors of the
Corporation, who may, in the name of the Corporation, execute checks, drafts,
and such orders for the payment of money on its behalf. Further, the President
is authorized to designate to the Corporation's banks, in writing, individuals
employed in the Columbia Gas System Service Corporation Cash Management
Department, who need not be officers or employees of the Corporation to give in
the name of the Corporation telephonic, telegraphic, or electronic transfer
instructions for the payment of money, which may,
<PAGE> 22
Exhibit 1-B
Page 22 of 34
with respect to routine items, include instructions as to the amount to be
transferred, to any bank, pursuant to previously issued written orders, signed
by officers of the Corporation or by any employee of the Corporation so
designated by the Board of Directors of the Corporation in any manner provided
above, which designate the recipients of such amounts and which identify what
shall be treated as routine items.
FISCAL YEAR
Section 4. The fiscal year of the corporation begins on the first day
of January and ends on the thirty-first day of December in each year.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, and the words "Corporate Seal 1997 Delaware". The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
<PAGE> 23
Exhibit 1-B
Page 23 of 34
ARTICLE VIII
INDEMNIFICATION
(a) Right to Indemnification. The Corporation shall to the fullest
extent permitted by applicable law as then in effect indemnify any person (the
"Indemnitee") who was or is involved in any manner (including, without
limitation, as a party or a witness) or is threatened to be made so involved in
any threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative, or investigative (including
without limitation, any action, suit, or proceeding by or in the right of the
Corporation to procure a judgment in its favor) (a "Proceeding") by reason of
the fact that such person is or was a director, officer, employee, or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise (including, without limitation, any employee
benefit plan) against all expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement actually and reasonably incurred by such
person in connection with such Proceeding. Such indemnification shall be a
contract right and shall include the right to receive payment of any expenses
incurred by the Indemnitee in connection with such Proceeding in advance of its
final disposition, consistent with the provisions of applicable law as then in
effect.
<PAGE> 24
Exhibit 1-B
Page 24 of 34
(b) Insurance, Contracts, and Funding. The Corporation may purchase and
maintain insurance to protect itself and any indemnitee against any expenses,
judgments, fines, and amounts paid in settlement as specified in Section (a) of
this Article VIII or incurred by an Indemnitee in connection with any proceeding
referred to in Section (a) of this Article VIII, to the fullest extent permitted
by applicable law as then in effect. The Corporation may enter into contracts
with any director, officer, employee, or agent of the Corporation or use other
means in furtherance of the provisions of this Article VIII to ensure the
payment of such amounts as may be necessary to effect indemnification as
provided in this Article VIII.
(c) Indemnification; Not Exclusive Right. The right of indemnification
provided in this Article VIII shall not be exclusive of any other rights to
which those seeking indemnification may otherwise be entitled, and the
provisions of this Article VIII shall inure to the benefit of the heirs and
legal representatives of any person entitled to indemnity under this Article
VIII and shall be applicable to Proceedings commenced or continuing after the
adoption of this Article VIII, whether arising from acts or omissions occurring
before or after such adoption.
(d) Advancement of Expenses; Procedures; Presumptions and Effect of
Certain Proceedings; Remedies. In furtherance but not in limitation of the
foregoing
<PAGE> 25
Exhibit 1-B
Page 25 of 34
provisions, the following procedures, presumptions, and remedies shall apply
with respect to advancement of expenses and the right to indemnification under
this Article VIII:
(1) Advance of Expenses. All reasonable expenses incurred by or on
behalf of the Indemnitee in connection with any Proceeding shall be advanced to
the Indemnitee by the Corporation within 20 days after the receipt by the
Corporation of a statement or statements from the Indemnitee requesting such
advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably
evidence the expenses incurred by the Indemnitee and, if required by law at the
time of such advance, shall include or be accompanied by an undertaking by or on
behalf of the Indemnitee to repay the amounts advanced if it should ultimately
be determined that the Indemnitee is not entitled to be indemnified against such
expenses pursuant to this Article VIII.
(2) Procedure for Determination of Entitlement to Indemnification.
(i) To obtain indemnification under this Article VIII, an Indemnitee
shall submit to the Secretary of the Corporation a written request, including
such documentation and information as is reasonably available to the Indemnitee
and
<PAGE> 26
Exhibit 1-B
Page 26 of 34
reasonably necessary to determine whether and to what extent the Indemnitee is
entitled to indemnification (the "Supporting Documentation"). The determination
of the Indemnitee's entitlement to indemnification shall be made not later than
60 days after receipt by the Corporation of the written request for
indemnification together with Supporting Documentation. The Secretary of the
Corporation shall advise the Board of Directors in writing, promptly upon
receipt of such a request for indemnification, that the Indemnitee has requested
indemnification.
(ii) The Indemnitee's entitlement to indemnification under this Article
VIII shall be determined in one of the following ways: (A) by a majority vote of
the Disinterested Directors (as hereinafter defined), even if they constitute
less than a quorum of the Board of Directors; (B) by a written opinion of
Independent Counsel (as hereinafter defined) if (x) a Change of Control (as
hereinafter defined) shall have occurred and the Indemnitee so requests or (y) a
quorum of the Board of Directors consisting of Disinterested Directors is not
obtainable or, even if obtainable, a majority of such Disinterested Directors so
directs; (C) by the stockholders of the Corporation (but only if a majority of
the Disinterested Directors present the issue of entitlement to indemnification
to the stockholders for their determination); or (D) as provided in Section
(d)(3).
<PAGE> 27
Exhibit 1-B
Page 27 of 34
(iii) In the event the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section (d)(2)(ii), a majority
of the Board of Directors shall select the Independent Counsel, but only an
Independent Counsel to which the Indemnitee does not reasonably object;
provided, however, that if a Change of Control shall have occurred, the
Indemnitee shall select such Independent Counsel, but only an Independent
Counsel to which the Board of Directors does not reasonably object.
(iv) The only basis upon which a finding of no entitlement to
indemnification may be made is that indemnification is prohibited by law.
(3) Presumptions and Effect of Certain Proceedings. Except as otherwise
expressly provided in this Article VIII, if a Change of Control shall have
occurred, the Indemnitee shall be presumed to be entitled to indemnification
under this Article VIII upon submission of a request for indemnification
together with the Supporting Documentation in accordance with Section (d)(2)(i),
and thereafter the Corporation shall have the burden of proof to overcome that
presumption in reaching a contrary determination. In any event, if the person or
persons empowered under Section (d)(2) to determine entitlement to
indemnification shall not have been appointed or shall not have made a
determination within 60 days after receipt by the Corporation of the
<PAGE> 28
Exhibit 1-B
Page 28 of 34
request therefor together with the Supporting Documentation, the Indemnitee
shall be deemed to be entitled to indemnification, and the Indemnitee shall be
entitled to such indemnification unless (A) the Indemnitee misrepresented or
failed to disclose a material fact in making the request for indemnification or
in the Supporting Documentation or (B) such indemnification is prohibited by
law. The termination of any Proceeding described in Section (a), or of any
claim, issue, or matter therein, by judgment, order, settlement, or conviction,
or upon a plea of nolo contendere or its equivalent, shall not of itself
adversely affect the right of the Indemnitee to indemnification or create a
presumption that the Indemnitee did not act in good faith and in a manner which
the Indemnitee reasonably believed to be in or not opposed to the best interests
of the Corporation or, with respect to any criminal Proceeding, that the
Indemnitee had reasonable cause to believe that the Indemnitee's conduct was
unlawful.
(4) Remedies of Indemnitee.
(i) In the event that a determination is made pursuant to Section
(d)(2) or (3) that the Indemnitee is not entitled to indemnification under this
Article VIII, (A) the Indemnitee shall be entitled to seek an adjudication of
his entitlement to such indemnification either, at the Indemnitee's sole option,
in (x) an appropriate court of the State of Delaware or any other court of
competent jurisdiction, or (y) an arbitration to be
<PAGE> 29
Exhibit 1-B
Page 29 of 34
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association; (B) any such judicial proceeding or arbitration shall
be de nova and the Indemnitee shall not be prejudiced by reason of such adverse
determination; and (C) in any such judicial proceeding or arbitration, the
Corporation shall have the burden of proving that the Indemnitee is not entitled
to indemnification under this Article VIII.
(ii) If pursuant to Section (d)(2) or (3) a determination shall have
been made or deemed to have been made that the Indemnitee is entitled to
indemnification, the Corporation shall be obligated to pay the amounts
constituting such indemnification within five days after such determination has
been made or is deemed to have been made and shall be conclusively bound by such
determination unless (A) the Indemnitee misrepresented or failed to disclose a
material fact in making the request for indemnification or in the Supporting
Documentation, or (B) such indemnification is prohibited by law. In the event
that (X) advancement of expenses is not timely made pursuant to Section (d)(1),
or (Y) payment of indemnification is not made within five days after a
determination of entitlement to indemnification has been made or deemed to have
been made pursuant to Section (d)(2) or (3), the Indemnitee shall be entitled to
seek judicial enforcement of the Corporation's obligation to pay to the
Indemnitee such advancement of expenses or indemnification. Notwithstanding the
foregoing, the Corporation may bring an action in an appropriate court in the
State of Delaware or any
<PAGE> 30
Exhibit 1-B
Page 30 of 34
other court of competent jurisdiction, contesting the right of the Indemnitee to
receive indemnification hereunder due to the occurrence of an event described in
subclause (A) or (B) of this clause (ii) (a "Disqualifying Event"); provided,
however, that in any such action the Corporation shall have the burden of
proving the occurrence of such Disqualifying Event.
(iii) The Corporation shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section (d)(4) that the
procedures and presumptions of this Article VIII are not valid, binding, and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Corporation is bound by all the provisions of this Article VIII.
(iv) In the event that pursuant to this Section (d)(4) the Indemnitee
seeks a judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of this Article VIII, the
Indemnitee shall be entitled to recover from the Corporation, and shall be
indemnified by the Corporation against, any expenses actually and reasonably
incurred by the Indemnitee if the Indemnitee prevails in such judicial
adjudication or arbitration. If it shall be determined in such judicial
adjudication or arbitration that the Indemnitee is entitled to receive part but
not all of the
<PAGE> 31
Exhibit 1-B
Page 31 of 34
indemnification or advancement of expenses sought, the expenses incurred by the
Indemnitee in connection with such judicial adjudication or arbitration shall be
prorated accordingly.
(5) Definitions. For purposes of this Section (d):
(i) "Change in Control" means (A) so long as the Public Utility Holding
Company Act of 1935 is in effect, any "company" becoming a "holding company" in
respect to the Corporation or any determination by the Securities and Exchange
Commission that any "person" should be subject to the obligations, duties, and
liabilities if imposed by said Act by virtue or his, hers or its influence over
the management or policies of the Corporation, or (B) whether or not said Act is
in effect, a change in control of the Corporation of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934 (the "Act"), whether
or not the Corporation is then subject to such reporting requirement; provided
that, without limitation, such a change in control shall be deemed to have
occurred if (i) any "person" (as such term is used in Section 13(d) and 14(d) of
the Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Act), directly or indirectly, of securities of the Corporation representing
10 percent or more of the combined voting power of the Corporation's then
outstanding securities without the prior approval of at least two-thirds of the
members of the Board
<PAGE> 32
Exhibit 1-B
Page 32 of 34
of Directors in office immediately prior to such acquisition; (ii) the
Corporation is a party to a merger, consolidation, sale of assets or other
reorganization, or a proxy contest, as a consequence of which members of the
Board of Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors thereafter; or (iii)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors (including for this purpose any
new director whose election or nomination for election by the Corporation's
stockholders was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such period) cease for
any reason to constitute at least a majority of the Board of Directors.
(ii) "Disinterested Director" means a director of the Corporation who
is not or was not a party to the Proceeding in respect of which indemnification
is sought by the Indemnitee.
(iii) "Independent Counsel" means a law firm or a member of a law firm
that neither presently is, nor in the past five years has been, retained to
represent: (A) the Corporation or the Indemnitee in any matter material to
either such party, or (B) any other party to the Proceeding giving rise to a
claim for indemnification under this Article VIII. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing
<PAGE> 33
Exhibit 1-B
Page 33 of 34
under the law of the State of Delaware, would have a conflict of interest in
representing either the corporation or the Indemnitee in an action to determine
the Indemnitee's rights under this Article VIII.
(e) Severability. If any provision or provisions of this Article VIII
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(i) the validity, legality, and enforceability of the remaining provisions of
this Article VIII (including, without limitation, all portions of any paragraph
of this Article VIII containing any such provision held to be invalid, illegal,
or unenforceable, that are not themselves invalid, illegal, or unenforceable)
shall not in any way be affected or impaired thereby; and (ii) to the fullest
extent possible, the provisions of this Article VIII (including, without
limitation, all portions of any paragraph of this Article VIII containing any
such provision held to be invalid, illegal, or unenforceable that are not
themselves invalid, illegal, or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal, or
unenforceable.
(f) Successor Laws, Regulations, and Agencies. Reference herein to
laws, regulations, or agencies shall be deemed to include all amendments
thereof, substitutions therefor, and successors thereto.
<PAGE> 34
Exhibit 1-B
Page 34 of 34
ARTICLE IX
AMENDMENTS
Section 1. These By-laws may be altered, amended, or repealed or new
By-laws may be adopted by the stockholders or by the Board of Directors, when
such power is conferred upon the Board of Directors by the Articles of
Incorporation, at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration, amendment, repeal, or adoption of new
By-laws be contained in the notice of such special meeting.
<PAGE> 1
Exhibit 2-B
Page 1 of 1
AGREEMENT AND CONSENT
in Lieu of Special Meeting of the Stockholder of
COLUMBIA GAS OF KENTUCKY, INC.
The undersigned, THE COLUMBIA GAS SYSTEM, INC., a Delaware corporation,
being the sole stockholder and owner of all outstanding shares of COLUMBIA GAS
OF KENTUCKY, INC., a Kentucky corporation, pursuant to the laws of the State of
Kentucky, hereby agrees and consents to the adoption of the following resolution
in lieu of action at a Special Meeting of the Stockholder:
Waiver of Special Meeting
A Special Meeting of the Stockholder to amend the Bylaws of this
Corporation, and notice thereof, as provided in the Bylaws of this Corporation,
are hereby waived.
Amendment of Bylaws
RESOLVED, that Section 2 of ARTICLE V of the Bylaws
of this Corporation be amended to provide that no person who
is a director of the Corporation shall continue as a director
beyond the Annual Meeting of stockholders next following his
72nd birthday so that said Section 2, ARTICLE V, as amended,
shall read as follows:
Section 2. Number, Term of Office and Qualifications.
The Board of Directors shall consist of not more than ten and
not less than five directors, who need not be stockholders of
the Corporation. Each director shall continue in office until
his term shall have expired and until his successor shall have
been elected and shall have qualified, or until his death or
removal or until he shall have resigned. No person who is a
director of the Corporation shall continue as a director
beyond the Annual Meeting of stockholders next following his
72nd birthday.
In case the number of directors shall be increased, additional
directors shall be elected as provided in Section 7 of Article
V.
IN WITNESS WHEREOF, THE COLUMBIA GAS SYSTEM, INC. has caused this
Agreement and Consent to be duly executed in its corporate name and under its
corporate seal, as of the 1st day of November, 1997.
THE COLUMBIA GAS SYSTEM, INC.
By:
Chairman
(SEAL)
Attest:
- ------------------------------
Secretary
<PAGE> 1
Exhibit 3-B
Page 1 of 2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
COLUMBIA GAS OF MARYLAND, INC.
COLUMBIA GAS OF MARYLAND, INC., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (The
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, by unanimous
written consent dated June 30, 1997, adopted resolutions proposing and declaring
advisable an amendment to part FOURTH of the Certificate of Incorporation of
said Corporation as follows:
RESOLVED, that the Board of Directors finds advisable and
hereby proposes to the stockholders of the Corporation that part FOURTH of the
Certificate of Incorporation of the Corporation amended in its entirety to read
as follows:
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is Three Thousand (3,000) and the par
value of each of such shares is Twenty-Five Dollars ($25.00) amounting in the
aggregate to Seventy Five Thousand Dollars ($75,000)
RESOLVED, FURTHER, that effective at the time of the filing of
the Certificate of Amendment setting forth this amendment to the Certificate of
Incorporation (the "Effective Time"), each share of the common stock of the
Corporation, par value $25.00 per share, issued and outstanding or held in
treasury immediately prior to the Effective Time shall, without the exchange of
stock certificates or the taking of any other action on the part of the
Corporation or the respective holders thereof, be reclassified into one one
hundred fortieth (1/140th) of a share of common stock of the Corporation, par
value of $25.00 per share, and each stock certificate that, immediately prior to
the Effective Time, represented shares of such common stock shall, from and
after the Effective Time, and without the necessity of presenting the same for
exchange, represent one one hundred fortieth (1/140) of the number of share
designated on such stock certificate, provided, however, that after the
Effective Time, upon the surrender by any stockholder of certificates bearing
the number of shares of the Corporation's common stock represented by such
certificate prior to the Effective Time, the officers of the Corporation be, and
they hereby are, authorized and directed to issue in exchange thereafter one or
more new certificates bearing the number of reclassified shares of the
Corporation's common stock;
<PAGE> 2
Exhibit 3-B
Page 2 of 2
RESOLVED, FURTHER, that the foregoing amendment is advisable
and its adoption is in the best interests of the Corporation and its
stockholders and, to effectuate the foregoing, it is hereby directed that the
foregoing amendment be considered at the next annual meeting of the
stockholders, unless earlier approved by written consent in accordance with
Section 228 of the Delaware General Corporation Law;
RESOLVED, FURTHER, that after approval of such amendment by
the stockholders of the Corporation and receipt of all necessary regulatory
approvals, the officers of the Corporation be, and they hereby are, authorized
and directed to execute, acknowledge and file with the Secretary of State of the
State of Delaware a Certificate of Amendment to evidence the foregoing amendment
to the Corporation's Certificate of Incorporation; and
RESOLVED, FURTHER, that the officers of the Corporation be,
and they hereby are, authorized and directed from time to time to execute any
and all documents and to take any and all other actions necessary or appropriate
to carry forward the foregoing resolutions.
SECOND: That in lieu of a meeting and vote of the stockholders, The
Columbia Energy Group being the holder of the outstanding stock of the
Corporation having not less than the minimum number of votes that would be
necessary to authorize or take action at a meeting at which all shares entitled
to vote thereon were present and voted, approved said amendment by written
Consent dated as of August 1, 1997, in accordance with the provisions of Section
228(a) of the General Corporation Law of the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, Columbia Gas of Maryland, Inc. has caused this
Certificate to be signed by Mr. Gary J. Robinson, its President, and attested by
Mr. Andrew J. Sonderman, its Secretary, this 13th day of August, 1997.
By: /s/ Gary J. Robinson
---------------------
President
ATTEST:
By: /s/ Andrew J. Sonderman
------------------------
Secretary
<PAGE> 1
Exhibit 4-B
Page 1 of 1
AGREEMENT AND CONSENT
in Lieu of Special Meeting of the Stockholder of
COLUMBIA GAS OF MARYLAND, INC.
The undersigned, THE COLUMBIA GAS SYSTEM, INC., a Delaware corporation,
being the sole stockholder and owner of all outstanding shares of COLUMBIA GAS
OF MARYLAND, INC., a Delaware corporation, pursuant to the laws of the State of
Delaware, hereby agrees and consents to the adoption of the following resolution
in lieu of action at a Special Meeting of the Stockholder:
Waiver of Special Meeting
A Special Meeting of the Stockholder to amend the Bylaws of this
Corporation, and notice thereof, as provided in the Bylaws of this Corporation,
are hereby waived.
Amendment of Bylaws
RESOLVED, that Paragraph (a) of ARTICLE V of the Bylaws of
this Corporation be amended to provide that no person who is a director
of the Corporation shall continue as a director beyond the annual
meeting of stockholders next following his 72nd birthday so that said
Paragraph (a), ARTICLE V, as amended, shall read as follows:
(a) The management and direction of all the affairs and
interests of the Corporation shall be vested in a Board of Directors,
consisting of not to exceed eleven and not less than three members, who
need not be stockholders. The directors shall be elected annually and
each director shall continue in office until the annual meeting held
next after his election, and until his successor shall have been
elected and qualified, or until his death or until he shall resign. No
person who is a director of the Corporation shall continue as a
director beyond the annual meeting of stockholders next following his
72nd birthday.
IN WITNESS WHEREOF, THE COLUMBIA GAS SYSTEM, INC. has caused this
Agreement and Consent to be duly executed in its corporate name and under its
corporate seal, as of the 1st day of November, 1997.
THE COLUMBIA GAS SYSTEM, INC.
By:______________________________
Chairman
(SEAL)
Attest:
________________________________
Secretary
<PAGE> 1
Exhibit 5-B
Page 1 of 1
AGREEMENT AND CONSENT
in Lieu of Special Meeting of the Stockholder of
COLUMBIA GAS OF OHIO, INC.
The undersigned, THE COLUMBIA GAS SYSTEM, INC., a Delaware corporation,
being the sole stockholder and owner of all outstanding shares of COLUMBIA GAS
OF OHIO, INC., an Ohio corporation, pursuant to the laws of the State of Ohio,
hereby agrees and consents to the adoption of the following resolution in lieu
of action at a Special Meeting of the Stockholder:
Waiver of Special Meeting
A Special Meeting of the Stockholder to amend the Regulations of this
Corporation, and notice thereof, as provided in the Regulations of this
Corporation, are hereby waived.
Amendment of Regulations
RESOLVED, that Section 1 of ARTICLE V of the Regulations of
this Corporation be amended to provide that no person who is a director
of the Corporation shall continue as a director beyond the annual
meeting of Stockholders next following his 72nd birthday so that said
Section 1, ARTICLE V, as amended, shall read as follows:
Number and Qualifications of Directors.
Except as otherwise provided by statute or by the Articles of
the Corporation, all the corporate powers, business and property of the
Corporation shall be exercised, conducted and controlled by a Board of
Directors, not less than five, and not more than sixteen in number, as
may from time to time be determined by the Board of Directors or by the
shareholders. Such number if determined by the shareholders may not be
changed by the Board of Directors. Directors need not be shareholders.
The directors shall be elected annually and each director
shall continue in office until the annual meeting held next after his
election (or, in the case of a director appointed by remaining
directors pursuant to Section 3 of this Article V, any earlier special
meeting), and until his successor shall have been elected and
qualified, or until his death or until he shall resign or shall have
been removed in the manner hereinafter in Section 9 of this Article V
provided. No person who is a director of the Corporation shall continue
as a director beyond the annual meeting of Stockholders next following
his 72nd birthday.
IN WITNESS WHEREOF, THE COLUMBIA GAS SYSTEM, INC. has caused this
Agreement and Consent to be duly executed in its corporate name and under its
corporate seal, as of the 1st day of November, 1997.
THE COLUMBIA GAS SYSTEM, INC.
By:
Chairman
(SEAL)
Attest:
Secretary
<PAGE> 1
Exhibit 6-B
Page 1 of 1
AGREEMENT AND CONSENT
in Lieu of Special Meeting of the Stockholder of
COLUMBIA GAS OF PENNSYLVANIA, INC.
The undersigned, THE COLUMBIA GAS SYSTEM, INC., a Delaware corporation,
being the sole stockholder and owner of all outstanding shares of COLUMBIA GAS
OF PENNSYLVANIA, INC., a Pennsylvania corporation, pursuant to the laws of the
State of Pennsylvania, hereby agrees and consents to the adoption of the
following resolution in lieu of action at a Special Meeting of the Stockholder:
Waiver of Special Meeting
A Special Meeting of the Stockholder to amend the Bylaws of this
Corporation, and notice thereof, as provided in the Bylaws of this Corporation,
are hereby waived.
Amendment of Bylaws
RESOLVED, that Paragraph (a) of ARTICLE V of the Bylaws of
this Corporation be amended to provide that no person who is a director
of the Corporation shall continue as a director beyond the annual
meeting of stockholders next following his 72nd birthday so that said
Paragraph (a), ARTICLE V, as amended, shall read as follows:
(a) The management and direction of all of the affairs and
interests of the Corporation shall be vested in a Board of Directors,
consisting of not to exceed fifteen and not less than five members, who
need not be stockholders. The directors shall be elected annually and
each director shall continue in office until the annual meeting held
next after his election, and until his successor shall have been
elected and qualified, or until his death or until he shall resign. No
person who is a director of the Corporation shall continue as a
director beyond the annual meeting of stockholders next following his
72nd birthday.
IN WITNESS WHEREOF, THE COLUMBIA GAS SYSTEM, INC. has caused this
Agreement and Consent to be duly executed in its corporate name and under its
corporate seal, as of the 1st day of November, 1997.
THE COLUMBIA GAS SYSTEM, INC.
By:
Chairman
(SEAL)
Attest:
By:
Secretary
<PAGE> 1
Exhibit 5-A
Page 1 of 2
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
COLUMBIA GAS SYSTEM SERVICE CORPORATION
COLUMBIA GAS SYSTEM SERVICE CORPORATION, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, by unanimous
written consent dated June 30, 1997, adopted resolutions proposing and declaring
advisable an amendment to part Fourth of the Restated Certificate of
Incorporation of said Corporation as follows:
RESOLVED, that the Board of Directors finds advisable and
hereby proposes to the stockholders of the Corporation that part Fourth of the
Restated Certificate of Incorporation of the Corporation be amended in its
entirety to read as follows:
FOURTH: The Corporation is to be authorized to issue only one
class of stock, to wit: Common Stock. The total number of shares of stock which
the Corporation shall have authority to issue is Three Thousand (3,000), all of
which are to have a par value of One Hundred Dollars ($100) per share.
RESOLVED, FURTHER, that effective at the time of the filing of
the Certificate of Amendment setting forth this amendment to the Restated
Certificate of Incorporation (the "Effective Time"), each share of the common
stock of the Corporation, par value $100.00 per share, issued and outstanding or
held in treasury immediately prior to the Effective Time shall, without the
exchange of stock certificates or the taking of any other action on the part of
the Corporation or the respective holders thereof, be reclassified into one
forty three and one third (1/43 1/3) of a share of common stock of the
Corporation, par value $100.00 per share, and each stock certificate that,
immediately prior to the Effective Time, represented shares of such common stock
shall, from and after the Effective Time, and without the necessity of
presenting the same for exchange, represent one forty three and one third
(1/43 1/3) of the number of shares designated on such stock certificate,
provided, however, that after the Effective Time, upon the surrender by any
stockholder of certificates bearing the number of shares of the Corporation's
common stock represented by such certificate prior to the Effective Time, the
officers of the Corporation be, and they hereby are, authorized and directed to
issue in exchange therefor one or more new certificates bearing the number of
reclassified shares of the Corporation's common stock;
<PAGE> 2
Exhibit 5-A
Page 2 of 2
RESOLVED, FURTHER, that the foregoing amendment is advisable
and its adoption is in the best interests of the Corporation and its
stockholders and, to effectuate the foregoing, it is hereby directed that the
foregoing amendment be considered at the next annual meeting of the
stockholders, unless earlier approved by written consent in accordance with
Section 228 of the Delaware General Corporation Law;
RESOLVED, FURTHER, that after approval of such amendment by
the stockholders of the Corporation and receipt of all necessary regulatory
approvals, the officers of the Corporation be, and they hereby are, authorized
and directed to execute, acknowledge and file with the Secretary of State of the
State of Delaware a Certificate of Amendment to evidence the foregoing amendment
to the Corporation's Restated Certificate of Incorporation; and
RESOLVED, FURTHER, that the officers of the Corporation be,
and they hereby are, authorized and directed from time to time to execute any
and all documents and to take any and all other actions necessary or appropriate
to carry forward the foregoing resolutions.
SECOND: That in lieu of a meeting and vote of the stockholders,
Columbia Energy Group Service Corporation, being the holder of the outstanding
stock of the Corporation having not less than the minimum number of votes that
would be necessary to authorize or take action at a meeting at which all shares
entitled to vote thereon were present and voted, approved said amendment by
written consent dated as of August 1, 1997 in accordance with the provisions of
Section 228(a) of the General Corporation Law of the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, Columbia Gas System Service Corporation has caused
this Certificate to be signed by Mr. Oliver G. Richard, III, it President, and
attested by Ms. Carolyn McKinney Afshar, its Secretary, this 1st day of August,
1997.
BY: /s/ Oliver G. Richard, III
------------------------------
President
ATTEST: /s/ C. M. Afshar
- ------------------------
Secretary
<PAGE> 1
Exhibit 7-B
Page 1 of 1
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
COLUMBIA GAS SYSTEM SERVICE CORPORATION
COLUMBIA GAS SYSTEM SERVICE CORPORATION, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, by unanimous
written consent dated December 29, 1997 adopted resolutions proposing and
declaring advisable an amendment to part First of the Restated Certificate of
Incorporation of said Corporation as follows:
RESOLVED, that the Board of Directors of this Corporation
hereby declares it advisable that the Restated Certificate of
Incorporation of this Corporation be amended to change the name of the
Corporation to Columbia Energy Group Service Corporation, the amendment
to be effective by deleting part First of said Restated Certificate of
Incorporation and inserting in lieu thereof the following:
First: The name of the corporation (hereinafter called the
Corporation) is
COLUMBIA ENERGY GROUP SERVICE CORPORATION.
<PAGE> 1
Exhibit 6-A
Page 1 of 8
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
COLUMBIA GAS TRANSMISSION CORPORATION, a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is COLUMBIA GAS TRANSMISSION CORPORATION.
The date of filing its original Certificate of Incorporation with the Secretary
of State was March 3, 1969.
2. This is an amendment to the Restated Certificate of Incorporation which
was filed in the Office of Secretary of State of the State of Delaware on March
19, 1982. The effect of this Amendment is to add a new Paragraph 9 as follows:
"NINTH: No non-voting equity securities of the Corporation
may be issued. This provision is to comply with Section 1123 of the
United States Bankruptcy Code, 11 U.S.C. 1123(a)(5)(I). and Section
1123(a)(6) shall have no force and effect except to the extent required
by such Section so long as Section is in effect and applicable to the
Corporation."
3. The text of the Certificate of Incorporation as amended is hereby
restated without further amendments or changes to read as herein set forth in
full:
FIRST. The name of the Corporation is
COLUMBIA GAS TRANSMISSION CORPORATION
SECOND. The address of its registered office in the State of Delaware is
No. 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.
THIRD. The nature of the business or purposes to be conducted or promoted
are:
(a) To prospect, explore and drill for, or otherwise acquire,
import, export, product, mine, gather, store, treat, refine, reform, blend,
combine, manufacture, strip, purchase, transmit, transport, sell or otherwise
dispose of, furnish and deliver natural, artificial and mixed gas, oil and other
hydrocarbons including gasoline, and sulfur and other minerals and mineral
substances either gaseous, liquid or solid, together with all derivatives,
products or by-products thereof;
(b) To construct, purchase, lease or otherwise acquire, own, operate
maintain, sell or otherwise dispose of pipelines and underground storage areas
or facilities for the transmission, purchase, production, storage or sale of
natural, artificial or mixed gas, together with such machinery, plants,
appliances, supplies and other
<PAGE> 2
Exhibit 6-A
Page 2 of 8
equipment and property used, useful or convenient to the operation and
maintenance of said pipelines, and underground storage areas or facilities;
(c) To construct, purchase, lease or otherwise acquire, own,
operate, maintain, sell or other dispose of, a system or systems, of
communications by radio, telephone, telegraph or otherwise, together with such
machinery, plants, appliances, supplies and other equipment and property used,
useful or convenient to the operation and maintenance of such systems, for use
only in connection with the business of the Corporation and not as common
carrier or public utility;
(d) To manufacture, purchase, use, sell, lease and deal in machines
and inventions consuming or utilizing gas, oil or vapor as a fuel, as light
and/or heat, or other energy application, or as a raw material or other
component in any manufacturing or corresponding process;
(e) To manufacture, purchase or otherwise acquire, lease, invest in,
own, mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade,
deal in and deal with goods, wares and merchandise and personal property of
every class and description;
(f) To purchase, receive, take by grant, gift, devise, bequest or
otherwise, lease, or otherwise acquire, own, hold, improve, employ, use and
otherwise deal in and with real or personal property, either tangible or
intangible, or any interest therein, wherever situated, and to sell, convey,
lease, exchange, transfer or otherwise dispose of, or mortgage or pledge, all or
any of the corporation's property and assets, or any interest therein, wherever
situated;
(g) To exercise the power of eminent domain to the fullest extent
permitted by Federal law or Federal law of applicable State statutes for the
purpose of acquiring such real or personal property and such casements, rights
of way, licenses or other interest in such real or personal property, as may be
necessary or convenient in the construction and/or operation and maintenance of
any property or facilities of the Corporation to which such Federal law or
applicable State statutes apply;
(h) To acquire, bring together, hold, dispose of and deal in,
royalty and other interests in minerals and to manage and control said mineral
interests and to collect the revenues arising therefrom;
(i) To lend money for its corporate purposes, invest and reinvests
its funds, and take, hold and deal with real and personal property as security
for the payment of funds so loaned or invested;
(j) To apply for, receive, acquire, hold, use, sell, assign, lease,
grant licenses in respect of, mortgage of otherwise dispose of letters patent of
the United States or any foreign country, patent rights, territorial rights,
licenses, permits, certificates, privileges or other governmental authorization
from any Federal, State or local
<PAGE> 3
Exhibit 6-A
Page 3 of 8
governmental agency, inventions, names, improvements and processes, copy rights,
trademarks and trade names that may be necessary, appropriate, or convenient for
the carrying out of any of the business or purposes to be conducted or promoted
by the corporation;
(k) To enter into, make, perform, carry out and rescind contracts of
every kind including contracts of guaranty and suretyship, as principal agent or
otherwise, with any person, firm, association, corporation, government, state,
municipality, or other governmental agency or political subdivision thereof or
body politic, or colony or dependency thereof;
(l) To borrow or raise moneys for any of the purposes of the
corporation and, from time to time without limits as to amount, to draw, make,
accept, endorse, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable instruments
and evidences of indebtedness, and to secure the payment of any thereof and of
the interest thereon by mortgage upon or pledge, conveyance or assignment in
trust of the whole or any part of the property of the corporation, whether at
the time owned or thereafter acquired, and to sell, pledge or otherwise dispose
of such bonds or other obligations of the corporation for its corporate
purposes;
(m) To participate with others in any corporation, partnership,
limited partnership, joint venture, or other association of any kind or in any
transaction, undertaking or arrangement which the participating corporation
would have power to conduct by itself, whether or not such participation
involves sharing or delegation of control with or to others;
(n) To carry on and conduct research work upon any and all problems
arising in connection with the development of its properties for the purchase,
production, storage and transportation of oil, gas, sulphur and other minerals
and mineral substances either gaseous, liquid or solid, and the refining and
extraction therefrom and the refining of any product or by-product or derivative
thereof and any commercial use, or application of any such minerals or mineral
substances or products, by-products, or derivatives thereof, or in connection
with any of the other objects and purposes of the Corporation;
(o) To conduct and carry on any of the objects and purposes herein
enumerated through or by means of investment in subsidiaries or in the stock,
securities, or other evidences of interest in corporations, joint stock
companies, syndicates, firms, trusts, partnerships, or other associations of any
kind engaged in carrying on or conducting any one or more of the businesses or
enterprises which the Corporation is authorized to conduct and carry hereunder;
(p) To acquire by purchase, subscription or otherwise and to
receive, hold, own, guarantee, sell, assign, exchange, transfer, mortgage,
pledge or otherwise dispose of or deal in and with any of the shares of the
capital stock, or any voting trust certificates in respect of the shares of
capital stock, scrip, warrants, rights, bonds,
<PAGE> 4
Exhibit 6-A
Page 4 of 8
debentures, notes, trust receipts, and other securities, obligations, choses in
action and evidences of indebtedness or interest issued or created by any
corporation, joint stock companies, syndicates, associations, firms, trusts, or
persons, public or private, or by the government of the United States of America
or by any foreign government or by any state, territory, province, municipality
or other political subdivision or by any governmental agency and as owner
thereof to possess and exercise all the rights, powers, and privileges of
ownership, including the right to execute consents and vote thereon, and to do
any and all acts and things necessary or advisable for the preservation,
protection, improvement and enhancement in value thereof;
(q) To purchase or otherwise acquire its own shares of stock and its
bonds, debentures, notes, scrip or other securities or evidences of
indebtedness, and to cancel or to hold, transfer or reissue the same to such
persons, firms, corporation or associations, and upon such terms and conditions
as the Board of Directors may in its discretion determine, without offering any
thereof on the same terms or on any terms to the stockholders then of record or
to any class of stockholders;
(r) To aid in any manner any corporation, joint stock company,
syndicate, association or trust, domestic or foreign, or any firm or individual,
any shares of stock in which or any bonds, debentures, notes, securities,
evidences of indebtedness, contracts or obligations of which are held by or for
this Corporation, directly or indirectly, or in which, or in the welfare of
which this Corporation shall have any interest, and to do any acts designed to
protect, preserve, improve or enhance the value of any property at any time held
or controlled by this Corporation or in which it may be at any time interested,
directly or indirectly, or through other corporations or otherwise; and to cause
to be formed, merged, consolidated or reorganized or liquidated and to promote,
take charge of or aid in any way permitted by law, the formation, merger,
consolidation, reorganization or liquidation of any corporation or entity in the
United States or elsewhere;
(s) To sue and be sued in all courts and participate, as a party or
otherwise, in any judicial, administrative, arbitrative or other proceeding, in
its corporate name, and to delegate by power of attorney to any person or
persons authority to commence, prosecute, defend, compromise or settle any
claims, actions, or suits in behalf of or against the Corporation, either at law
or in equity or otherwise;
(t) To issue its capital stock, bonds, debentures, or other
obligations in payment for property purchased or acquired by it or for money
borrowed, or for any other lawful object in or about its business;
(u) To acquire, and pay for in cash, stock or bonds of this
Corporation or otherwise, the good will, rights, assets and property, and to
undertake or assume the whole or any part of the obligations or liabilities of
any person, firm, association or corporation;
<PAGE> 5
Exhibit 6-A
Page 5 of 8
(v) To pay pensions and establish and carry out pension, profit
sharing, stock option, stock purchase, stock bonus, retirement, benefit,
incentive and compensation plans, trusts and provisions for any or all of its
directors, officers, and employees, and for any or all of the directors,
officers, or employees of its subsidiaries;
(w) To provide insurance for its benefit on the life of any of its
directors, officers, or employees, or on the life of any stockholder for the
purpose of acquiring at his death shares of its stock owned by such stockholder;
(x) In general, to possess and exercise all the powers and
privileges granted by the General Corporation Law of Delaware or by any other
law of Delaware or by this Certificate of Incorporation together with any powers
incidental thereto, so far as such powers and privileges are necessary or
convenient to the conduct, promotion or attainment of the business or purposes
of the corporation.
The business and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be in nowise limited or restricted by
reference to, or inference from, the terms of any other clause in this
Certificate of Incorporation, but the business and purposes specified in each of
the foregoing clauses of this article shall be regarded as independent business
and purposes.
FOURTH: The total number of shares of stock which the corporation
shall have authority to issue is fifteen million (15,000,000) and the par value
of each of such shares is Twenty-Five Dollars ($25) amounting in the aggregate
to Three Hundred Million Dollars ($375,000,000).
FIFTH: The Corporation is to have perpetual existence.
SIXTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and stockholders, it is
further provided:
1. The number of directors of the Corporation shall be such as from
time to time shall be fixed by, or in the manner provided in, the
By-laws, but in no case shall the number be less than three. The
directors need not be stockholders.
2. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
(a) To make, alter or repeal the By-laws of the Corporation
subject to the power of the stockholders to alter or repeal
the By-laws made by the Board of Directors.
(b) Subject to the applicable provisions of the By-laws then
in effect, to determine, from time to time, whether and to
what extent
<PAGE> 6
Exhibit 6-A
Page 6 of 8
and at what times and places and under what conditions and
regulations the accounts and books and documents of the
Corporation, or any of them, shall be opened to the inspection
of the stockholders, and no stockholder shall have any right
to inspect any account or book or document of the Corporation,
except as conferred by statute, unless and until authorized so
to do by resolution of the Board of Directors or of the
stockholders of the Corporation.
(c) To authorize and cause to be executed mortgages and liens
upon the real and personal property of the corporation.
(d) To determine whether any and, if any, what part, of the
net profits of the Corporation or of its surplus shall be
declared in dividends and paid to the stockholders, and to
direct and determine the use and disposition of any such net
profits or such net assets in excess of capital.
(e) To set apart out of any funds of the Corporation available
for dividends a reserve or reserves for any property purpose
and to abolish any such reserve or reserves, to make such
other provisions, if any, as the Board of Directors may deem
necessary or advisable for working capital, for additions,
improvements and betterments to plant and equipment, for
expansion of the business of the Corporation (including for
acquisition of real and personal property for that purpose)
and for any other purposes of the Corporation.
(f) By resolution or resolutions passed by a majority of the
whole board, to designate one or more committees, each
committee to consist of two or more of the directors of the
corporation. The board may designate one or more directors as
alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. Any
such committee, to the extent provided in the resolution or in
the by-laws of the corporation, shall have and may exercise
the powers of the board of directors in the management of the
business and affairs of the corporation to be affixed to all
papers which may require it; provided, however, the by-laws
may provide that in the absence or disqualification of any
member of such committee or committees, the member or members
thereof present at any meeting and not disqualified from
voting, whether or not 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.
<PAGE> 7
Exhibit 6-A
Page 7 of 8
(g) When and as authorized by the affirmative vote of the
holders of a majority of the stock issued and outstanding
having voting power given at a stockholders' meeting duly
called upon such notice as is required by statute, or when
authorized by the written consent of the holders of a majority
of the voting stock issued and outstanding, to sell, lease, or
exchange all or substantially all of the property and assets
of the corporation, including its good will and its corporate
franchises, upon such terms and conditions and for such
consideration, which may consist in whole or in part of money
or property including shares of stock in, and/or other
securities of, any other corporation or corporations, as its
board of directors shall deem expedient and for the best
interests of the corporation.
(h) The Corporation may in its By-laws confer powers upon its
Board of Directors in addition to the foregoing, and in
addition to the powers and authorities expressly conferred
upon it by statute.
SEVENTH. Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws 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 by-laws of the corporation. Elections of directors
need not be by written ballot unless the by-laws of the corporation shall so
provide.
EIGHTH. 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.
NINTH. No non-voting equity securities of the Corporation may be issued.
This provision is to comply with Section 1123 of the United States Bankruptcy
Code, 11 U.S.C. 1123(a)(5)(I), and Section 1123(a)(6), shall have no force and
effect except to the extent required by such Section so long as such Section is
in effect and applicable to the Corporation.
4. This Amended and Restated Certificate of Incorporation was duly adopted by
the board of directors in accordance with Section 245 of the General Corporation
Law of the State of Delaware and, pursuant to Section 303 of the General
Corporation Law of the State of Delaware, in accordance with the Corporation's
Second Amended Plan or Reorganization, as further amended, dated July 17, 1995,
as confirmed by the U.S. Bankruptcy Court for the District of Delaware on
November 15, 1995. The undersigned are the proper officers to execute this
Certificate under the provisions of 303(c) of the General Corporation Law of the
State of Delaware.
<PAGE> 8
Exhibit 6-A
Page 8 of 8
IN WITNESS WHEREOF, said COLUMBIA GAS TRANSMISSION CORPORATION has caused
this certificate to be signed by R. LARRY ROBINSON, its President and attested
by STEPHEN J. SMALL, its Secretary this 28th day of November, 1995.
By: /s/ R. Larry Robinson
-------------------------
President
ATTEST:
By: /s/ Stephen J. Small
- ------------------------
Secretary
<PAGE> 1
Exhibit 7-A
Page 1 of 2
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
COLUMBIA GAS TRANSMISSION CORPORATION
COLUMBIA GAS TRANSMISSION CORPORATION, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, by unanimous
written consent dated June 30, 1997, adopted resolutions proposing and declaring
advisable an amendment to ARTICLE FOURTH of the Restated Certificate of
Incorporation of said Corporation as follows:
RESOLVED, that the Board of Directors finds advisable and hereby
proposes to the stockholders of the Corporation that ARTICLE FOURTH of the
Restated Certificate of Incorporation of the Corporation be amended in its
entirety to read as follows:
ARTICLE FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is Three Thousand (3,000)
and the par value of each of such shares is Twenty-Five Dollars
($25.00) amounting in the aggregate to Seventy Five Thousand Dollars
($75,000).
RESOLVED, FURTHER, that effective at the time of the filing of the
Certificate of Amendment setting forth this amendment to the Restated
Certificate of Incorporation (the "Effective Time"), each share of the
common stock of the Corporation, par value $25.00 per share, issued and
outstanding or held in treasury immediately prior to the Effective Time
shall, without the exchange of stock certificates or the taking of any
other action on the part of the Corporation or the respective holders
thereof, be reclassified into one five thousandth (1/5000th) of a share of
common stock of the Corporation, par value $25.00 per share, and each
stock certificate that, immediately prior to the Effective Time,
represented shares of such common stock shall, from and after the
Effective Time, and without the necessity of presenting the same for
exchange, represent one five thousandth (1/5000th) of the number of shares
designated on such stock certificate, provided, however, that after the
Effective Time, upon the surrender by any stockholder of certificates
bearing the number of shares of the Corporation's common stock represented
by such certificate prior to the Effective Time, the
<PAGE> 2
Exhibit 7-A
Page 2 of 2
officers of the Corporation be, and they hereby are, authorized and
directed to issue in exchange therefor one or more new certificates
bearing the number of reclassified shares of the Corporation's common
stock;
RESOLVED, FURTHER, that the foregoing amendment is advisable and its
adoption is in the best interests of the Corporation and its stockholders
and, to effectuate the foregoing, it is hereby directed that the foregoing
amendment be considered at the next annual meeting of the stockholders,
unless earlier approved by written consent in accordance with Section 228
of the Delaware General Corporation Law;
RESOLVED, FURTHER, that after approval of such amendment by the
stockholders of the Corporation and receipt of all necessary regulatory
approvals, the officers of the Corporation be, and they hereby are,
authorized and directed to execute, acknowledge and file with the
Secretary of State of the State of Delaware a Certificate of Amendment to
evidence the foregoing amendment to the Corporation's Restated Certificate
of Incorporation; and
RESOLVED, FURTHER, that the officers of the Corporation be, and they
hereby are, authorized and directed from time to time to execute any and
all documents and to take any and all other actions necessary or
appropriate to carry forward the foregoing resolutions.
SECOND: That in lieu of a meeting and vote of the stockholders, The
Columbia Gas System, Inc., being the holder of the outstanding stock of the
Corporation having not less than the minimum number of votes that would be
necessary to authorize or take action at a meeting at which all shares entitled
to vote thereon were present and voted, approved said amendment by written
Consent dated as of August 1, 1997, in accordance with the provisions of Section
228(a) of the General Corporation Law of the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, Columbia Gas Transmission Corporation has caused this
Certificate to be signed by Ms. Catherine Good Abbott, its President, and
attested by Mr. James A. Jarrell, its Secretary, this 11th day of August, 1997.
By: /s/ Catherine Good Abbott
-------------------------
President
ATTEST: /s/ James A. Jarrell
--------------------
Secretary
<PAGE> 1
Exhibit 8-A
Page 1 of 2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
COLUMBIA GULF TRANSMISSION COMPANY
COLUMBIA GULF TRANSMISSION COMPANY, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, by unanimous
written consent dated June 30, 1997, adopted resolutions proposing and declaring
advisable an amendment to part FOURTH of the Certificate of Incorporation of
said Corporation as follows:
RESOLVED, that the Board of Directors finds advisable and hereby
proposes to the stockholders of the Corporation that part FOURTH of the
Certificate of Incorporation of the Corporation be amended in the entirety
to read as follows:
FOURTH: The total numbers of shares of stock which the Corporation
shall have authority to issue is Three Thousand (3,000) and the par
value of each of such shares is Ten Dollars ($10.00) amounting in
the aggregate to Thirty Thousand Dollars ($30,000).
RESOLVED, FURTHER, that effective at the time of the filing of the
Certificate of Amendment setting forth this amendment to the Certificate
of Incorporation (the "Effective Time"), each share of the common stock of
the Corporation, par value $10.00 per share, issued and outstanding or
held in treasury immediately prior to the Effective Time shall, without
the exchange of stock certificates or the taking of any other action on
the part of the Corporation or the respective holders thereof, be
reclassified into one three thousandths (1/3000) of a share of common
stock of the Corporation, par value of $10.00 per share, and each stock
certificate that, immediately prior to the Effective Time, represented
shares of such common stock shall, from and after the Effective Time, and
without the necessity of presenting the same for exchange, represent one
three thousandths (1/3000) of the number of shares designated on such
stock certificate, provided, however, that after the Effective Time, upon
the surrender by any stockholder of certificates bearing the number of
shares of the Corporation's common stock represented by such certificate
prior to the Effective Time, the officers of the Corporation be, and they
hereby are, authorized and directed to
<PAGE> 2
Exhibit 8-A
Page 2 of 2
issue in exchange therefore one or more new certificates bearing the
number of reclassified shares of the Corporation's common stock;
RESOLVED, FURTHER, that the foregoing amendment is advisable and its
adoption is in the best interests of the Corporation and its stockholders
and, to effectuate the foregoing, it is hereby directed that the foregoing
amendment be considered at the next annual meeting of the stockholders,
unless earlier approved by written consent in accordance with Section 228
of the Delaware General Corporation Law;
RESOLVED, FURTHER, that after approval of such amendment by the
stockholders of the Corporation and receipt of all necessary regulatory
approvals, the officers of the Corporation be, and they hereby are,
authorized and directed to execute, acknowledge and file with the
Secretary of State of the State of Delaware a Certificate of Amendment to
evidence the foregoing amendment to the Corporation's Certificate of
Incorporation; and
RESOLVED, FURTHER, that the officers of the Corporation be, and they
hereby are, authorized and directed from time to time to execute any and
all documents and to take any and all other actions necessary or
appropriate to carry forward the foregoing resolutions.
SECOND: That in lieu of a meeting and vote of the stockholders, The
Columbia Gas System, Inc., being the holder of the outstanding stock of the
Corporation having not less than the minimum number of votes that would be
necessary to authorize or take action at a meeting at which all shares entitled
to vote thereon were present and voted, approved said amendment by written
Consent dated as of August 1, 1997, in accordance with the provisions of Section
228(a) of the General Corporation Law of the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, Columbia Gulf Transmission Company has caused this
Certificate to be signed by Mr. Terry L. McGill, its President, and attested by
Mr. Stephen R. Melton, its Secretary, this 14th day of August, 1997.
By: /s/ Terry L. McGill
-----------------------
President
ATTEST
By: /s/ Stephen R. Melton
- -------------------------
Secretary
<PAGE> 1
Exhibit 9-A
Page 1 of 2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CLNG CORPORATION
CLNG CORPORATION, a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation (the "Board"), by
unanimous consent dated as of June 1, 1996, adopted resolutions proposing and
declaring advisable an amendment to Part SEVENTH of the Certificate of
Incorporation of said Corporation as follows:
RESOLVED, that the Board of Directors finds advisable and hereby
proposes to the stockholders of the Corporation that part SEVENTH of the
Certificate of Incorporation of the Corporation be amended in its entirety
to read as follows:
"SEVENTH: For the management of the business and for the conduct of
the affairs of the Corporation, it is further provided:
1. The number of directors of the Corporation shall be as from time
to time shall be fixed by, or in the manner provided in, the By-Laws, and
in no case shall the number be less than TWO (2). The directors need not
be stockholders of the Corporation.
2. In furtherance, and not in limitation, of the powers conferred by
statute, the Board of Directors is expressly authorized:
(a) to make, alter or repeal by-laws of the Corporation, subject to
the power of the stockholders of the corporation to alter or repeal any
by-laws whether adopted by the stockholders or otherwise.
(b) to exercise the powers and authorities as are provided in the
By-Laws then in effect, subject to applicable limitations as provided in
such By-Laws."
RESOLVED, FURTHER, that the foregoing amendment is advisable and its
adoption is in the best interests of the Corporation and its stockholders
and, to effectuate the foregoing, it is hereby directed that the foregoing
amendment be considered at the next annual meeting of the stockholders,
unless earlier approved
<PAGE> 2
Exhibit 9-A
Page 2 of 2
by written consent in accordance with Section 228 of the Delaware General
Corporation Law; and
RESOLVED, FURTHER, that after approval of such amendments by the
stockholders of the Corporation, the officers of the Corporation be, and
they hereby are, authorized and directed to execute, acknowledge and file
with the Secretary of State of the State of Delaware a Certificate of
Amendment to evidence the foregoing amendments to the Corporation's
Restated Certificate Incorporation.
SECOND: That thereafter, by resolution, the Board declared said amendment
to be advisable and its adoption to be in the best interests of the Corporation
and its stockholders and, to effectuate the foregoing, the Board directed that
said amendment be considered at the next annual meeting of the stockholders,
unless otherwise approved by written consent in accordance with Section 228 of
the Delaware General Corporation Law.
THIRD: That in lieu of a meeting and vote of the stockholders, Columbia
LNG Corporation, being the holder of all of the outstanding stock of the
Corporation and therefore having not less than the minimum number of votes that
would be necessary to authorize or take action at a meeting at which all shares
entitled to vote thereon were present and voted, approved said amendment by
written Consent dated as of June 3, 1996, in accordance with the provisions of
Section 228(a) of the General Corporation Laws of the State of Delaware.
FOURTH: That said amendment was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, CLNG Corporation has caused this Certificate to be
signed by L. Michael Bridges, its President and attested by Tejinder S. Bindra,
its Secretary, this ____ day of ______, 1997.
By: /s/ L. Michael Bridges
----------------------
President
ATTEST
By: /s/ Tejinder S. Bindra
----------------------
Secretary
<PAGE> 1
Exhibit 10-A
Page 1 of 3
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ALAMCO, INC.
ALAMCO, INC., a corporation organized and existing under the laws of
the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Alamco, Inc. (the "Corporation"). The
Corporation was originally incorporated under the name Allegheny Land and
Mineral Company, and the original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
May 14, 1981.
2. Pursuant to Section 242 and 245 of the General Corporation Law of
the State of Delaware, this Restated Certificate of Incorporation restates and
integrates and further amends the provisions of the Certificate of Incorporation
of the Corporation.
3. The test of the Restated Certificate of Incorporation as heretofore
amended or supplemented is hereby restated and further amended to read in its
entirety as follows:
ARTICLE - NAME
The name of this corporation is Alamco, Inc. (the "Corporation").
ARTICLE II - REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is the Corporation Trust Center, 1209 Orange Street, Wilmington, County
of New Castle, Delaware and the name of its registered agent at such address is
The Corporation Trust Company.
ARTICLE III - CORPORATION PURPOSES
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "General Corporation Law").
ARTICLE IV - CAPITAL STOCK
(a) The total number of shares of stock which the Corporation shall
have authority to issue is three thousand (3,000). All such shares are to be
common stock, par value of One Dollar ($1.00) per share (the "Common Stock"),
and are to be one class.
(b) No stockholder shall have any preemptive right to subscribe to any
additional issue of shares of any class or series thereof the stock of the
Corporation or to any securities of the Corporation convertible into or
exchangeable for such stock.
<PAGE> 2
Exhibit 10-A
Page 2 of 3
ARTICLE V - CREDITORS OF THE CORPORATION
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors of any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
ARTICLE VI - DIRECTORS
(a) The number of directors constituting of the board of directors,
quorum and voting requirements, shall be fixed by, or in the manner provided in,
the bylaws of the Corporation.
(b) A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent permitted under the General Corporation
Law as the same exists or may hereafter be amended. Any repeal or modification
of the foregoing sentence shall not adversely affect any right or protection of
a director or former director of the Corporation with respect to any act or
omission occurring prior to such repeal or modification.
(c) Unless and except to the extent that the bylaws of the Corporation
shall so require, the election of the directors of the Corporation need not be
by written ballot.
ARTICLE VII - BYLAWS
In furtherance and not in limitation of the power conferred by the laws
of the State of Delaware, the Corporation's board of directors is expressly
authorized and empowered to adopt, amend and repeal the bylaws of the
Corporation, subject to the
<PAGE> 3
Exhibit 10-A
Page 3 of 3
power of the stockholders of the Corporation, to amend or repeal any bylaw made
by the board of directors.
ARTICLE VIII - CHARTER AMENDMENTS
The Corporation reserves the right at any time, and from time to time,
to amend, alter, change or repeal any provision contained in this certificate of
incorporation, and other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted, in the manner now and
hereafter prescribed by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this certificate of incorporation in its present
form or as hereafter amended are granted subject to the rights reserved in this
Article VIII.
IN WITNESS WHEREOF, the undersigned has executed this Amended
and Restated Certificate of Incorporation as of this 7th day of August, 1997.
ALAMCO, INC.
BY: /s/ W. H. HARMON
---------------
W. H. Harmon
President
<PAGE> 1
Exhibit 8-B
Page 1 of 14
ARTICLE I
OFFICES
Section 1. Register Office. The register office of Alamco, Inc. (the
"Corporation") shall be in the City of Wilmington, County of New Castle, State
of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Corporation's
board of directors (the "Board of Directors") may from time to time determine or
the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place. All meetings of the stockholders for the election of
directors shall be held in the County of New Castle, State of Delaware, at such
place as may be fixed from time to time by the Board of Directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the state of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. Annual meetings of stockholders shall be
held on the first Monday of June if not a legal holiday, and if a legal holiday,
then on the next secular day following at 10:00 am or at such other date and
time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which they shall elect by a plurality
vote a Board of Directors, and transact such other business as may properly be
brought before the meeting.
Section 3. Notice. Written notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled
to vote at such meeting not less than ten (10) nor more than sixty (60) days
before the date of the meeting.
Section 4. Stockholder's List. The officer who has charge of the stock
ledger of the Corporation shall prepare and make at least ten days before every
meeting of stockholder, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held which place shall be specified in the notice
<PAGE> 2
Exhibit 8-B
Page 2 of 14
of the meeting, or if not specified at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present.
Section 3. Notice. Written notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled
to vote at such meeting not less than ten (10) nor more than sixty (60) days
before the date of the meeting.
Section 4. Stockholder's List. The officer who has charge of the stock
ledger of the Corporation shall prepare and make at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Corporation's certificate of incorporation (as the same may be amended or
restated from time to time, the "Certificate of Incorporation"), may be called
by the president and shall be called by the president or secretary at the
request in writing of a majority of the Board of Directors, or at the request in
writing of stockholders owning a majority in amount of the entire capital stock
of the Corporation issued and outstanding and entitled to vote. Such request
shall state the purpose or purposes of the proposed meeting. Written notice of a
special meeting stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called shall be given not less than ten
(10) nor more than sixty (60) days before the date of the meeting, to each
stockholder entitled to vote at such meeting. Business transacted at any special
meeting of the stockholders shall be limited to the purposes stated in the
notice.
Section 6. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to not
be present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting, at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new
<PAGE> 3
Exhibit 8-B
Page 3 of 14
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
meeting. When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which by express provision of statute or of the Certificate of
Incorporation, a different vote is required in which cash such express provision
shall govern and control the decision of such question.
Section 7. Votes. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted after
three years from its date, unless the proxy provides for a longer period.
Section 8. Action by Consent. Unless otherwise provided in the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders of the Corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders 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 all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE III
DIRECTOR
Section 1. Number. The number of directors which shall constitute the
whole Board of Directors shall be not less than three (3). The number of
directors shall be determined by resolution of the Board of directors or by the
stockholders at the annual meeting. The directors shall be elected at the annual
meeting of the stockholders, except as provided in Section 2 of this Article,
and each director elected shall hold office until his or her successor is
elected and qualified. Directors need not be stockholders.
Section 2. 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
a sole remaining director, and the directors so chosen shall hold office until
the next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by statute.
<PAGE> 4
Exhibit 8-B
Page 4 of 14
Section 3. General Powers. The business of the Corporation shall be
managed by the Board of Directors which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the Certificate of Incorporation or by these Bylaws directed or required to be
exercised or done by the stockholders.
Section 4. Meetings of the Board of Directors. The Board of Directors
may hold meetings, both regular and special, either within or without the State
of Delaware. The first meeting of each newly-elected Board of Directors shall be
held at such time and place as shall be fixed by the vote of the stockholders at
the annual meeting and no notice of such meeting shall be necessary to the
newly-elected directors in order legally to constitute the meeting, provided all
of the directors shall be present. In the event of the failure of the
stockholders to fix the time or place of first meeting of the newly-elected
Board of Directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the Directors. In lieu of holding such meeting,
the newly-elected Board of Directors may act by written consent consistent with
these Bylaws.
Section 5. Notice of Meetings. Regular meetings of the Board of
Directors may be held without at such time and at such place as shall from time
to time be determined by the Board of Directors. Special meetings of the Board
of Directors may be called by the President, the Secretary or any Assistant
Secretary on six (6) hours notice to each director, either personally or by mail
or by telegram: special meetings shall be called by the President, the Secretary
or an Assistant Secretary in the like manner and like notice on the written
request of two directors.
Section 6. Quorum. At all meetings of the Board of Directors, a
majority of the directors then in office shall constitute a quorum for the
transaction of business (provided that not less than one-third of the total
number of directors shall be necessary to constitute a quorum), and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the Certificate of Incorporation. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present there may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 7. Action by Consent. Unless otherwise specifically restricted
by the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board of
Directors or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors or committee.
Section 8. Telephonic Meetings. Unless otherwise specifically
restricted by the Certificate of Incorporation or these Bylaws, members of the
Board of Directors, or any
<PAGE> 5
Exhibit 8-B
Page 5 of 14
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all person participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
Section 9. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
or more committees, each committee to consist of one or more of the directors of
the Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee. In the absence or disqualification of a
member of a committee, the member or members thereof 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. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it, but no such committee shall have the power or authority in reference
to the following: (i) approving or adopting or recommending to the stockholders,
any action or matter expressly required by statute to be submitted to
stockholders for approval or (ii) adopting, amending or repealing any Bylaw of
the Corporation. Such committee or committees shall have such name or names as
may be determined from time to time by resolution adopted by the Board of
Directors. Each committee shall keep regular minutes of its meeting and report
the same to the Board of Directors.
Section 10. Compensation of Directors. Unless otherwise specifically
restricted by the Certificate of Incorporation or these Bylaws, the Board of
Directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or stated salary as director. No such payment
shall preclude any director from serving the Corporation in any other capacity
and receiving compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee meetings.
ARTICLE IV
NOTICES
Whenever, under the provisions of applicable statute or of the
Certificate of Incorporation or of these Bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United
<PAGE> 6
Exhibit 8-B
Page 6 of 14
States mail. Notice may also be given by telegram, data fax, or other similar
method of transmitting a written communication. A waiver of notice in writing,
signed by the person or persons entitled to said notice, whether before or after
the time stated therein, shall be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by
the Board of Directors and shall be a president and at least one of the
following: a secretary, a Treasurer and/or a Controller. The Board of Directors
may also choose Vice-Presidents and one or more Assistant Secretaries and
Assistant Treasurers and/or Assistant Controllers. Any number of officers may be
held by the same person, unless the Certificate of Incorporation or these Bylaws
otherwise provide. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall have such titles hold their offices
for such terms and shall exercise such powers and perform such duties as shall
be determined from time to time by the Board of Directors.
Section 2. Compensation. The compensation of all officers and agents of
the Corporation shall be fixed by the Board of Directors.
Section. 3. Vacancies. The officers of the Corporation shall hold
office until their successors are chosen and qualify. Any officer elected or
appointed by the Board of Directors may be removed at any time by the Board of
Directors. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors.
Section 4. The President and Vice President. The President shall be the
chief executive officer of the Corporation, shall preside at all meetings of the
stockholders and the Board of Directors shall have general and active management
of the business of the Corporation and shall see that all orders and resolutions
of the Board of Directors are carried into effect. The President shall execute
bonds, mortgages, and other contracts requiring a seal under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the Corporation. The Vice President or if there be more than one, the Vice
Presidents in the order determined by the Board of Directors (or is there be no
such determination, then in the order of their election), shall perform such
duties and exercise such powers as the Board of Directors may from time to time
prescribe.
Section 5. Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and
<PAGE> 7
Exhibit 8-B
Page 7 of 14
special meetings of the Board of Directors, and shall perform such other duties
as may be prescribed by Board of Directors or President, under whose supervision
he or she shall be. The Secretary shall have custody of the corporate seal of
the Corporation and the Secretary, or an Assistant Secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by the signature of the Secretary or an Assistant Secretary.
The Board of Directors may give general authority to any instrument requiring it
and when so affixed, it may be attested by the signature of the Secretary or an
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation and to attest the affixing by
such officer's signature. An Assistant Secretary, or if there be more than one,
the Assistant Secretaries in the order determined by the Board of Directors (or
if there be no such determination then in the order of their election), shall in
the absence of the Secretary or in the event of the Secretary's inability or
refusal to act, perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
Section 6. Treasurer. The Treasurer and/or Controllers, or as directed
by the Board of Directors, one or more Assistant Treasurers and/or Assistant
Controllers shall have the custody of the custody funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit all monies and other valuable effects in
the name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Treasurer and/or Controller or, as
directed by the Board of Directors, one or more Assistant Treasurers and/or
Assistant Controllers shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the president and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all transactions made as Treasurer/Assistant Treasurer and/or as
Controller/Assistant Controller and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer or an
Assistant Treasurer and/or the Controller or an Assistant Controller shall give
the Corporation a bond (which shall be renewed every six (6) years) in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of their officers and for
the restoration to the Corporation in case of their death, resignation,
retirement or removal from office of all books, papers, vouchers, money and
other property of whatever kind in their possession or under their control
belongings to the Corporation. The Assistant Treasurer and/or Assistant
Controllers in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election) shall, in the absence
of the Treasurer and/or Controller or in the event of his or her inability or
refusal to act, perform the duties and exercise the powers of the Treasurer
and/or Controller and shall perform such other duties and such other powers as
the Board of Directors may from time to time prescribe.
<PAGE> 8
Exhibit 8-B
Page 8 of 14
ARTICLE IV
CAPITAL STOCK
Section 1. Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its book as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and 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
the laws of the State of Delaware.
Section 2. Certification. Shares of capital stock may be certificated
at the discretion of the Board of Directors. If certificated, then every holder
of capital stock in the Corporation shall receive a certificate, signed by, or
in the name of the Corporation, by the President or the Vice President and by
the Treasurer or an Assistant Treasurer and/or the Controller or an Assistant
Controller, or by the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the Corporation. Any of or all
the signatures on the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent or
register at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen 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, stolen 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 in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 4. Transfers of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof; or to express consent to corporate action in writing
without a meeting or entitled to received payment of any dividend or other
distribution or allotment
<PAGE> 9
Exhibit 8-B
Page 9 of 14
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, in advance, a record date, which shall not be
more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action. 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.
Section 6. Dividends. Dividends upon the capital stock of the
Corporation subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, or by written consent, pursuant to law. Dividends may be paid in cash,
in property, or in shares of the capital stock, subject to the provisions of the
Certificate of Incorporation. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ARTICLE VII
INDEMNIFICATION
Section 1. Right to Indemnification. The Corporation shall to the
fullest extend permitted by applicable law as then in effect indemnify any
person (the "Indemnitee") who was or is involved in any manner (including,
without limitation, as a party or a witness) or is threatened to be made so
involved in any threatened, pending or completed investigation, claim, action,
suite or proceeding, whether civil, criminal, administrative or investigative
(including without limitation, any action, suit or proceeding by or in the right
of the Corporation to procure a judgement in its favor) (a "Proceeding") by
reason of the fact that such person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise (including, without limitation, any
employee benefit plan) against all expenses (including attorneys' fees),
judgements, fines, and amounts paid in settlement actually and reasonably
incurred by such person in connection with such Proceeding. Such indemnification
shall be a contract right and shall include the right to receive payment of any
expenses (including attorney's fees) incurred by the Indemnitee in connection
with such Proceeding in advance of its final disposition, consistent with the
provisions of applicable law as then in effect.
Section 2. Insurance, Contract and Funding. The Corporation may
purchase and maintain insurance to protect itself any indemnitee against
expenses, judgements, fines and amounts paid in settlement as specified in
Section 1 of this Article VII or incurred by
<PAGE> 10
Exhibit 8-B
Page 10 of 14
an Indemnitee in connection with any proceeding referred to in Section 1 of this
Article VII to the fullest extent permitted by applicable law as then in
effect. The Corporation may enter into contracts with any director, officer,
employee or agent of the Corporation or use other means in furtherance of the
provisions of this Article VII to ensure the payment of such amounts as may be
necessary to effect indemnification as provided in this Article VII.
Section 3. Indemnification: Not Exclusive Right. The right of
indemnification provided in this Article VII shall not be exclusive of any other
rights to which those seeking indemnification may otherwise be entitled, and the
provisions of this Article VII shall inure to the benefit of the heirs and legal
representatives of any person entitled to indemnity under this Article VII and
shall be applicable to Proceedings commenced or continuing after the adoption of
this Article VII, whether arising from acts or omissions occurring before or
after such adoption.
Section 4. Advancement of Expenses, Procedures, Presumptions and Effect
of Certain Proceedings, Remedies. In furtherance but not in limitation of the
foregoing provisions, the following procedures, presumptions and remedies shall
apply with respect to advancement of expenses and the right to indemnification
under this Article VII:
(a) Advance of Expenses. All reasonable expenses (including
attorney's fees) incurred by or on behalf of the Indemnitee in connection with
any Proceeding shall be advanced to the Indemnitee by the Corporation within
twenty (20) days after the receipt by the Corporation of a statement or
statements from the Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the expenses incurred by the
Indemnitee and, if required, by law at the time of such advance, shall include
to be accompanied by an undertaking by or on behalf of the Indemnitee to repay
the amounts advanced if it should ultimately be determined that the Indemnitee
is not entitled to be indemnified against such expenses pursuant to this Article
VII.
(b) Procedure for Determination of Entitlement to
Indemnification.
(i) To obtain indemnification under this Article VII,
an Indemnitee shall submit to the secretary of the Corporation a written
request, including such documentation and information as is reasonably available
to the Indemnitee and reasonably necessary to determine whether and to what
extent the Indemnitee is entitled to indemnification (the "Supporting
Documentation"). The determination of the Indemnitee's entitlement to
indemnification shall be made not later than sixty (60) days after receipt by
the Corporation of the written request for indemnification together with
Supporting Documentation. The secretary of the Corporation shall advise the
Board of Directors in writing, promptly upon receipt of such a request for
indemnification, that the Indemnitee has requested indemnification.
<PAGE> 11
Exhibit 8-B
Page 11 of 14
(ii) The Indemnitee's entitlement to indemnification under
this Article VII shall be determined in one of the following ways: (A) by a
majority vote of the Disinterested Directors (as hereinafter defined) whether or
not they constitute a quorum of the Board of Directors; (B) by a written opinion
of Independent Counsel (as hereinafter defined) if (x) a Change of Control (as
hereinafter defined) shall have occurred and the Indemnitee so requests or (y) a
majority of such Disinterested Directors so directs; (C) by the stockholders of
the Corporation (but only if a majority of the Disinterested Directors present
the issue of entitlement to indemnification to the stockholders for their
determination); or (D) as provided in Section 4(c) of this Article VII.
(iii) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section
4(b)(ii) of this Article VII, a majority of the Board of Directors shall select
the Independent Counsel, but only an Independent Counsel to which the Indemnitee
does not reasonably object; provided, however, that if a Change of Control shall
have occurred, the Indemnitee shall select such Independent Counsel, but only an
Independent Counsel to which the Board of Directors does not reasonably object.
(iv) The only basis upon which a finding of no entitlement to
indemnification may be made is that indemnification is prohibited by law.
(c) Presumptions and Effect of Certain Proceedings. Except as otherwise
expressly provided in this Article VII, if a Change of Control shall have
occurred, the Indemnitee shall be presumed to be entitled to indemnification
under this Article VII upon submission of a request for indemnification together
with Supporting Document in accordance with Section 4(b)(i) of this Article VII,
and thereafter the Corporation shall have the burden of proof to overcome that
presumption in reaching a contract determination. In any event, if the person or
persons empowered under Section 4(b) to determine entitlement to indemnification
shall not have been appointed or shall not have made a determination within
sixty (60) days after receipt of the Corporation of the request therefor
together with the Supporting Documentation, the Indemnitee shall be deemed to be
entitled to indemnification, and the Indemnitee shall be entitled to such
indemnification unless Indemnitee misrepresented or failed to disclose a
material fact in making the request for indemnification or in the Supporting
Documentation or such indemnification is prohibited by law. The termination of
any Proceeding described in Section 1 of this Article VII, or of any claim,
issue or matter therein, by judgement, order, settlement or conviction, or upon
a plea of nolo contendere or its equivalent, shall not of itself adversely
affect the right of the Indemnitee to indemnification or create a presumption
that the Indemnitee did not act in good faith and in a manner which the
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Corporation or, with respect to any criminal Proceeding, that the Indemnitee
had reasonable cause to believe that the Indemnitee's conduct was unlawful.
<PAGE> 12
Exhibit 8-B
Page 12 of 14
(d) Remedies of Indemnitee.
(i) In the event that a determination is made pursuant to
Section 4(b) or Section 4(c) of this Article VII that the Indemnitee is not
entitled to indemnification under this Article VII, (A) the Indemnitee shall be
entitled to seek an adjudication of his entitlement to such indemnification
either, at the Indemnitee's sole option, in (x) an appropriate court of the
State of Delaware or any other court of competent jurisdiction or (y) an
arbitration to be conducted by a single arbitrator pursuant to the rules of the
American Arbitration Association; (B) any such judicial proceeding or
arbitration shall be de novo and the Indemnitee shall not be prejudiced by
reason of such adverse determination; and (C) in any such judicial proceeding or
arbitration, the Corporation shall have the burden of proving that the
Indemnitee is not entitled to indemnification under this Article VII.
(ii) If pursuant to Section 4(b) or Section 4(c) of this
Article VII a determination shall have been made or deemed to have been made
that the Indemnitee is entitled to indemnification, the Corporation shall be
obligated to pay the amounts constituting such indemnification within five (5)
days after such determination has been made or is deemed to have been made and
shall be conclusively bound by such determination unless (A) the Indemnitee
misrepresented or failed to disclose a material fact in making the request for
indemnification or in the Supporting Documentation or (B) such indemnification
is prohibited by law. In the event that (x) advancement of expenses is not
timely made pursuant to Section 4(a) of this Article VII or (y) payment of
indemnification is not made within five (5) days after a determination of
entitlement to indemnification has been made or deemed to have been made
pursuant to Section 4(b) or Section 4(c) of this Article VIII the Indemnitee
shall be entitled to seek judicial enforcement of the Corporation's obligation
to pay the Indemnitee such advancement of expenses or indemnification.
Notwithstanding the foregoing, the Corporation may bring an action in an
appropriate court in the State of Delaware or any other court of competent
jurisdiction, contesting the right of the Indemnitee to receive indemnification
hereunder due to the occurrence of an event described in subclause (A) or (B) of
this clause (ii) (a "Disqualifying Event"); provided, however, that in any such
action the Corporation shall have the burden of proving the occurrence of such
Disqualifying Event.
(iii) The Corporation shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 4(d) that
the procedures and presumptions of this Article VII are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Corporation is bound by all the provisions of this Article VII are not
valid, binding and enforceable and shall stipulate in any such court or before
any such arbitrator that the Corporation is bound by all the provisions of this
Article VII.
(iv) In the event that pursuant to this Section 4(d) the
Indemnitee seeks a judicial adjudication of or an award in arbitration to
enforce the Indemnitee's rights under, or to recover damages for breach of, this
Article VII, the Indemnitee shall be entitled to recover from the Corporation,
and shall be indemnified by the Corporation
<PAGE> 13
Exhibit 8-B
Page 13 of 14
against, any expenses actually and reasonably incurred by the Indemnitee if the
Indemnitee prevails in such judicial adjudication or arbitration. If is shall be
determined in such judicial adjudication or arbitration that the Indemnitee is
entitled to receive part but not all of the indemnification or advancement of
expenses sought, the expenses incurred by the Indemnitee in connection with such
judicial adjudication or arbitration shall be prorated accordingly.
(e) Definitions. For Purposes of this Section 4:
(i) "Change in Control" means: (A) so long as the Public
Utility Holding Company Act of 1935 is in effect, any "company" becoming a
"holding company" in respect to the Corporation or any determination by the
Securities and Exchange Commission that any "person" should be subject to the
obligations, duties, and liabilities if imposed by said Holding Company Act by
virtue or his, hers or its influence over the management or policies of the
Corporation, or (B) whether or not said Holding Company Act is in effect, a
change in control of the Corporation of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934 (the "Act"), whether or not the
Corporation is then subject to such reporting requirement: provided that,
without limitation, such a change in control shall be deemed to have occurred if
(i) any "person" (as such term is used in Section 13(d) and 14(d) of the Act) is
or become the "beneficial owner" (as defined in Rule 13d-3 under the Act),
directly or indirectly of securities of the Corporation representing 10% or more
of the combined voting power of the Corporation's then outstanding securities
without the prior approval of at least two-thirds of the members of the Board of
Directors in office immediately prior to such acquisition; (ii) the Corporation
is a party to a merger, consolidation, sale of assets or other reorganization,
or a proxy contest, as a consequence of which members of the Board of Directors
in office immediately prior to such transaction or event constitute less than a
majority of the Board of Directors thereafter; or (iii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors (including for this purpose any new director whose
election by the Corporation's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the
beginning of such period) cease for any reason to constitute at least a majority
of the Board of Directors.
(ii) "Disinterested Director" means a director of the
Corporation who is not or was not a party to the Proceeding in respect of which
indemnification is sought by the Indemnitee.
(iii) "Independent Counsel" means a law firm or a member of a
law firm that neither presently is nor in the past five (5) years has been,
retained to represent: (A) the Corporation or the Indemnitee in any matter
material to either such party or (B) any other party to the Proceeding giving
rise to a claim for indemnification under this Article VII. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing under the
law of the State of Delaware, would have a conflict of interest in representing
<PAGE> 14
Exhibit 8-B
Page 14 of 14
either the Corporation or the Indemnitee in an action to determine the
Indemnitee's rights under this Article VII.
Section 5. Severability. If any provision or provisions of this Article
VII shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (i) the validity, legality and enforceability of the remaining
provisions of this Article VII (including, without limitation, all portions of
any paragraph of this Article CII containing any such provision held to be
invalid, illegal or unforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (ii) to
the fullest extent possible, the provisions of this Article VII (including,
without limitation, all portions of any paragraph of this Article VII containing
any such provision held to be invalid, illegal or unenforceable that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
Section 6. Successor Laws. Regulations and Agencies. Reference herein
to laws, regulations or agencies shall be deemed to include all amendments
thereof, substitutions therefore and successors thereto.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 2. Fiscal Year. The fiscal year of the Corporation begins on
the first day of January and ends on the thirty-first day of December in each
year.
Section 3. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be
impress or affixed or reproduced or otherwise.
Section 4. Amendments. These Bylaws may be altered, amended or repealed
or new Bylaws may be adopted by the stockholders or by the Board of Directors,
when such power is conferred upon the Board of Directors by the Certificate of
Incorporation, at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of 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.
Adopted as of: August 7, 1997.
<PAGE> 1
Exhibit 11-A
Page 1 of 2
CERTIFICATE OF INCORPORATION
OF
ALAMCO-DELAWARE, INC.
FIRST: The name of the Corporation is:
Alamco-Delaware, Inc.
SECOND: The address of the Corporation's registered office in the State
of Delaware is 103 Springer Building, 3411 Silveride Road in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is Organization Services, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 1,000 shares of common stock of the par value of $.01
per share.
FIFTH: The name and mailing address of the incorporator are: Kristen
Larkin Stewart, Kirkpatrick & Lockhart, 1500 Oliver Building, Pittsburgh,
Pennsylvania, 15222.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: In furtherance and not in limitation of the powers conferred
by statute, the board of directors is expressly authorized to adopt, amend or
repeal the by-laws of the Corporation.
EIGHTH: Meetings of stockholders may be held within or without the
State of Delaware, as the by-laws may provide. The books of the corporation may
be kept (subject to any provision contained in the statutes) inside or 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 by-laws of the Corporation. Elections
of directors need not be by written ballot unless the by-laws of the Corporation
shall so provide.
NINTH: 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.
TENTH: (a) The personal liability of the directors of the Corporation
is hereby eliminated to the fullest extent permitted by Section 102(b)(7) of the
General Corporation Law of the State of Delaware, as the same may be amended and
<PAGE> 2
Exhibit 11-A
Page 2 of 2
supplemented. Without limiting the generality of the foregoing, no director
shall be personally liable to the Corporation or any of its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of director's duty of loyalty to the Corporation or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the Delaware General Corporation Law, or (iv) or any transaction from
which the director derived an improper personal benefit.
(b) 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 who was or is made or is threatened to be made
a party or is otherwise involved in any action, suite or proceeding, whether
civil criminal, administrative 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, officer, employee or agent of the Corporation or 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
non-profit entity, including service with respect to employee benefit plans,
against all liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall be required to indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation. The rights to indemnification and
advancement of expenses conferred by this Article shall be presumed to have been
relied upon by directors and officers of the Corporation in serving or
continuing to serve the Corporation and shall be enforceable as contract
rights. Said rights shall not be exclusive of any other rights to which those
seeking indemnification may otherwise be entitled. The Corporation may enter
into contracts to provide such persons with specific rights to indemnification,
which contracts may confer rights and protections to the maximum extent
permitted by the Delaware General Corporation Law. The Corporation may create
trust funds, grant security interests, obtain letters of credit, or use other
means to ensure payment of such amounts as may be necessary to perform the
obligations provided for in this Article or in any such contract.
(c) Any repeal or modification of this Article by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification with respect to acts or omissions occurring prior to such repeal
or modification.
THE UNDERSIGNED, being the incorporator named above, for the purposes
of forming a corporation pursuant to the General Corporation Law of the State of
Delaware, does make this certificate, hereby declaring and certifying that this
is my act and deed and the facts herein stated are true, and accordingly have
hereunto set my hand this 21st day of July, 1994.
BY: /s/ Kristen Larkin Stewart
------------------------------------
Kristen Larkin Stewart, Incorporator
<PAGE> 1
Exhibit 12-A
Page 1 of 5
ARTICLES OF INCORPORATION
OF
HAWG HAULING & DISPOSAL, INC.
I. The undersigned agrees to become a corporation by the name of
HAWG HAULING & DISPOSAL, INC.
II. The address of the principal office of the Corporation will be
located at Route 1, Box 84A, Buckhannon, Upshur County, West Virginia, 26201.
III. The purpose or purposes for which the Corporation is formed are as
follows:
1. To collect, gather, transport, save, treat, process,
store, sell, inject and dispose of water, brine, fluids and other waste products
or discharge generated in the search for or production of oil, gas, natural
gasoline, casing-head gas, condensate and related hydrocarbons; and to acquire,
drill, convert, operate, lease, sell, assign and/or plug and abandon waste
disposal wells for the injection and disposal of said water, brine, fluids and
other waste products or discharge.
2. To engage in businesses and activities of all kinds without
restriction, at all places within the United States for every purpose and in
every manner including, but without limitation for itself as principal, agent,
joint venturer, partner, lessor, lessees, consignee, wholesaler, jobber,
retailer, factor, broker, distributor, dealer, franchise holder, and in every
other manner and capacity, under its own name and/or under a trade name or
names.
3. To purchase, hold, use, sell, exchange, dispose of,
improve, lease, rent, mortgage and encumber real and personal property of every
kind and character.
4. To borrow money and to make, accept, endorse, execute and
issue notes, bonds, debentures and other obligations, without limit, and to
secure the same; and to endorse, sell, discount, pledge, finance and turn to
account in every manner whatsoever the notes, contracts and obligations of
others without restrictions.
5. To employ, hire and appoint corporations, firms and
individuals in any and all parts of the world to act as agents for the
Corporation in such capacity and on such conditions that may be determined from
time to time by the Board of Directors.
6. To invest and deal with the funds of this Corporation in
any manner and to acquire by purchase or otherwise the stocks, bonds, debentures
and other securities and obligations of any government, state, municipality,
corporation, association or partnership, domestic or foreign, and while owner of
such securities or obligations, to
<PAGE> 2
Exhibit 12-A
Page 2 of 5
exercise all the rights, powers and privileges of ownership, including, among
other things, the right to vote thereon for any and all purposes.
7. To lend money to other persons, partnerships, associations
and corporations secured by a mortgage or other lien on real estate, or pledge
or security interest on personal property, or without security, but only to the
extent permitted a corporation under the laws of this State.
8. To do and perform every other act and thing not
inconsistent with law which may at any time seem to the Board of Directors to be
directly or indirectly appropriate to promote, attain or exercise all of the
objects, purposes and powers set forth in this Agreement and conferred by law.
9. The enumeration in this Agreement of specific objects,
purposes and powers shall not be deemed to limit in any manner the general
powers of the Corporation conferred by the laws of the State of West Virginia.
Each object, purpose and power specified in each clause of this Agreement shall
be construed as a wholly independent and separate object, purposed and power and
shall not be limited by reference to or inference from any other provision of
these Articles of Incorporation.
IV. Provisions for the regulation of the internal affairs of the
Corporation are:
1. The Corporation shall indemnify each member of the Board of
Directors and each officer of the Corporation now or hereafter serving as such,
who was or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
or investigative (including an action by, or in the right of, the Corporation),
by reason of the fact that he is or was a member of the Board of Directors,
officer, or agent of the Corporation or is or was serving at the request of the
Corporation as a member of the Board of Directors, officer or agent of another
corporation, partnership, joint venture, trust or other enterprise.
2. Said indemnification shall be against expenses (including
attorney's fees), judgements, fines and amounts paid in settlement actually and
reasonably incurred by the aforementioned individuals in connection with such
action, suite or proceeding, including any appeal thereof, if they acted in good
faith and in a manner reasonably believed to be in, or not opposed to, the best
interest of the Corporation.
3. No indemnification shall be made in respect to any claim,
issue, or matter as to which such person shall have been adjudged in such
action, suit or proceeding to be liable for gross negligence or willful
misconduct in the performance of his duties to the Corporation, except to the
extent that the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability and in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses that such court shall deem proper. Indemnity with
respect to any criminal action or proceeding will be provided only when
<PAGE> 3
Exhibit 12-A
Page 3 of 5
the member of the Board of Directors or officer had no reasonable cause to
believe his act was unlawful.
4. The amount paid to any member of the Board of Directors,
officer or agent of the Corporation by the way of indemnification shall not
exceed the actual, reasonable and necessary expenses incurred in connection with
the matter involved. The foregoing right of indemnification shall be in addition
to, but not exclusive of, any other right to which such member of the Board of
Directors or officer of the Corporation may otherwise be entitled by law.
V. The amount of the total authorized capital stock of the Corporation
shall be One Hundred Thousand Dollars ($100,000.00) which shall be divided in
One Thousand (1,000) shares of the par value of the One Hundred Dollars
($l00.00) each.
VI. The full name and address of the incorporator and the number of
shares of stock subscribed for by him are as follows:
NAME ADDRESS NO. OF SHARES
---- ------- -------------
Scott E. Wilson P.O. Box 1716 10
Clarksburg, WV 26302-1716
VII. The existence of this Corporation is to be perpetual.
VIII. The address of the initial registered office of the Corporation
is Route 1, Box 84A, Buckhannon, Upshur County, West Virginia, 26201, and the
name of its initial registered agent at such address is Richard R. Hoffman.
IX. The number of directors constituting the initial Board of Directors
of the Corporation is three and the names and addresses of the persons who are
to serve as directors until the first annual meeting of the shareholders or
until their successor or successors are elected and shall qualify are:
NAME ADDRESS
---- -------
John L. Schwager 200 West Main Street
Clarksburg, WV 26301
Richard R. Hoffman Route 1, Box 84A
Buckhannon, WV 26201
Bridget D. Furbee 200 West Main Street
Clarksburg, WV 26301
X. Notice or process shall be sent to Richard R. Hoffman, Route 1, Box
84A, Buckhannon, Upshur County, West Virginia 26201.
<PAGE> 4
Exhibit 12-A
Page 4 of 5
THE UNDERSIGNED, for the purpose of forming a corporation under the
laws of the State of West Virginia, does make and file this ARTICLES OF
INCORPORATION, and has accordingly hereunto set his hand and seal this 15th day
of March, 1993.
/s/ Scott E. Wilson
-------------------
<PAGE> 5
Exhibit 12-A
Page 5 of 5
STATE OF WEST VIRGINIA
COUNTY OF HARRISON
I, Judy M. Osborn, a Notary Public of the said Country of Harrison, do
certify that Scott E.Wilson, whose name is assigned to the writing above,
bearing date the day of March, 1993, has this day acknowledged the same before
me in my said county.
Given under my hand this 15th day of March, 1993.
Judy M. Osborn
--------------
Notary Public
<PAGE> 1
Exhibit 10-B
Page 1 of 12
BYLAWS
OF
HAWG HAULING AND DISPOSAL, INC.
ARTICLE I. OFFICES
The principal offices of the Corporation shall be located at Route 1, Box 84A,
Buckhannon, West Virginia, 26201. The Corporation may have such other offices,
either within or without the State of West Virginia, as the Board of Directors
may designate or as the business of the Corporation may require from time to
time.
ARTICLE II. SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the Shareholders shall be held
on the fourth Friday in April in each year, at the hour of 10:00 A.M., local
time, or at such other time on such other day within such month as shall be
fixed by the Board of Directors, for the purpose of electing Directors and for
the transaction of such other business as may come before the meeting. If the
day fixed for the annual meeting shall be a legal holiday in the State of the
principal office of the Corporation, such meeting shall be held on the next
succeeding business day.
SECTION 2. SPECIAL MEETINGS. Special meetings of the Shareholders, for any
purpose or purposes, may be called by the Chairman of the Board, if any,
President, Secretary, or by the Board of Directors, and shall be called by the
President at the request of the holders of not less than one-tenth (1/10) of all
outstanding shares of the Corporation entitled to vote at the meeting.
SECTION 3. PLACE OF MEETING. The Board of Directors may designate any place,
either within or without the State of West Virginia, as the place of meeting for
any annual meeting or for any special meeting called by the Board of Directors.
If no designation is made, or if a special meeting be otherwise called, the
place of meeting shall be the principal office of the Corporation.
SECTION 4. ACTION BY CONFERENCE TELEPHONE OR ELECTRONIC COMMUNICATION. One or
more Shareholders may participate and vote on any corporation action at a
meeting of the Shareholders by means of conference telephone or similar
electronic communications equipment by means of which all persons participating
in the meeting can hear each other. Whenever a vote may be taken orally during
the electronic conference. Any agreement reached during any such conference
shall have the effect and validity as though the action were duly taken by the
action of the Shareholders at a meeting of Shareholders if the agreement is
reduced to writing and approved by the Shareholders at the next regular meeting
of the Shareholders after the conference.
SECTION 5. NOTICE OF MEETING. Written notice stating the place, day and hour of
the meeting and, in case of a special meeting, the purpose or purposes for which
the meeting
<PAGE> 2
Exhibit 10-B
Page 2 of 12
is called, shall be delivered not less than ten (10) nor more than fifty (50)
days before the date of the meeting, either personally or by mail, by or at the
direction of the Chairman of the Board, if any, President, Secretary or the
officer or other persons calling the meeting, to each Shareholder of record
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, address to the Shareholder
at this address as it appears on the Stock Transfer Books of the Corporation,
with postage thereon prepaid.
SECTION 6. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For the purpose
of determining Shareholders entitled to notice of or vote at any meeting of
shareholders or any adjournment thereof, or shareholders entitled to receive
payment of any dividend, or in order to make a determination of Shareholders for
any other proper purpose, the Board of Directors of the Corporation may provide
that the Stock Transfer Books shall be closed for a stated period but not to
exceed, in any case, fifty (50) days. If the Stock Transfer Books shall be
closed for the purpose of determining Shareholders entitled to notice of or to
vote at a meeting of Shareholders, such books shall be closed for at least ten
(10) days immediately preceding such meeting. In lieu of closing the Stock
Transfer Books, the Board of directors may fix in advance a date as the record
date for any such determination of Shareholders, such date in any case to be not
more than fifty (50) days and, in case of a meeting of Shareholders, not less
than ten (10) days prior to the date on which the particular action, requiring
such determination of Shareholders is to be taken. If the stock Transfer Books
are not closed and no record date is fixed for the determination of Shareholders
entitled to notice of or to vote at a meeting of Shareholders, or Shareholders
entitled to receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the record date
for such determination of Shareholders. When a determination of Shareholders
entitled to vote at any meeting or Shareholders has been made as provided in
this section, such determination shall apply to any adjournment thereof.
SECTION 7. VOTING RECORD. The Officer or agent having charge of the Stock
Transfer Books for shares of the Corporation shall make a complete record of the
Shareholders entitled to vote at each meeting of Shareholders or any adjournment
thereof, arranged in alphabetical order, with the address of and the number of
shares held by each. Such record shall be produced and kept open at the time and
place of the meeting and shall be subject to inspection by any Shareholder
during the whole time of the meeting for the purposes thereof.
SECTION 8. QUORUM. A majority of the outstanding shares of the Corporation
entitled to vote, represented in person or by proxy, shall constitute a quorum
at a meeting of Shareholders. If less than a majority of the outstanding shares
are represented at a meeting, a majority of the shares so represented may
adjourn the meeting from time to time without further notice. At such adjourned
meeting at which might have been transacted at the meeting as originally
noticed. The Shareholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
Shareholders to leave less than a quorum.
<PAGE> 3
Exhibit 10-B
Page 3 of 12
SECTION 9. PROXIES. At all meetings of Shareholders, a shareholder may vote in
person or by proxy executed in writing by the Shareholder or by his duly
authorized attorney-in-fact. 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
eleven (11) months from the date of its execution, unless otherwise provided in
the proxy.
SECTION 10. VOTING OF SHARES. Each outstanding share entitled to vote shall be
entitled to one vote upon each matter submitted to a vote at a meeting of
Shareholders.
SECTION 11. VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the name of
another corporation may be voted by such officer, agent or proxy as the bylaws
of such corporation may prescribe, or, in the absence of such provision, as the
board of directors of such other corporation may determine.
Shares held by an administrator, executor, guardian, committee, curator or
conservator may be voted by him, either in person or by proxy, without a
transfer of such shares into his name. Shares standing in the name of a trustee
may be voted by him, either in person or by proxy, but no trustee shall be
entitled to vote shares held by him without a transfer of such shares into his
name.
Shares standing in the name of a receiver may be voted by such receiver, and
shares held by or under the control of a receiver may be voted by such receiver
without the transfer thereof into his name if authority so to do be contained in
an appropriate Order of the Court by which such receiver was appointed.
A Shareholder whose shares are pledged shall be entitled to vote such shares
until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Neither treasury shares of its own stock held by the Corporation, nor shares
held by another corporation if a majority of the shares entitled to vote for the
election of directors of such other corporation are held by the Corporation,
shall be voted at any meeting or counted in determining the total number of
outstanding shares at any given time for purposes of any meeting.
SECTION 12. WAIVER OF NOTICE. Notice of the time, place or purpose of any
meeting of the Shareholders may be dispensed with as to a Shareholder who shall
attend either in person or by proxy, and as to an absent Shareholder who shall,
in writing, filed with the records of the meeting either before or after the
holding thereof, waive such notice.
SECTION 13. INFORMAL ACTION BY SHAREHOLDERS. Any action required or permitted to
be taken at a meeting of the Shareholders may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all of
the Shareholders entitled to vote with respect to the subject matter thereof.
<PAGE> 4
Exhibit 10-B
Page 4 of 12
ARTICLE III. BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business, property and affairs of the Corporation
shall be managed by its Board of Directors.
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The number of Directors of the
Corporation shall be not less than one (1) nor more than five (5). Each Director
shall hold office until the next annual meeting of Shareholders and until his
successor shall have been elected and qualified or until his prior death,
resignation or removal. Directors need not be residents of the State of West
Virginia, or Shareholders of the Corporation.
SECTION 3. REGULAR MEETINGS. A regular meeting of the Board of Directors shall
be held without other notice than this Bylaw immediately after, and at the same
place as, the annual meeting of Shareholders. The Board of Directors may
provide, by resolution, the time and place, either within or without the State
of West Virginia, for the holding of additional regular meetings without other
notice than such resolution.
SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may be
called by or at the request of the President or any Director. The person or
persons authorized to call special meetings of the Board of Directors may fix
any place, either within or without the State of West Virginia, as the place for
holding any special meeting of the Board of Directors called by them.
SECTION 5. ACTION BY CONFERENCE TELEPHONE OR ELECTRONIC COMMUNICATION. One or
more Directors may participate and vote on any corporate action at a meeting of
the Board of Directors by means of conference telephone or similar electronic
communications equipment by means of which all persons participating in the
meeting can hear each other. Whenever a vote of the Directors is required or
permitted in connection with any corporate action, such vote may be taken orally
during the electronic conference. Any agreement reached during any such
conference shall have like effect and validity as though the action were duly
taken by the action of the Directors at a meeting of the Board of Directors if
the agreement is reduced to writing and approved by the Directors at the next
regular meeting of the Board of Directors after the conference.
SECTION 6. NOTICE: WAIVER OF NOTICE. Notice of any special meeting shall be
given at least three (3) days previously thereto by written notice delivered
personally or mailed to each Director at his business address, or by telegram.
If mailed at least five (5) days prior to the date of meeting, such notice shall
be deemed to be delivered when deposited in the United States mail, so
addressed, with postage thereon prepaid. If notice be given by telegram, such
notice shall be deemed to be delivered when the telegram is delivered to the
telegraph company. Any Director may waive notice of any meeting either before or
after the holding thereof. The attendance of a Director at a meeting shall
constitute a waiver of notice of such meeting, except where a Director attends a
meeting for the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of,
<PAGE> 5
Exhibit 10-B
Page 5 of 12
any regular or special meeting of the Board of Directors need be specified in
the notice of waiver of notice of such meeting, except as otherwise provided by
statute.
SECTION 7. QUORUM. The quorum for the transaction of business at any meeting of
the Board of Directors shall consist of one (1) if the total number of Directors
in office at the time of the meeting is one (1). If the total number of
Directors in office at the time of the meeting is two (2), a quorum shall
consist of both Directors. If the total number of Directors in office at the
time of the meeting is three (3) or more, a quorum shall consist of a majority
of the Directors. If less than a quorum is present at a meeting, a majority of
the Directors present may adjourn the meeting from time to time without further
notice.
SECTION 8. MANNER OF ACTING. The act of the majority of the Directors present at
a meeting at which a quorum is present shall be the act of the Board of
Directors.
SECTION 9. ACTION WITHOUT A MEETING. Any action required or permitted to be
taken by the Board of Directors at a meeting may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all of
the Directors.
SECTION 10. COMMITTEES. The Board of Directors, by resolution adopted by a
majority of the Board of Directors, may designate from among its members an
executive committee and/or one or more other committees each of which shall have
such powers and authority (to the extent permitted by law) as may be provided in
such resolution. Each such committee shall serve at the pleasure of the Board of
Directors.
SECTION 11. DIRECTOR CONFLICTS OF INTEREST. No contract or other transaction
between this Corporation and one or more of its Directors or any other
corporation, firm, association or entity in which one or more of its directors
are Directors or Officers of this Corporation or are financially interested
shall be either void or voidable because of such relationship or interest or
because such Director or Directors are present at the meeting of the Board of
Directors or a committee thereof which authorizes, approves or ratifies such
contract or transaction or because his or their votes are counted for such
purpose, if:
(a) The fact of such relationship or interest is disclosed or
known to the Board of Directors or committee which authorizes, approves or
ratifies such contract or transaction by a vote or consent sufficient for the
purpose without counting the votes or consents of such interested Directors; or
(b) The fact of such relationship or interest is disclosed or
known to the Shareholders entitled to vote and they authorize, approve or ratify
such contract or transaction by vote or written consent; or
(c) The contract or transaction is fair and reasonable to the
Corporation.
<PAGE> 6
Exhibit 10-B
Page 6 of 12
Common or interested Directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or a committee thereof which
authorizes, approves or ratifies such contract or transaction.
On any question involving the authorization, approval or ratification of any
such contract or transaction, the names of those Directors or Shareholders, as
the case may be, voting each way shall be entered on the record of the
proceedings.
SECTION 12. REMOVAL. Any Director or Directors may be removed, either with or
without cause at any time, by the vote of the Shareholders holding a majority of
the shares then issued and outstanding and who were entitled to vote for the
election of the Director or Directors sought to be removed, at any special
meeting of the Shareholders called for that purpose.
SECTION 13. RESIGNATION. Any Director may resign at any time by giving written
notice to the Board of Directors, the President or the Secretary. Unless
otherwise specified in such written notice, such resignation shall take effect
upon receipt thereof by the Board of Directors or such Officer, and the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 14. VACANCIES. Any vacancy occurring in the Board of Directors may be
filled by the affirmative vote of a majority of the remaining Directors, even
though less than a quorum of the Board of Directors. A Director elected to fill
a vacancy shall be elected for the unexpired term of his predecessor in office.
Any Directorship to be filled by reason of an increase in the number of
Directors may be filled by election by the Board of Directors for a term of
office continuing only until the next election of Directors by the Shareholders.
SECTION 15. COMPENSATION. By resolution of the Board of Directors, each Director
may be paid his expenses, if any, of attendance at each meeting of the Board of
Directors, or committee thereof, and may be paid a stated salary as Director or
a fixed sum for attendance at each meeting of the Board of Directors or
committee thereof or both. No such payment shall preclude any Director from
serving the Corporation in any other capacity and receiving compensation
therefor.
SECTION 16. PRESUMPTION OF ASSENT. A Director of the Corporation who is present
at a meeting of the Board of Directors at which action on any corporate matter
is taken shall be presumed to have assented to the action taken unless his
dissent shall be entered in the minutes of the meeting or unless he shall file
his written dissent to such action with the person acting as the Secretary of
the meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a Director
who voted in favor of such action.
<PAGE> 7
Exhibit 10-B
Page 7 of 12
ARTICLE IV. OFFICERS
SECTION 1. NUMBER. The Officers of the Corporation shall be a President, one or
more Vice Presidents (the number thereof to be determined by the Board of
Directors), a Secretary and a Treasurer, each of whom shall be elected by the
Board of Directors. A Chairman of the Board of Directors and such other Officers
and Assistant Officers as may be deemed necessary may be elected or appointed by
the Board of Directors. Any two or more offices may be held by the same person,
except the offices of President and Secretary. The President and the Chairman of
the Board, if any, shall be elected from the membership of the Board of
directors, but the other Officers need not be Directors.
SECTION 2. ELECTION AND TERM OF OFFICE. The Officers of the Corporation to be
elected by the Board of Directors shall be elected annually by the Board of
Directors at the first meeting of the Board of Directors held after each annual
meeting of the Shareholders. If the election of Officers shall not be held at
such meeting, such election shall be held as soon thereafter as conveniently may
be. Each Officer shall hold office until his successor shall have been duly
elected and shall have qualified or until his prior death, resignation or
removal.
SECTION 3. REMOVAL. Any Officer may be removed, with or without cause, at any
time, by the vote of majority of the Board of Directors.
SECTION 4. RESIGNATION. Any Officer may resign at any time by giving written
notice to the Board of Directors, the President or the Secretary. Unless
otherwise specified in such written notice, such resignation shall take effect
upon receipt thereof by the Board of Directors or such Officer, and the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 5. VACANCIES. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise, may be filled by the Board of Directors
for the unexpired portion of the term.
SECTION 6. CHAIRMAN OF THE BOARD OF THE BOARD AND PRESIDENT. The Chairman of the
Board or the President as the Board of Director may from time to time determine,
shall be the principal executive officer of the Corporation. The principal
executive officer of the Corporation shall in general supervise and control all
of the business and affairs of the Corporation, subject to the control of the
Board of Directors. He shall, when present, preside at all meetings of the
Shareholders. Whether the Chairman of the Board or the President be designated
as the principal executive officer or by his authority may, exercise any of the
powers of the principal executive officer. The Chairman of the Board or the
President may sign deeds, mortgages, bonds, contracts, or other instruments
which the Board of Directors has authorized to be executed, except in cases
where the signing and executing thereof shall be expressly delegated by the
Board or by these Bylaws to some other Office or agent of the Corporation, or
shall be required by law to be otherwise signed or executed. The Chairman of the
Board and the President shall each in general,
<PAGE> 8
Exhibit 10-B
Page 8 of 12
perform all duties incident to their respective offices and shall perform such
other duties as may be prescribed by the Board of Directors from time to time.
SECTION 7. THE VICE PRESIDENT. In the absence of the Chairman of the Board and
President or in the event of their death, inability or refusal to act, the Vice
President (or in event there may be more than one Vice Presidents in the order
designated at the time of their election, or in the absence of any designation,
then in the order of their election) shall perform the duties of the Chairman of
the Board and President, and when so action, shall have all the powers of and
the subject to all the restrictions upon the Chairman of the Board and
President. Any Vice President may sign, with the Secretary or an Assistant
Secretary, certificates for shares of the Corporation; and shall perform such
other duties as from time to time may be assigned to him by the principal
executive officer of the Corporation, the Bylaws or the Board of Directors.
SECTION 8. THE SECRETARY. The Secretary shall: (a) keep the minutes of the
proceedings of the Shareholders and of the Board of Directors in one or more
books provided for that purposes; (b) see that all notices are duly given in
accordance with the provisions of these Bylaws or as required by law; (c) be
custodian of the corporate records and the seal of the Corporation and see that
the seal of the Corporation is affixed to all documents, the execution of which
on behalf of the Corporation under its seal is duly authorized; (d) keep a
register of the post office address of each Shareholder which shall be furnished
to the Secretary by such shareholder; (e) sign with the President, or a Vice
President, certificates for shares of the Corporation, the issuance of which
shall have been authorized by resolution of the Board of Directors; (f) have
general charge of the Stock Transfer Books of the Corporation; and (g) in
general perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the principal executive
officer of the Corporation, the Bylaws or by the Board of Directors.
SECTION 9. THE TREASURER. The Treasurer shall: (a) have charge and custody of
and be responsible for all funds and securities of the Corporation; (b) receive
and give receipts for moneys due and payable to the Corporation from any source
whatsoever, and deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of article V of these Bylaws; and (c) in general perform all
of the duties incident to the office of Treasurer and such other duties as from
time to time may be assigned to him by the principal executive officer of the
Corporation, the Bylaws or by the Board of Directors. If required by the Board
of Directors, the Treasurer shall give bond for the faithful discharge of his
duties in such sum and with such surety or sureties as the Board of Directors
shall determine.
SECTION 10. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The Assistant
Secretaries when authorized by the Board of Directors, may sign with the
President or a Vice President certificates for shares of the Corporation the
issuance of which shall have been authorized by a resolution of the Board of
Directors. The Assistant Treasurers shall respectively, if required by the Board
of directors, give bonds for the faithful discharge of their duties in such sums
and with such sureties as the Board of Directors shall determine.
<PAGE> 9
Exhibit 10-B
Page 9 of 12
The Assistant Secretaries and Assistant Treasurers, in general, shall perform
such duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the principal executive officer of the Corporation, the
Bylaws or by the Board of Directors.
SECTION 11. OFFICERS' SALARIES. The salaries of the Officers shall be fixed from
time to time by the Board of Directors and no Officer shall be prevented from
receiving such salary by reason of the fact that he is also a Director of the
Corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The Board of Directors may authorize any Officer or
Officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the Corporation and
no evidences of indebtedness shall be issued in its name unless authorized by a
resolution of the Board of Directors. Such authority may be general or confined
to specific instances. The Board of Directors may encumber and mortgage real
estate and pledge, encumber and mortgage stocks, bonds, and other securities and
other personal property of all types, tangible and intangible, and convey any
such property in trust to secure the payment of corporate obligations.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts, or other orders for the
payment of money notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by such Officer or Officers, agent or agents of
the Corporation and in such manner as shall from time to time be determined by
resolution of the Board of Directors.
SECTION 4. DEPOSITS. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board of Directors may select.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR SHARES. Certificates representing shares of the
Corporation shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the President or a Vice
President and by the Secretary or an Assistant Secretary and sealed with the
Corporate Seal or a facsimile thereof. The signatures of such Officers upon a
certificate may be facsimiles if the certificate is manually signed on behalf of
the transfer agent or a registrar, other than the Corporation itself or one of
its employees. Each certificate for shares shall be consecutively numbered or
otherwise identified. The name and address of the person to whom the shares
represented thereby are issued, with the number of shares and date of issue,
shall be entered on the stock Transfer Books of the Corporation. All
certificates surrendered to the Corporation for
<PAGE> 10
Exhibit 10-B
Page 10 of 12
transfer shall be cancelled and no new certificates shall be issued until the
former certificate for a like number shares shall have been surrendered and
cancelled, except that in case of a lost, destroyed or mutilated certificate, a
new one may be issued therefore upon such terms and indemnity to the Corporation
as the Board of Directors may prescribe.
SECTION 2. TRANSFER OF SHARES. Transfer of shares of the Corporation shall be
made only on the Stock Transfer Books of the Corporation by the holder of record
thereof or by his legal representative, who shall furnish proper evidence of
authority to transfer, or by his attorney thereunto authorized by power attorney
duly executed and filed with the Secretary of the Corporation, and on surrender
for cancellation of the certificate for such shares. The person in whose name
shares stand on the books of the Corporation shall be deemed by the Corporation
to be the owner for all purposes.
SECTION 3. ISSUANCE AND SALE OF SHARES. The Board of Directors may from time to
time issue, or provide for the issuance of the authorized shares of the
Corporation for money at not less than the par value thereof. Shares of the
Corporation shall not be sold at less than par value except when, and to the
extent such sale is authorized by a resolution, specifying the number, or
maximum number of shares to be sold, and the sale price, minimum sale price,
passed at any meeting of the Shareholders by a vote of three-fourths (3/4) of
all of the shares entitled to vote.
SECTION 4. ISSUANCE OF SHARES FOR PROPERTY, ETC. The Board of Directors may also
from time to time issue, or provide for the issuance of, the authorized shares
of the Corporation in payment wholly or partly for cash, labor done, real and/or
personal property, or for the use thereof, at such price for any such labor or
property or the use thereof, as may be fixed by agreement between the owner of
the property and the Board of Directors, but before doing so the Board of
Directors shall by resolution state its opinion of the fair value of the labor
done or property received for which such shares are to be issues.
SECTION 5. PROCEEDS OF SHARES. The books of the Corporation shall be so kept as
to show at all times what money or other consideration was received by the
Corporation for the shares issued by it, and the number and par value of all
shares issued.
SECTION 6. LOST CERTIFICATES. Any person claiming a certificate of shares to be
lost or destroyed shall make an affidavit or affirmation of that fact, and if
requested to do so by the Board of Directors shall advertise such fact in such
manner as the Board of Directors may require, and shall give the Corporation a
bond of indemnity in such sum as the Board of Directors may require, and shall
give the Corporation a bond of indemnity in such sum as the Board of Directors
may direct, but not less than double the value of shares represented by such
certificate, in form satisfactory to the Board of Directors and with or without
sureties as the Board of Directors may prescribe; whereupon the President and
the Secretary may cause to be issued a new certificate of the same tenor and for
the same number of shares as the one alleged to have been lost or destroyed, but
always subject to the approval of the Board of Directors.
<PAGE> 11
Exhibit 10-B
Page 11 of 12
SECTION 7. STOCK TRANSFER BOOKS. The Stock Transfer Books of the Corporation
shall be kept in the principal office of the Corporation and shares shall be
transferred under such regulations as may be prescribed by the Board of
Directors.
ARTICLE VII. FISCAL YEAR
The fiscal year of the Corporation may be fixed and may be changed from time to
time by resolution of the Board of Directors. Until the Board of Directors has
acted to fix such fiscal year, the fiscal year of the Corporation shall begin on
the first day of January and end on the thirty-first day of December in each
year.
ARTICLE VIII. DIVIDENDS
The Board of Directors may, from time to time, declare and the Corporation may
pay dividends on its outstanding shares in the manner and upon the terms and
conditions provided by law and its Articles of Incorporation.
ARTICLE IX. CORPORATE SEAL
The Board of Directors shall provide a corporate seal which shall be circular in
form and shall have inscribed thereon the name of the Corporation, the State of
incorporation and the words "Corporate Seal."
ARTICLE X. VOTING SHARES OF OTHER CORPORATIONS
Unless otherwise ordered by the Board of Directors, shares in other corporations
held by this Corporation may be voted by the Chairman of the Board or the
President of this Corporation.
ARTICLE XI. RELIANCE ON RECORDS
Each Officer and Director shall in the performance of his duties be fully
protected in relying in good faith upon the books of account and other records
of this Corporation, or upon reports made to the Corporation by any of its
Officers, or by any independent certified public accountant, or by an appraiser
selected with reasonable care by the Board of Directors.
ARTICLE XII. AMENDMENT OF BYLAWS
SECTION 1. BY THE SHAREHOLDERS. The Bylaws may be amended, altered, supplemented
or repealed at any annual or special meeting of the Shareholders by a majority
vote of all of the shares entitled to vote.
<PAGE> 12
Exhibit 10-B
Page 12 of 12
SECTION 2. BY THE DIRECTORS. The Board of Directors, by a majority vote, may
amend, alter, supplement and repeal the Bylaws. Any Bylaws or amendments to the
Bylaws made by the Board of Directors may be amended, altered, supplemented or
repealed by the Board of Directors or by the Shareholders.
<PAGE> 1
Exhibit 13-A
Page 1 of 1
CERTIFICATE OF FORMATION OF ENERGYNET, L.L.C.
This Certificate of Formation is being executed as of June 30, 1997,
for the purpose of forming a limited liability company pursuant to the Delaware
Limited Liability Company Act, 6 Del. C. 18-101,et.seq.
The undersigned, being duly authorized to execute and file this
Certificate of Formation, hereby certifies as follows:
A. Name: The name of the limited liability company is EnergyNet, L.L.C.
(The "Company").
B. Registered Office and Registered Agent. The Company's registered
office in the State of Delaware is located at 1209 Orange Street, Wilmington,
Delaware 19801. The registered agent of the company for service of process at
such address is The Corporation Trust Company.
C. Dissolution. The latest date on which the Company is to dissolve is
December 31, 2048.
D. L.L.C. Management Committee. The Company has an L.L.C. Management
Committee and the business and affairs of the Company shall be managed by or
under the direction of the L.L.C. Management Committee. Unless otherwise
specified by the L.L.C. Management Committee, no member of the Company, in such
capacity or by reason of his, her or its status, as such, shall have any right
or authority to act for or to bind the Company.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Formation as of the day and year first above written.
/S/ Mark A. Cleaves
-------------------
Organizer
ENERGYNET, L.L.C.
<PAGE> 1
Exhibit 11-B
Page 1 of 11
INTRODUCTION
A. Agreement. These Bylaws shall be subject to the Limited Liability
Company Agreement (the "Agreement"), of ENERGY NET, L.L.C., a Delaware limited
liability company (the "Company") in effect as from time to time. In the event
of any inconsistency between the terms hereof and the terms of the Agreement,
the terms of the Agreement shall control.
B. Definitions. Capitalized terms used herein and not herein defined are
used as defined in the Agreement.
ARTICLE I
MEETINGS OF MEMBERS
Section 1. Place of Meetings and Meetings by Telephone. Meetings of
Members shall be held at any place designated by the Managers. In the absence of
any such designation, meetings of Members shall be held at the principal place
of business of the Company. Any meeting of the Members may be held by conference
telephone or similar communications equipment so long as all Members
participating in the meeting can hear one another, and all Members participating
by telephone or similar communications equipment shall be deemed to be present
in person at the meeting.
Section 2. Call of Meetings. Meetings of the Members may be called at any
time by the Managers or by the Chairmen or the President for the purpose of
taking action upon any matter requiring the vote or authority of the Members as
provided herein or in the Agreement or upon any other matter as to which such
vote or authority is deemed by the Managers or the Chairman or the President to
be necessary or desirable. Meetings of the Members shall be called promptly by
the Managers upon the written request of any Member.
Section 3. Notice of Meetings of Members. All notices of meetings of
Members shall be sent or otherwise given in accordance with Section 4 of this
Article I not less than five (5) nor more than sixty (60) days before the date
of the meeting. The notice shall specify (i) the place, date, and hour of the
meeting, and (ii) the general nature of the business to be transacted.
<PAGE> 2
Exhibit 11-B
Page 2 of 11
Section 4. Manner of Giving Notice. Notice of any meeting of Members shall
be given personally to each Member or sent by first class mail, by telegram or
telecopy (or similar electronic means), or by a nationally recognized overnight
courier, charges prepaid, addressed to the Member at the address of that Member
appearing on the books of the Company or given by the Member to the Company for
the purpose of notice. Notice shall be deemed to have been given at the time
when delivered personally, two (2) days following deposit in the mail, or one
(1) day following deposit with a nationally recognized overnight courier, or
when sent by telegram or telecopy (or similar electronic means).
Section 5. Adjourned Meeting; Notice. Any meeting of Members, whether or
not a quorum is present, may be adjourned from time to time by the vote of the
majority of the Percentage Interests represented at that meeting, either in
person or by proxy. When any meeting of Members is adjourned to another time or
place, notice need not be given of the adjourned meeting, unless a new record
date of the adjourned meeting is fixed or unless the adjournment is for more
than sixty (60) days from the date set for the original meeting, in which case
the Managers shall set a new record date and shall give notice in accordance
with the provisions of Sections 3 and 4 of this Article I. At any adjourned
meeting, the Company may transact any business that might have been transacted
at the original meeting.
Section 6. Quorum; Voting. At any meeting of the Members, a Majority in
Interest of the Members, present in person or by proxy, shall constitute a
quorum for all purposes, unless or except to the extent that the presence of
Members holding a higher aggregate Percentage Interest is required by the
Agreement or applicable law. Except as otherwise required by the Agreement,
these Bylaws, or applicable law, all matters shall be determined by a majority
in Interest of the Members.
Section 7. Waiver of Notice by Consent of Absent Members. The transactions
of a meeting of Members, however called and noticed and wherever held, shall be
as valid as though taken at a meeting duly held after regular call and notice if
a quorum is present either in person or by proxy and if either before or after
the meeting, each person entitled to vote who was not present in person or by
proxy signs a written waiver of notice or a consent to a holding of the meeting
or an approval of the minutes. The waiver of notice or consent need not specify
either the business to be transacted or the purpose of any meeting of Members.
Attendance by a person at a meeting shall also constitute a waiver of notice of
that meeting, except when the person objects at the beginning of the meeting to
the transaction of any business because the meeting was not lawfully called or
convened and except that attendance at a meeting is not a waiver of any right to
object to the consideration of matters not included in the notice of the meeting
if that objection is expressly made at the beginning of the meeting.
<PAGE> 3
Exhibit 11-B
Page 3 of 11
Section 8. Member Action by Written Consent Without a Meeting. Except as
provided in the Agreement, any action that may be taken at any meeting of
Members may be taken without a meeting and without prior notice if a consent in
writing setting forth the action so taken is signed by a majority in Interest of
the Members (or Members holding such higher aggregate Percentage Interest as is
required to authorize or take such action under the terms of the Agreement,
these Bylaws or applicable law). Any such written consent may be executed and
given by telecopy or similar electronic means. Such consents shall be filed with
the Secretary of the Company and shall be maintained in the Company's records.
Section 9. Record Date for Member Notice, Voting, and Consents.
(a) For purposes of determining the Members entitled to vote or act
at any meeting or adjournment thereof, the Managers may fix in
advance a record date which shall not be greater than sixty (60)
days nor fewer than five (5) days before the date of any such
meeting. If the Managers do not so fix a record date, the record
date for determining Members entitled to notice of or to vote at
a meeting of Members shall be at the close of business on the
business day immediately preceding the day on which notice is
given, or if notice is waived, at the close of business on the
business day next preceding the date on which the meeting is held.
(b) The record date for determining Members entitled to give consent
to action in writing without a meeting, (i) when no prior action
of the Managers has been taken, shall be the first day on which
the first written consent is given or (ii) when prior action of
the Managers has been taken, shall be (x) such date as determined
for that purpose by the Managers, which record date shall not
precede the date upon which the resolution fixing it is adopted
by the Managers and shall not be more than 20 days after the date
of such resolution or (y) if no record date is fixed by the
Managers the record date shall be the close of business on the
date on which the Managers adopt the resolution relating to that
action.
(c) Only Members of record on the record date as herein determined shall
have any right to vote or to act at any meeting or give consent to
any action relating to such record date, provided that no Member who
transfers all or part of such Member's Interest after a record date
(and no transferee of such Interest) shall have the right to vote or
act with respect to the transferred Interest as regards the matter
for which the record date was set.
<PAGE> 4
Exhibit 11-B
Page 4 of 11
Section 10. Proxies. Every Member entitled to vote or act on any matter at
a meeting of Members shall have the right to do so either in person or by proxy,
provided that an instrument authorizing such a proxy to act is executed by the
Member in writing and dated not more than eleven (11) months before the meeting,
unless the instrument specifically provides for a longer period. A proxy shall
be deemed executed by a Member if the Member's name is placed on the proxy
(whether by manual signature, typewriting, telegraphic transmission, or
otherwise) by the Member or the Member's attorney-in-fact. A valid proxy that
does not state that it is irrevocable shall continue in full force and effect
unless (i) revoked by the person executing it before the vote pursuant to that
proxy by a writing delivered to the Company stating that the proxy is revoked,
by a subsequent proxy executed by, or attendance at the meeting and voting in
person by, the person executing that proxy or (ii) written notice of the death
or incapacity of the maker of that proxy is received by the Company before the
vote pursuant to that proxy is counted. A proxy purporting to be executed by or
on behalf of a Member shall be deemed valid unless challenged at or prior to its
exercise and the burden of proving invalidity shall rest on the challenger.
ARTICLE II
MANAGERS AND MEETINGS OF THE L.L.C. MANAGEMENT COMMITTEE
Section 1. Powers. The powers of the Managers shall be as provided in the
Agreement.
Section 2. Number of Managers. The number of Managers shall be as provided
in the Agreement.
Section 3. Chairman. The L.L.C. Management Committee shall have a Chairman
(being one of the Managers) who shall be appointed by the mutual agreement of
CNSC and TSG. The Chairman shall serve a one-year term. After the initial
one-year term, successor Chairmen shall be elected as provided in Section 6.1(f)
of the Agreement. The Chairman shall if present preside at meetings of the
Managers and shall exercise and perform such other powers and duties as may from
time to time be assigned to him or her by the Managers or prescribed by the
Agreement or these Bylaws.
Section 4. Vacancies. Vacancies in the authorized number of Managers may
be filled as provided in the Agreement.
Section 5. Place of Meetings and Meetings by Telephone. All meetings of
the L.L.C. Management Committee may be held at any place that has been
designated from time
<PAGE> 5
Exhibit 11-B
Page 5 of 11
to time by resolution of the Managers. In the absence of such a designation,
regular meetings shall be held at the principal place of business of the
Company. Any meeting, regular or special, may be held by conference telephone or
similar communications equipment so long as all Managers participating in the
meeting can hear one another, and all Managers participating by telephone or
similar communications equipment shall be deemed to be present in person at the
meeting.
Section 6. Regular Meetings. Regular meetings of the L.L.C. Management
Committee shall be held at least four times per year at such times and at such
places as shall be fixed by unanimous approval of the Managers. Such regular
meetings may be held without notice.
Section 7. Special Meetings. Special meetings of the L.L.C. Management
Committee for any purpose or purposes may be called at any time by not less than
two (2) Managers including, at least, one Manager appointed by Columbia Network
Services Corporation ("CNSC") and one Manager appointed by The SABRE Group, Inc.
("TSG") . Notice of the time and place of a special meeting shall be delivered
personally or by telephone to each Manager and sent by first-class mail, by
telegram or telecopy (or similar electronic means), or by nationally recognized
overnight courier, charges prepaid, addressed to each Manager at that Manager's
address as it is shown on the records of the Company. In case the notice is
mailed, it shall be deposited in the U. S. mail at least five (5) calendar days
before the time of the holding of the meeting. In case the notice is delivered
personally or by telephone or by telegram, telecopy (or similar electronic
means), or overnight courier, it shall be given at least two (2) calendar days
before the time of the holding of the meeting. Any oral notice given personally
or by telephone may be communicated either to the Manager or to a person at the
office of the Manager who the person giving notice has reason to believe will
promptly communicate it to the Manager. The notice need not specify the purpose
of the meeting.
Section 8. Quorum. A majority of the authorized number of Voting Managers
(but in any event, not less than two) shall constitute a quorum for the
transaction of business, except to adjourn as provided in Section 10 of this
Article II. Every act or decision done or made by the affirmative vote of at
least two of the Voting Managers present at a meeting duly held at which a
quorum is present shall be regarded as the act of the Managers, except to the
extent that the vote of a higher number of Managers is required by the
Agreement, these Bylaws, or applicable law.
Section 9. Waiver of Notice. Notice of any meeting need not be given to
any Manager who either before or after the meeting signs a written waiver of
notice, a consent
<PAGE> 6
Exhibit 11-B
Page 6 of 11
to holding the meeting, or an approval of the minutes. The waiver of notice or
consent need not specify the purpose of the meeting. All such waivers, consents,
and approvals shall be filed with the records of the Company or made a part of
the minutes of the meeting. Notice of a meeting shall also be deemed given to
any Manager who attends the meeting without protesting before or at its
commencement the lack of notice to that Manager.
Section 10. Adjournment. A majority of the Managers present, whether or
not constituting a quorum, may adjourn any meeting to another time and place.
Notice of the time and place of holding an adjourned meeting need not be given
unless the meeting is adjourned for more than forty-eight (48) hours, in which
case notice of time and place shall be given before the time of the adjourned
meeting in the manner specified in Section 7 of this Article II.
Section 11. Action Without a Meeting. Any action to be taken by the
Managers at a meeting may be taken without such meeting by the written consent
of a majority (but not less than two) of the Voting Managers then in office (or
such higher number of Voting Managers as is required to authorize or take such
action under the terms of the Agreement, these Bylaws, or applicable law). Any
such written consent may be executed and given by telecopy or similar electronic
means. Such written consent shall be filed with the minutes of the proceedings
of the Managers. If any action is so taken by the Managers by the written
consent of less than all of the Voting Managers, prompt notice of the taking of
such action shall be furnished to each Manager who did not execute such written
consent, provided that the effectiveness of such action shall not be impaired by
any delay or failure to furnish such notice.
Section 12. Delegation of Power. Any Manager may, by power of attorney,
delegate his or her power for a period not exceeding six (6) months at any one
time to any other Manager or Managers; provided that in no case shall fewer than
two (2) Managers personally exercise the powers granted to the Managers, except
as otherwise provided by resolution of the Managers. A Manager represented by
another Manager pursuant to such power of attorney shall be deemed to be present
for purposes of establishing a quorum and satisfying any voting requirements.
The Managers may, by resolution, delegate any or all of their powers and duties
granted hereunder or under the Agreement to one or more committees of the
Managers, each consisting of one or more Managers, or to one or more officers,
employees, or agents, including without limitation Members, and to the extent
any such powers or duties are so delegated, action by the delegate or delegates
shall be deemed for all purposes to be action by the Managers. All such
delegates shall serve at the pleasure of the Managers. To the extent applicable,
notice shall be given to, and action may be taken by, any delegate of the
Managers as herein provided with respect to notice to, and action by, the
Managers.
<PAGE> 7
Exhibit 11-B
Page 7 of 11
ARTICLE III
OFFICERS
Section 1. Officers. The officers of the Company shall be a President, a
Secretary, and a Treasurer. The Company may also have, at the discretion of the
Managers, such other officers as may be appointed in accordance with the
provisions of Section 3 of this Article III. Any number of offices may be held
by the same person. The President shall be a Manager and any other officer may
but need not be a Manager.
Section 2. Election of Officers. Subject to the provisions of the
Agreement applicable to initial appointment and terms of officers, the officers
of the Company, except as may be appointed in accordance with the provisions of
Section 3 or 5 of this Article III, shall be chosen by the Managers, and each
shall serve at the pleasure of the Managers, subject to the rights, if any, of
an officer under any contract of employment.
Section 3. Subordinate Officers. The Managers may appoint and may empower
the President to appoint such other officers as the business of the Company may
require, each of whom shall hold office for such period, have such authority and
perform such duties as are provided in these Bylaws or as the Managers (or, to
the extent the power to prescribe authorities and duties of subordinate officers
is delegated to him or her, the President) may from time to time determine.
Section 4. Removal and Resignation of Officers. Subject to the rights, if
any, of an officer under any contract of employment, any officer may be removed,
with or without cause, by the Managers at any regular or special meeting of the
Managers or by such officer, if any, upon whom such power of removal may be
conferred by the Managers. Any officer may resign at any time by giving written
notice to the Company. Any resignation shall take effect at the date of the
receipt of that notice or at any later time specified in that notice; and unless
otherwise specified in that notice, the acceptance of the resignation shall not
be necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the Company under any contract to which the officer is a
party.
Section 5. Vacancies in Offices. A vacancy in any office because of death,
resignation, removal, disqualification, or other cause shall be filled in the
manner prescribed in these Bylaws for regular appointment to that office. The
President may make temporary appointments to a vacant office pending action by
the Managers.
<PAGE> 8
Exhibit 11-B
Page 8 of 11
Section 6. President. The President shall be the chief operating officer
of the Company and shall, subject to the control of the Managers, have general
supervision, direction, and control of the business and the officers of the
Company. He or she shall preside at all meetings of the Members and, in the
absence of the Chairman, at all meetings of the Managers. He or she shall have
the general powers and duties of management as may be prescribed by the
Managers, the Agreement, or these Bylaws.
Section 7. Vice Presidents. In the absence or disability of the President,
the Vice Presidents, in order of their rank as fixed by the Managers, shall
perform all the duties of the President and when so acting shall have all powers
of and be subject to all the restrictions upon the President. The Vice
Presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the Managers or the
President or by these Bylaws.
Section 8. Secretary. The Secretary shall keep or cause to be kept at the
principal place of business of the Company or such other place as the Managers
may direct a book of minutes of all meetings and actions of Managers,
committees, or other delegates of Managers and Members with the time and place
of holding, whether regular or special, and if special, how authorized, the
notice given, the names of those present at Managers' meetings or committee or
other delegate meetings, the Percentage Interest present or represented at
meetings of Members, and the proceedings. The Secretary shall keep or cause to
be kept at the principal place of business of the Company, a register or a
duplicate register showing the names of all Members and their addresses, the
number and classes of Percentage Interest held by each, the number and date of
certificates issued for the same, if any, and the number and date of
cancellation of every certificate surrendered for cancellation. The Secretary
shall give or cause to be given notice of all meetings of the Members and of the
Managers (or committees or other delegates thereof) required to be given by
these Bylaws of by applicable law and shall have such other powers and perform
such other duties as may be prescribed by the Managers or the President or by
these Bylaws.
Section 9. Treasurer. The Treasurer shall keep and maintain or cause to be
kept and maintained adequate and correct books and records of accounts of the
properties and business transactions of the Company, including accounts of the
assets, liabilities, receipts, disbursements, gains, losses, and capital and
retained earnings of the Company. The books of account shall at all reasonable
times be open to inspection by any Manager or Member. The Treasurer shall
deposit all monies and other valuables in the name and to the credit of the
Company with such depositaries as may be designated by the Managers. He or she
shall disburse the funds of the Company as may be ordered by the Managers, shall
render to the President, the Chairman, and Managers, whenever they request it,
an account of all of his or
<PAGE> 9
Exhibit 11-B
Page 9 of 11
her transactions as chief financial officer and of the financial condition of
the Company, and shall have other powers and perform such other duties as may be
prescribed by the Managers or the President or the Chairman of these Bylaws.
ARTICLE IV
RECORDS AND REPORTS
Section 1. General. The Company shall maintain at its principal place of
business a record of its Members, giving the names and addresses of all Members
and the Percentage Interest held by each Member. Subject to such reasonable
standards (including standards governing what information and documents are to
be furnished and at whose expense) as may be established by the Managers from
time to time, each member has the right to obtain from the Company from time to
time upon reasonable demand for any purpose reasonably related to the Member's
interest as a Member of the Company a record of the Company's Members.
Section 2. Maintenance and Inspection of Bylaws. The Company shall keep at
its principal place of business the original or a copy of these Bylaws as
amended to date, which shall be open to inspection by the Members at all
reasonable times during office hours.
Section 3. Maintenance and Inspection of Other Records. The accounting
books and records, minutes of proceedings of the members and the Managers and
any committees or delegates of the Managers, and all other information
pertaining to the Company that is required to be made available to the Members
under the Delaware Act shall be kept at such place or places designated by the
Managers or in the absence of such designation, at the principal place of
business of the Company. The minutes shall be kept in written form and the
accounting books and records and other information shall be kept either in
written form or in any other form capable of being converted into written form.
The books of account and records of the Company shall be maintained in
accordance with generally accepted accounting principles consistently applied
during the term of the Company, wherein all transactions, matters, and things
relating to the business and properties of the Company shall be currently
entered. Subject to such reasonable standards (including standards governing
what information and documents are to be furnished and at whose expense) as may
be established by the Managers from time to time, minutes, accounting books and
records, and other information shall be open to inspection upon the written
demand of any Member at any reasonable time during usual business hours for a
purpose reasonably related to the Member's interests as a Member. Any such
inspection may be made in person or by an agent or attorney and shall include
the right to copy and make extracts. Notwithstanding the foregoing, the Managers
shall have the right to keep confidential from Members for such
<PAGE> 10
Exhibit 11-B
Page 10 of 11
period of time as the Managers deem reasonable, any information which the
Managers reasonably believe to be in the nature of trade secrets or other
information the disclosure of which the Managers in good faith believe is not in
the best interests of the Company or could damage the Company or its business or
which the Company is required by law or by agreement with a third party to keep
confidential.
Section 4. Inspection by Managers. Every Manager shall have the right at
any reasonable time to inspect all books, records, and documents of every kind
and the physical properties of the Company for a purpose reasonably related to
his or her position as Manager. This inspection by a Manager may be made in
person or by an agent or attorney and the right of inspection includes the right
to copy and make extracts of documents.
ARTICLE V
GENERAL MATTERS
Section 1. Checks, Drafts, Evidence of Indebtedness. All checks, drafts,
or other orders for payment of money, notes, or other evidence of indebtedness
issued in the name of or payable to the Company shall be signed or endorsed in
such manner and by such person or persons as shall be designated from time to
time in accordance with the resolution of the Managers.
Section 2. Contracts and Instruments. The Managers, except as otherwise
provided in the Agreement or these Bylaws, may authorize any Manager(s),
officer(s), or agent(s) to enter into any contract or execute any instrument in
the name of and on behalf of the Company and this authority may be general or
confined to specific instances; and unless so authorized or ratified by the
Managers or within the agency power to an officer (or otherwise specified in the
Agreement or these Bylaws), no officer, agent, or employee shall have any power
or authority to bind the Company by any contract or engagement or to pledge its
credit or to render it liable for any purpose or for any amount.
Section 3. Representation of Shares of Other Entities Held by the Company.
The President or any Vice President or any other person authorized by the
Managers or by any of the foregoing designated officers, is authorized to vote
or represent on behalf of the Company any and all shares of any corporation,
partnership, trust, or other entity, foreign or domestic, standing in the name
of the Company. The authority granted may be exercised in person or by a proxy
duly executed by such designated person.
<PAGE> 11
Exhibit 11-B
Page 11 of 11
Section 4. Seal. The Managers may approve and adopt an official Company
seal, which may be altered by them at any time. Unless otherwise required by the
Managers, any seal so adopted shall not be necessary to be placed on, and its
absence shall not impair the validity of, any document, instrument, or other
paper executed and delivered by or on behalf of the Company.
ARTICLE VI
AMENDMENTS AND INCORPORATION BY REFERENCE
Section 1. Amendment. These Bylaws may be restated, amended, supplemented,
or repealed only by unanimous vote of the Members.
Section 2. Incorporation by Reference. These Bylaws and any amendments
thereto shall be deemed incorporated by reference in the Agreement.
<PAGE> 1
Exhibit 14-A
Page 1 of 2
CERTIFICATE OF MERGER OF
COMMONWEALTH PROPANE, INC., A VIRGINIA CORPORATION,
WITH AND INTO
COLUMBIA PROPANE CORPORATION, A DELAWARE CORPORATION
Columbia Propane Corporation, a Delaware corporation, does hereby
certify, pursuant to Section 252 of the General Corporation Law of the State of
Delaware (the "DGCL"), that:
1. The name and state of incorporation of each of the constituent
corporations are:
Name State of Incorporation
---- ----------------------
Commonwealth Propane, Inc. Virginia
Columbia Propane Corporation Delaware
2. A plan and agreement of merger has been approved, adopted,
certified, executed, and acknowledged by each of the constituent corporations in
accordance with subsection (c) of Section 252 of the DGCL.
3. The surviving corporation is Columbia Propane Corporation. The
surviving corporation is a corporation organized and existing under the laws of
the State of Delaware.
4. The following amendment to the certificate of incorporation of
the surviving corporation is to be effected by the merger: the certificate of
incorporation of Columbia Propane Corporation shall be amended by deleting the
text thereof in its entirety and inserting in lieu thereof the new text set
forth on Exhibit A attached hereto and incorporated herein by this reference, so
that, upon and after the Effective Time (as hereinafter defined), unless and
until duly amended in accordance with the DGCL, the certificate of incorporation
of the surviving corporation shall read in its entirety as set forth on said
Exhibit A.
5. The executed plan and agreement of merger by and between the
constituent corporations is on file at an office of
<PAGE> 2
Exhibit 14-A
Page 2 of 2
the surviving corporation, the address of which is 9200 Arboretum
Parkway, Suite 140, Richmond, Virginia 23236.
6. A copy of the plan and agreement of merger by and between the
constituent corporations will be furnished by the surviving corporation, on
request and without cost, to any stockholder of any constituent corporation.
7. The authorized capital stock of each constituent corporation that
is not a Delaware corporation, namely, Commonwealth Propane, Inc., a Virginia
corporation, is 100,000 shares of common stock, par value $50 per share.
8. This Certificate of Merger is not to become effective until 12:01
a.m., Eastern Daylight Time, on October 1, 1997 (the "Effective Time").
IN WITNESS WHEREOF, the surviving corporation, Columbia Propane
Corporation, has caused this Certificate of Merger to be duly executed and
acknowledged in accordance with the DGCL.
COLUMBIA PROPANE CORPORATION
By: /s/ A.M. Brent
------------------------
Name: A. M. Brent
Title: President
<PAGE> 1
Exhibit 15-A
Page 1 of 4
RESTATED
CERTIFICATE OF INCORPORATION
OF
COLUMBIA PROPANE CORPORATION
Columbia Propane Corporation, a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows: The name
of the corporation is Columbia Propane Corporation. Columbia Propane Corporation
was originally incorporated under the name Columbia Hydrocarbon Corporation and
the original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on August 20, 1957. This Restated
Certificate of Incorporation was duly adopted pursuant to Sections 103, 242 and
245 of the General Corporation Law of the State of Delaware. Upon filing with
the Secretary of State, in accordance with section 103, this Restated
Certificate of Incorporation amends and restates and shall henceforth supersede
the original Certificate of Incorporation and shall, as it may thereafter be
amended in accordance with its terms and applicable law, be the Certificate of
Incorporation of the Corporation. The text of the Certificate of Incorporation
as heretofore amended or supplemented is hereby amended and restated to read in
its entirety as follows:
ARTICLE I
The name of this corporation is Columbia Propane Corporation (the
"Corporation").
ARTICLE II
The address of the registered office of the Corporation in the State
of Delaware is The Corporation Trust Center, 1209 Orange Street, Wilmington,
County of New Castle, Delaware, and the name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which
<PAGE> 2
Exhibit 15-A
Page 2 of 4
corporations may be organized under the General Corporation Law of the State of
Delaware (the "General Corporation Law").
ARTICLE IV
The total number of shares of stock which the Corporation shall have
authority to issue is three thousand (3,000). All such shares are to be common
stock, par value of Twenty Five Dollars ($25.00) per share (the "Common Stock"),
and are to be of one class.
Upon the filing with the Secretary of State of the State of Delaware
of an instrument adding this paragraph to the certificate of incorporation of
the Corporation and such instrument becoming effective (the "Effective Time"),
each share of stock issued and outstanding or (if any) held in treasury
immediately prior to the Effective Time ("Old Stock") shall, without the
exchange of stock certificates or any further action by the holder of such
shares, be reclassified into one one hundred thirteenth and one-third
(1/113 1/3) of a share of Common Stock, and each stock certificate that,
immediately prior to the Effective Time, represented one (1) or more shares of
Old Stock shall, from and after the Effective Time, and without the necessity of
presenting the same for exchange, represent a number of shares of Common Stock
equal to one one hundred thirteenth and one-third (1/113 1/3) of the number of
shares of Old Stock designated on such stock certificate, provided, however,
that after the Effective Time, upon the surrender by any stockholder of one (1)
or more certificates bearing the number of shares of Old Stock represented by
such certificate prior to the Effective Time, the officers of the Corporation
are hereby authorized and directed to issue in exchange therefor one or more new
certificates bearing the number of shares of Common Stock to which the holder
thereof shall be entitled pursuant to the foregoing reclassification.
No stockholder shall have any preemptive right to subscribe to any
additional issue of shares of any class or series thereof of the stock of the
Corporation or to any securities of the Corporation convertible into or
exchangeable for such stock.
ARTICLE V
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the
<PAGE> 3
Exhibit 15-A
Page 3 of 4
stockholders or class of stockholders of this Corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
this Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
ARTICLE VI
A director of the Corporation shall not be personally 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 General Corporation Law as the
same exists or may hereafter be amended. Any repeal or modification of the
foregoing sentence shall not adversely affect any right or protection of a
director of the Corporation existing hereunder with respect to any act or
omission occurring prior to such repeal or modification.
ARTICLE VII
In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Corporation's board of directors is expressly
authorized and empowered to adopt, amend and repeal the by-laws of the
Corporation, subject to the power of the stockholders of the Corporation to
amend or repeal any by-law made by the board of directors.
ARTICLE VIII
Unless and except to the extent that the by-laws of the Corporation
shall so require, the election of the directors of the Corporation need not be
by written ballot.
ARTICLE IX
The Corporation reserves the right at any time, and from time to
time, to amend, alter, change or repeal any provision contained in this
certificate of incorporation, and other provisions authorized by the laws of the
State of Delaware at the time in force may be added or
<PAGE> 4
Exhibit 15-A
Page 4 of 4
inserted, in the manner now or hereafter prescribed by law; and all rights,
preferences and privileges of whatsoever nature conferred upon stockholders,
directors or any other persons whomsoever by and pursuant to this certificate of
incorporation in its present form or as hereafter amended are granted subject to
the rights reserved in this Article IX.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has
been signed under the Seal of the Corporation this 30th day of September, 1997.
COLUMBIA PROPANE CORPORATION
By: /s/ Tejinder S. Binda
------------------------------
Tejinder S. Bindra, Secretary
Attest: /s/ Mark A. Cleaves
------------------------------
Mark A. Cleaves, Assistant Secretary
SEAL
<PAGE> 1
Exhibit 12-B
Page 1 of 27
COLUMBIA PROPANE CORPORATION
*****
RESTATED
BYLAWS
DATED OCTOBER 1, 1997
*****
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
ARTICLE I - OFFICES............................................................................................... 1
Section 1. Registered Office............................................................................ 1
Section 2. Other Offices................................................................................ 1
ARTICLE II - MEETINGS OF STOCKHOLDERS............................................................................. 1
Section 1. Place........................................................................................ 1
Section 2. Annual Meetings.............................................................................. 1
Section 3. Notice....................................................................................... 2
Section 4. Shareholder's List........................................................................... 2
Section 5. Special Meetings............................................................................. 2
Section 6. Quorum....................................................................................... 3
Section 7. Votes........................................................................................ 3
Section 8. Action by Consent............................................................................ 4
ARTICLE III - DIRECTORS........................................................................................... 4
Section 1. Number....................................................................................... 4
Section 2. Vacancies.................................................................................... 4
Section 3. General Powers............................................................................... 5
Section 4. Meetings of the Board of Directors........................................................... 5
Section 5. Notice of Meetings........................................................................... 5
</TABLE>
<PAGE> 2
Exhibit 12-B
Page 2 of 27
<TABLE>
<CAPTION>
<S> <C>
Section 6. Quorum....................................................................................... 6
Section 7. Action by Consent............................................................................ 6
Section 8. Telephonic Meetings.......................................................................... 6
Section 9. Committees of Directors. ................................................................... 7
Section 10. Compensation of Directors................................................................... 7
ARTICLE IV - NOTICES.............................................................................................. 8
ARTICLE V - OFFICERS.............................................................................................. 8
Section 1. General...................................................................................... 8
Section 2. Compensation................................................................................. 9
Section 3. Vacancies.................................................................................... 9
Section 4. The President and Vice Presidents............................................................ 9
Section 5. Secretary.................................................................................... 9
Section 6. Treasurer.................................................................................... 10
ARTICLE VI - CAPITAL STOCK....................................................................................... 11
Section 1. Registered Stockholders..................................................................... 11
Section 2. Certification............................................................................... 11
Section 3. Lost Certificates........................................................................... 12
Section 4. Transfers of Stock.......................................................................... 12
Section 5. Record Date................................................................................. 13
Section 6. Dividends................................................................................... 13
ARTICLE VII - INDEMNIFICATION.................................................................................... 14
Section 1. Right to Indemnification.................................................................... 14
Section 2. Insurance, Contracts and Funding............................................................ 14
Section 3. Indemnification; Not Exclusive Right........................................................ 15
Section 4. Advancement of Expenses; Procedures; Presumptions
and Effect of Certain Proceedings; Remedies........................................... 15
(a) Advance of Expenses................................................................... 15
(b) Procedure for Determination of Entitlement to Indemnification......................... 16
(c) Presumptions and Effect of Certain Proceedings........................................ 17
(d) Remedies of Indemnitee................................................................ 17
(e) Definitions........................................................................... 19
Section 5. Severability................................................................................ 21
Section 6. Successor Laws, Regulations and Agencies.................................................... 21
ARTICLE VIII - GENERAL PROVISIONS................................................................................ 21
</TABLE>
<PAGE> 3
Exhibit 12-B
Page 3 of 27
<TABLE>
<CAPTION>
<S> <C>
Section 1. Checks...................................................................................... 21
Section 2. Fiscal Year................................................................................. 21
Section 3. Seal........................................................................................ 21
Section 4. Amendments.................................................................................. 22
</TABLE>
<PAGE> 4
Exhibit 12-B
Page 4 of 27
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of Columbia Propane
Corporation (the "Corporation") shall be in the City of Wilmington, County of
New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Corporation's
board of directors (the "Board of Directors") may from time to time determine or
the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place. All meetings of the stockholders for the election of
directors shall be held in the County of New Castle, State of Delaware, at such
place as may be fixed from time to time by the Board of Directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. Annual meetings of stockholders shall be
held on the first Monday of June if not a legal holiday, and if a legal holiday,
then on the next secular day following, at 10:00 A.M., or at such other date and
time as shall be designated from time
<PAGE> 5
Exhibit 12-B
Page 5 of 27
to time by the Board of Directors and stated in the notice of the meeting, at
which they shall elect by a plurality vote a Board of Directors, and transact
such other business as may properly be brought before the meeting.
Section 3. Notice. Written notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled
to vote at such meeting not less than ten (10) nor more than sixty (60) days
before the date of the meeting.
Section 4. Stockholder's List. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Corporation's certificate of incorporation (as the same may be amended or
restated from time to time, the "Certificate of Incorporation"), may be called
by the president and shall be called by the president or secretary at the
request in writing of a majority of the Board of Directors, or at the request in
writing of stockholders owning a majority in amount of the entire capital stock
of the
<PAGE> 6
Exhibit 12-B
Page 6 of 27
Corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting. Written notice of a
special meeting stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called, shall be given not less than ten
(10) nor more than sixty (60) days before the date of the meeting, to each
stockholder entitled to vote at such meeting. Business transacted at any special
meeting of the stockholders shall be limited to the purposes stated in the
notice.
Section 6. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting, at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. 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 meeting. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of statute or of the
Certificate of Incorporation, a different vote is required in which case such
express provision shall govern and control the decision of such question.
<PAGE> 7
Exhibit 12-B
Page 7 of 27
Section 7. Votes. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 8. Action by Consent. Unless otherwise provided in the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders of the Corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders 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 all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. Number. The number of directors which shall constitute the
whole Board of Directors shall be not less than three (3). The number of
directors shall be determined by resolution of the Board of Directors or by the
stockholders at the annual meeting. The directors shall be elected at the annual
meeting of the stockholders, except as provided in Section 2 of this Article,
and each director elected shall hold office until his or her successor is
elected and qualified. Directors need not be stockholders.
<PAGE> 8
Exhibit 12-B
Page 8 of 27
Section 2. 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
a sole remaining director, and the directors so chosen shall hold office until
the next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by statute.
Section 3. General Powers. The business of the Corporation shall be
managed by the Board of Directors which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the Certificate of Incorporation or by these Bylaws directed or required to be
exercised or done by the stockholders.
Section 4. Meetings of the Board of Directors. The Board of Directors
may hold meetings, both regular and special, either within or without the State
of Delaware. The first meeting of each newly-elected Board of Directors shall be
held at such time and place as shall be fixed by the vote of the stockholders at
the annual meeting and no notice of such meeting shall be necessary to the
newly-elected directors in order legally to constitute the meeting, provided all
of the directors shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly-elected
Board of Directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the Directors. In lieu of holding such meeting,
the newly-elected Board of Directors may act by written consent consistent with
these Bylaws.
<PAGE> 9
Exhibit 12-B
Page 9 of 27
Section 5. Notice of Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board of Directors. Special meetings of
the Board of Directors may be called by the President, the Secretary or any
Assistant Secretary on six (6) hours' notice to each director, either personally
or by mail or by telegram; special meetings shall be called by the President,
the Secretary or an Assistant Secretary in like manner and on like notice on the
written request of two directors.
Section 6. Quorum. At all meetings of the Board of Directors, a
majority of the directors then in office shall constitute a quorum for the
transaction of business (provided that not less than one-third of the total
number of directors shall be necessary to constitute a quorum), and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the Certificate of Incorporation. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 7. Action by Consent. Unless otherwise specifically restricted
by the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board of
Directors or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors or committee.
<PAGE> 10
Exhibit 12-B
Page 10 of 27
Section 8. Telephonic Meetings. Unless otherwise specifically
restricted by the Certificate of Incorporation or these Bylaws, members of the
Board of Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
Section 9. Committees of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
or more committees, each committee to consist of one or more of the directors of
the Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members thereof 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. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to the following matter: (i) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by statute to be submitted
to stockholders for approval or (ii) adopting, amending or repealing any Bylaw
of the Corporation. Such committee or committees shall have such name or names
as may be determined from time to time by resolution adopted by the Board of
Directors. Each committee shall keep regular minutes of its meetings and report
the same to the Board of Directors.
<PAGE> 11
Exhibit 12-B
Page 11 of 27
Section 10. Compensation of Directors. Unless otherwise specifically
restricted by the Certificate of Incorporation or these Bylaws, the Board of
Directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
ARTICLE IV
NOTICES
Whenever, under the provisions of applicable statute or of the
Certificate of Incorporation or of these Bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice may also be given by telegram, data fax, or other similar method of
transmitting a written communication. A waiver of notice in writing, signed by
the person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
<PAGE> 12
Exhibit 12-B
Page 12 of 27
ARTICLE V
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by
the Board of Directors and shall be a president and at least one of the
following: a Secretary, a Treasurer and/or a Controller. The Board of Directors
may also choose Vice-Presidents and one or more Assistant Secretaries and
Assistant Treasurers and/or Assistant Controllers. Any number of offices may be
held by the same person, unless the Certificate of Incorporation or these Bylaws
otherwise provide. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall have such titles hold their offices
for such terms and shall exercise such powers and perform such duties as shall
be determined from time to time by the Board of Directors.
Section 2. Compensation. The compensation of all officers and agents of
the Corporation shall be fixed by the Board of Directors.
Section 3. Vacancies. The officers of the Corporation shall hold office
until their successors are chosen and qualify. Any officer elected or appointed
by the Board of Directors may be removed at any time by the Board of Directors.
Any vacancy occurring in any office of the Corporation shall be filled by the
Board of Directors.
Section 4. The President and Vice Presidents. The President shall be
the chief executive officer of the Corporation, shall preside at all meetings of
the stockholders and the Board of Directors, shall have general and active
management of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The President
shall execute bonds, mortgages and other contracts requiring a
<PAGE> 13
Exhibit 12-B
Page 13 of 27
seal, under the seal of the Corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the Corporation. The Vice President, or if there be
more than one, the Vice Presidents in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election), shall perform such duties and exercise such powers as the Board of
Directors may from time to time prescribe.
Section 5. Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or President, under whose supervision he or she shall be.
The Secretary shall have custody of the corporate seal of the Corporation and
the Secretary, or an Assistant Secretary, shall have authority to affix the same
to any instrument requiring it and when so affixed, it may be attested by the
signature of the Secretary or an Assistant Secretary. The Board of Directors may
give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by such officer's signature. An Assistant Secretary,
or if there be more than one, the Assistant Secretaries in the order determined
by the Board of Directors (or if there be no such determination, then in the
order of their election), shall, in the absence of the Secretary or in the event
of the Secretary's inability or refusal to act, perform the duties and exercise
the powers of the Secretary and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
<PAGE> 14
Exhibit 12-B
Page 14 of 27
Section 6. Treasurer. The Treasurer and/or Controller, or as directed
by the Board of Directors, one or more Assistant Treasurers and/or Assistant
Controllers shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board of Directors. The Treasurer and/or Controller or,
as directed by the Board of Directors, one or more Assistant Treasurers and/or
Assistant Controllers shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the president and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all transactions made as Treasurer/Assistant Treasurer and/or as
Controller/Assistant Controller and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer or an
Assistant Treasurer and/or the Controller or an Assistant Controller shall give
the Corporation a bond (which shall be renewed every six (6) years) in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of their offices and for
the restoration to the Corporation, in case of their death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in their possession or under their control
belonging to the Corporation. The Assistant Treasurer and/or Assistant
Controller, or if there shall be more than one, the Assistant Treasurers and/or
Assistant Controllers in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer and/or Controller or in the event of his or her
inability or refusal to act, perform the duties and exercise the powers of the
Treasurer and/or Controller and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
<PAGE> 15
ARTICLE VI
CAPITAL STOCK
Exhibit 12-B
Page 15 of 27
Section 1. Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and 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 the laws of the State of Delaware.
Section 2. Certification. Shares of capital stock may be certificated
at the discretion of the Board of Directors. If certificated, then every holder
of capital stock in the Corporation shall receive a certificate, signed by, or
in the name of the Corporation, by the President or the Vice President and by
the Treasurer or an Assistant Treasurer and/or the Controller or an Assistant
Controller, or by the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the Corporation. Any of or all
the signatures on the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit
<PAGE> 16
Exhibit 12-B
Page 16 of 27
of that fact by the person claiming the certificate of stock to be lost, stolen
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, stolen 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 in such
sum as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 4. Transfers of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, 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, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. 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.
<PAGE> 17
Exhibit 12-B
Page 17 of 27
Section 6. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, or by written consent, pursuant to law. Dividends may be paid in cash,
in property, or in shares of the capital stock, subject to the provisions of the
Certificate of Incorporation. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall think conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
<PAGE> 18
Exhibit 12-B
Page 18 of 27
ARTICLE VII
INDEMNIFICATION
Section 1. Right to Indemnification. The Corporation shall to the
fullest extent permitted by applicable law as then in effect indemnify any
person (the "Indemnitee") who was or is involved in any manner (including,
without limitation, as a party or a witness) or is threatened to be made so
involved in any threatened, pending or completed investigation, claim, action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including without limitation, any action, suit or proceeding by or in the right
of the Corporation to procure a judgment in its favor) (a "Proceeding") by
reason of the fact that such person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise (including, without limitation, any
employee benefit plan) against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such Proceeding. Such indemnification shall be
a contract right and shall include the right to receive payment of any expenses
(including attorney's fees) incurred by the Indemnitee in connection with such
Proceeding in advance of its final disposition, consistent with the provisions
of applicable law as then in effect.
Section 2. Insurance, Contracts and Funding. The Corporation may
purchase and maintain insurance to protect itself and any indemnitee against any
expenses, judgments, fines and amounts paid in settlement as specified in
Section 1 of this Article VII or incurred by an Indemnitee in connection with
any proceeding referred to in Section 1 of this Article VII, to the fullest
extent permitted by applicable law as then in effect. The Corporation may enter
into contracts with any director, officer, employee or agent of the Corporation
or use
<PAGE> 19
Exhibit 12-B
Page 19 of 27
other means in furtherance of the provisions of this Article VII to ensure the
payment of such amounts as may be necessary to effect indemnification as
provided in this Article VII.
Section 3. Indemnification; Not Exclusive Right. The right of
indemnification provided in this Article VIII shall not be exclusive of any
other rights to which those seeking indemnification may otherwise be entitled,
and the provisions of this Article VII shall inure to the benefit of the heirs
and legal representatives of any person entitled to indemnity under this Article
VII and shall be applicable to Proceedings commenced or continuing after the
adoption of this Article VII, whether arising from acts or omissions occurring
before or after such adoption.
Section 4. Advancement of Expenses; Procedures; Presumptions and Effect
of Certain Proceedings; Remedies. In furtherance but not in limitation of the
foregoing provisions, the following procedures, presumptions and remedies shall
apply with respect to advancement of expenses and the right to indemnification
under this Article VII:
(a) Advance of Expenses. All reasonable expenses (including
attorney's fees) incurred by or on behalf of the Indemnitee in connection with
any Proceeding shall be advanced to the Indemnitee by the Corporation within
twenty (20) days after the receipt by the Corporation of a statement or
statements from the Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the expenses incurred by the
Indemnitee and, if required by law at the time of such advance, shall include or
be accompanied by an undertaking by or on behalf of the Indemnitee to repay the
amounts advanced if it should ultimately be determined that the Indemnitee is
not entitled to be indemnified against such expenses pursuant to this Article
VII.
<PAGE> 20
Exhibit 12-B
Page 20 of 27
(b) Procedure for Determination of Entitlement to
Indemnification.
(i) To obtain indemnification under this Article VII, an
Indemnitee shall submit to the secretary of the Corporation a written request,
including such documentation and information as is reasonably available to the
Indemnitee and reasonably necessary to determine whether and to what extent the
Indemnitee is entitled to indemnification (the "Supporting Documentation"). The
determination of the Indemnitee's entitlement to indemnification shall be made
not later than sixty (60) days after receipt by the Corporation of the written
request for indemnification together with Supporting Documentation. The
secretary of the Corporation shall advise the Board of Directors in writing,
promptly upon receipt of such a request for indemnification, that the Indemnitee
has requested indemnification.
(ii) The Indemnitee's entitlement to indemnification under
this Article VII shall be determined in one of the following ways: (A) by a
majority vote of the Disinterested Directors (as hereinafter defined), whether
or not they constitute a quorum of the Board of Directors; (B) by a written
opinion of Independent Counsel (as hereinafter defined) if (x) a Change of
Control (as hereinafter defined) shall have occurred and the Indemnitee so
requests or (y) a majority of such Disinterested Directors so directs; (C) by
the stockholders of the Corporation (but only if a majority of the Disinterested
Directors present the issue of entitlement to indemnification to the
stockholders for their determination); or (D) as provided in Section 4(c) of
this Article VII.
(iii) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Section
4(b)(ii) of this Article VII, a majority of the Board of Directors shall select
the Independent Counsel, but only an Independent Counsel to which the Indemnitee
does not reasonably object; provided, however, that if a Change of Control shall
have occurred, the Indemnitee shall
<PAGE> 21
Exhibit 12-B
Page 21 of 27
select such Independent Counsel, but only an Independent Counsel to which the
Board of Directors does not reasonably object.
(iv) The only basis upon which a finding of no entitlement
to indemnification may be made is that indemnification is prohibited by law.
(c) Presumptions and Effect of Certain Proceedings. Except as
otherwise expressly provided in this Article VII, if a Change of Control shall
have occurred, the Indemnitee shall be presumed to be entitled to
indemnification under this Article VII upon submission of a request for
indemnification together with the Supporting Documentation in accordance with
Section 4(b)(i) of this Article VII, and thereafter the Corporation shall have
the burden of proof to overcome that presumption in reaching a contrary
determination. In any event, if the person or persons empowered under Section
4(b) to determine entitlement to indemnification shall not have been appointed
or shall not have made a determination within sixty (60) days after receipt by
the Corporation of the request therefor together with the Supporting
Documentation, the Indemnitee shall be deemed to be entitled to indemnification,
and the Indemnitee shall be entitled to such indemnification unless the
Indemnitee misrepresented or failed to disclose a material fact in making the
request for indemnification or in the Supporting Documentation or such
indemnification is prohibited by law. The termination of any Proceeding
described in Section 1 of this Article VII, or of any claim, issue or matter
therein, by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not of itself adversely affect the right of
the Indemnitee to indemnification or create a presumption that the Indemnitee
did not act in good faith and in a manner which the Indemnitee reasonably
believed to be in or not opposed to the best interests of the Corporation or,
with respect to any criminal Proceeding, that the Indemnitee had reasonable
cause to believe that the Indemnitee's conduct was unlawful.
<PAGE> 22
Exhibit 12-B
Page 22 of 27
(d) Remedies of Indemnitee.
(i) In the event that a determination is made pursuant to
Section 4(b) or Section 4(c) of this Article VII that the Indemnitee is not
entitled to indemnification under this Article VII, (A) the Indemnitee shall be
entitled to seek an adjudication of his entitlement to such indemnification
either, at the Indemnitee's sole option, in (x) an appropriate court of the
State of Delaware or any other court of competent jurisdiction or (y) an
arbitration to be conducted by a single arbitrator pursuant to the rules of the
American Arbitration Association; (B) any such judicial proceeding or
arbitration shall be de novo and the Indemnitee shall not be prejudiced by
reason of such adverse determination; and (C) in any such judicial proceeding or
arbitration, the Corporation shall have the burden of proving that the
Indemnitee is not entitled to indemnification under this Article VII.
(ii) If pursuant to Section 4(b) or Section 4(c) of this
Article VII a determination shall have been made or deemed to have been made
that the Indemnitee is entitled to indemnification, the Corporation shall be
obligated to pay the amounts constituting such indemnification within five (5)
days after such determination has been made or is deemed to have been made and
shall be conclusively bound by such determination unless (A) the Indemnitee
misrepresented or failed to disclose a material fact in making the request for
indemnification or in the Supporting Documentation or (B) such indemnification
is prohibited by law. In the event that (x) advancement of expenses is not
timely made pursuant to Section 4(a) of this Article VII or (y) payment of
indemnification is not made within five (5) days after a determination of
entitlement to indemnification has been made or deemed to have been made
pursuant to Section 4(b) or Section 4(c) of this Article VIII the Indemnitee
shall be entitled to seek judicial enforcement of the Corporation's obligation
to pay to the Indemnitee such advancement of expenses or indemnification.
Notwithstanding the foregoing, the Corporation may bring an action in an
appropriate court in the State of Delaware or any other court of competent
jurisdiction, contesting the right of the Indemnitee
<PAGE> 23
Exhibit 12-B
Page 23 of 27
to receive indemnification hereunder due to the occurrence of an event described
in subclause (A) or (B) of this clause (ii) (a "Disqualifying Event"); provided,
however, that in any such action the Corporation shall have the burden of
proving the occurrence of such Disqualifying Event.
(iii) The Corporation shall be precluded from asserting in
any judicial proceeding or arbitration commenced pursuant to this Section 4(d)
that the procedures and presumptions of this Article VII are not valid, binding
and enforceable and shall stipulate in any such court or before any such
arbitrator that the Corporation is bound by all the provisions of this Article
VII.
(iv) In the event that pursuant to this Section 4(d) the
Indemnitee seeks a judicial adjudication of or an award in arbitration to
enforce the Indemnitee's rights under, or to recover damages for breach of, this
Article VII, the Indemnitee shall be entitled to recover from the Corporation,
and shall be indemnified by the Corporation against, any expenses actually and
reasonably incurred by the Indemnitee if the Indemnitee prevails in such
judicial adjudication or arbitration. If it shall be determined in such judicial
adjudication or arbitration that the Indemnitee is entitled to receive part but
not all of the indemnification or advancement of expenses sought, the expenses
incurred by the Indemnitee in connection with such judicial adjudication or
arbitration shall be prorated accordingly.
(e) Definitions. For purposes of this Section 4:
<PAGE> 24
Exhibit 12-B
Page 24 of 27
(i) "Change in Control" means (A) so long as the Public
Utility Holding Company Act of 1935 is in effect, any "company" becoming a
"holding company" in respect to the Corporation or any determination by the
Securities and Exchange Commission that any "person" should be subject to the
obligations, duties, and liabilities if imposed by said Holding Company Act by
virtue or his, hers or its influence over the management or policies of the
Corporation, or (B) whether or not said Holding Company Act is in effect, a
change in control of the Corporation of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934 (the "Act"), whether or not the
Corporation is then subject to such reporting requirement; provided that,
without limitation, such a change in control shall be deemed to have occurred if
(i) any "person" (as such term is used in Section 13(d) and 14(d) of the Act) is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Corporation representing 10% or
more of the combined voting power of the Corporation's then outstanding
securities without the prior approval of at least two-thirds of the members of
the Board of Directors in office immediately prior to such acquisition; (ii) the
Corporation is a party to a merger, consolidation, sale of assets or other
reorganization, or a proxy contest, as a consequence of which members of the
Board of Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors thereafter; or (iii)
during any period of two (2) consecutive years, individuals who at the beginning
of such period constituted the Board of Directors (including for this purpose
any new director whose election or nomination for election by the Corporation's
stockholders was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such period) cease for
any reason to constitute at least a majority of the Board of Directors.
<PAGE> 25
Exhibit 12-B
Page 25 of 27
(ii) "Disinterested Director" means a director of the
Corporation who is not or was not a party to the Proceeding in respect of which
indemnification is sought by the Indemnitee.
(iii) "Independent Counsel" means a law firm or a member
of a law firm that neither presently is, nor in the past five (5) years has
been, retained to represent: (A) the Corporation or the Indemnitee in any matter
material to either such party or (B) any other party to the Proceeding giving
rise to a claim for indemnification under this Article VII. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing under the
law of the State of Delaware, would have a conflict of interest in representing
either the Corporation or the Indemnitee in an action to determine the
Indemnitee's rights under this Article VII.
Section 5. Severability. If any provision or provisions of this Article
VII shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (i) the validity, legality and enforceability of the remaining
provisions of this Article VII (including, without limitation, all portions of
any paragraph of this Article VII containing any such provision held to be
invalid, illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (ii) to
the fullest extent possible, the provisions of this Article VII (including,
without limitation, all portions of any paragraph of this Article VII containing
any such provision held to be invalid, illegal or unenforceable that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
<PAGE> 26
Exhibit 12-B
Page 26 of 27
Section 6. Successor Laws, Regulations and Agencies. Reference herein
to laws, regulations or agencies shall be deemed to include all amendments
thereof, substitutions therefor and successors thereto.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 2. Fiscal Year. The fiscal year of the Corporation begins on
the first day of January and ends on the thirty-first day of December in each
year.
Section 3. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "Corporate
Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 4. Amendments. These Bylaws may be altered, amended or repealed
or new Bylaws may be adopted by the stockholders or by the Board of Directors,
when such power is conferred upon the Board of Directors by the Certificate of
Incorporation, at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of 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.
<PAGE> 27
Exhibit 12-B
Page 27 of 27
Adopted as of October 1, 1997.
<PAGE> 1
Exhibit 16-A
Page 1 of 2
CONSENT IN LIEU OF A SPECIAL
MEETING OF THE BOARD OF
DIRECTORS OF COMMONWEALTH
GAS SERVICES, INC.
The undersigned, being all of the members of the Board of Directors of
Commonwealth Gas Services, Inc. (the "Corporation"), hereby consent to and adopt
the following resolutions in lieu of action at a Special Meeting.
CHANGE OF CORPORATION'S NAME
WHEREAS, the Board of Directors of the Corporation has determined that
it would be advisable to amend the Certificate of Incorporation of the
Corporation to change the name of the Corporation to make it consistent with its
parent corporation's name.
NOW, THEREFORE, the undersigned, being all of the directors of the
Corporation, do unanimously agree as follows:
RESOLVED, that the Board of Directors of this Corporation hereby
recommends and declares it advisable that the Certificate of Incorporation of
this Corporation be amended to change the name of the Corporation to Columbia
Gas of Virginia, Inc.
RESOLVED, FURTHER, that the foregoing amendment is advisable and
its adoption is in the best interests of the Corporation and its stockholder and
to effectuate the foregoing, it is hereby directed that the foregoing amendment
be considered at the next annual meeting of the stockholder unless earlier
approved by written consent in accordance with Section 13.1-657 of the Code of
Virginia 1950, as amended; and
RESOLVED, FURTHER, that at any time prior to the filing of the
foregoing amendment to the Corporation's Certificate of Incorporate with the
State of Corporation Commission of the Commonwealth of Virginia, notwithstanding
authorization of such amendment by the stockholder of the Corporation; and
RESOLVED, FURTHER, that after approval of such amendment by the
stockholder of the Corporation, the officers of the Corporation be, and they
hereby are, authorized and directed to execute, acknowledge and file with the
State Corporation Commission of the Commonwealth of Virginia Articles of
Amendment to evidence the foregoing amendment to the Corporation's Certificate
of Incorporation; and
RESOLVED, FURTHER, that the officers of the Corporation be, and
they hereby are, authorized and directed from time to time to execute any and
all documents
<PAGE> 2
Exhibit 16-A
Page 2 of 2
and to take any and all other actions necessary or appropriate to carry forward
the foregoing resolutions.
EFFECTIVE DATE
RESOLVED, that the actions specified in the foregoing resolutions be,
and they hereby are, made effective on and as of the effective date of this
Consent.
IN WITNESS WHEREOF, the foregoing constitutes the actions of the Board
of Directors of the Corporation, effective as of the 16th day of January 1998.
/s/ J. Bennett Johnston
-----------------------
/s/ William E. Lavery
-----------------------
/s/ Michael W. O'Donnell
-----------------------
/s/ Oliver G. Richard, III
--------------------------
/s/ Andrew J. Sonderman
-----------------------
/s/ James R. Thomas, II
-----------------------
/s/ Anthony Trubisz, Jr.
-----------------------
/s/ Robert B. Wemyss
-----------------------
<PAGE> 1
Exhibit 13-B
Page 1 of 1
AGREEMENT AND CONSENT
in Lieu of Special Meeting of the Stockholder of
COMMONWEALTH GAS SERVICES, INC.
The undersigned, THE COLUMBIA GAS SYSTEM, INC., a Delaware corporation,
being the sole stockholder and owner of all outstanding shares of COMMONWEALTH
GAS SERVICES, INC., a Virginia corporation, pursuant to the laws of the State of
Virginia, hereby agrees and consents to the adoption of the following resolution
in lieu of action at a Special Meeting of the Stockholder:
Waiver of Special Meeting
A Special Meeting of the Stockholder to amend the Bylaws of this
Corporation, and notice thereof, as provided in the Bylaws of this Corporation,
are hereby waived.
Amendment of Bylaws
RESOLVED, that Section 1 of ARTICLE II of the Bylaws
of this Corporation be amended to provide that no person who
is a director of the Corporation shall continue as a director
beyond the Annual Meeting of Stockholders next following his
72nd birthday so that said Section 1, ARTICLE II, as amended,
shall read as follows:
Section 1. Election and Powers. The business and
property of the company shall be conducted and managed by its
Board of Directors which shall be eight in number, which may
exercise all of the power of the company except such as are by
Statute, by the Charter, or by these Bylaws, conferred upon or
reserved to the stockholders. The members of the Board of
Directors shall be elected at the Annual Meeting of
Stockholders. Each director shall hold office until the Annual
Meeting held next after his election and until his successors
shall have been duly chosen and qualified, or until he shall
have resigned or shall have been removed. The Board of
Directors shall keep full and fair accounts of its
transactions. No person who is a director of the company shall
continue as a director beyond the Annual Meeting of
Stockholders next following his 72nd birthday.
IN WITNESS WHEREOF, THE COLUMBIA GAS SYSTEM, INC. has caused this
Agreement and Consent to be duly executed in its corporate name and under its
corporate seal, as of the 1st day of November, 1997.
THE COLUMBIA GAS SYSTEM, INC.
By:
Chairman
(SEAL)
Attest:
Secretary
<PAGE> 1
Exhibit 17-A
Page 1 of 2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
TRISTAR CAPITAL CORPORATION
TRISTAR CAPITAL CORPORATION, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, by unanimous
written consent dated June 30, 1997, adopted resolutions proposing and declaring
advisable an amendment to part FOURTH of the Certificate of Incorporation of
said Corporation as follows:
RESOLVED, that the Board of Directors finds advisable and
hereby proposes to the stockholders of the Corporation that part FOURTH
of the Certificate of Incorporation of the Corporation be amended in
its entirety to read as follows:
FOURTH. The total number of shares of stock which the
Corporation shall have authority to issue is Three Thousand
(3,000) and the par value of each of such shares is
Twenty-Five Dollars ($25.00) amounting in the aggregate to
Seventy Five Thousand Dollars ($75,000).
RESOLVED, FURTHER, that effective at the time of the filing of
the Certificate of Amendment setting forth this amendment to the
Certificate of Incorporation (the "Effective Time"), each share of the
common stock of the Corporation, par value $25.00 per share, issued and
outstanding or held in treasury immediately prior to the Effective Time
shall, without the exchange of stock certificates or the taking of any
other action on the part of the Corporation or the respective holders
thereof, be reclassified into one thirteen and one third (1/13) of a
share of common stock of the Corporation, par value $25.00 per share,
and each stock certificate that, immediately prior to the Effective
Time, represented shares of such common stock shall, from and after the
Effective Time, and without the necessity of presenting the same for
exchange, represent one thirteen and one third (1/13) of the number of
shares designated on such stock certificate, provided, however, that
after the Effective Time, upon the surrender by any stockholder of
certificates bearing the number of shares of the Corporation's common
stock represented by such certificate prior to the Effective Time, the
officers of the Corporation be, and they hereby are, authorized and
directed to issue in exchange therefor one or more new certificates
bearing the number of
<PAGE> 2
Exhibit 17-A
Page 2 of 2
reclassified shares of the Corporation's common stock;
RESOLVED, FURTHER, that the foregoing amendment is advisable
and its adoption is in the best interests of the Corporation and its
stockholders and, to effectuate the foregoing, it is hereby directed
that the foregoing amendment be considered at the next annual meeting
of the stockholders, unless earlier approved by written consent in
accordance with Section 228 of the Delaware General Corporation Law;
RESOLVED, FURTHER, that after approval of such amendment by
the stockholders of the Corporation and receipt of all necessary
regulatory approvals, the officers of the Corporation be, and they
hereby are, authorized and directed to execute, acknowledge and file
with the Secretary of State of the State of Delaware a Certificate of
Amendment to evidence the foregoing amendment to the Corporation's
Certificate of Incorporation; and
RESOLVED, FURTHER, that the officers of the Corporation be,
and they hereby are, authorized and directed from time to time to
execute any and all documents and to take any and all other actions
necessary or appropriate to carry forward the foregoing resolutions.
SECOND: That in lieu of a meeting and vote of the stockholders, The
Columbia Gas System, Inc., being the holder of the outstanding stock of the
Corporation having not less than the minimum number of votes that would be
necessary to authorize or take action at a meeting at which all shares entitled
to vote thereon were present and voted, approved said amendment by written
Consent dated as of August 1, 1997, in accordance with the provisions of Section
228(a) of the General Corporation Law of the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, TriStar Capital Corporation has caused this
Certificate to be signed by Mr. Stephen J. Harvey, its President, and attested
by Mr. Tejinder S. Bindra, its Secretary, this day of , 1997.
By: Stephen J. Harvey
-----------------
President
ATTEST: Tejinder S. Bindra
------------------
Secretary
<PAGE> 1
Exhibit 18-A
Page 1 of 3
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF TRISTAR VENTURES CORPORATION
TRISTAR VENTURES CORPORATION, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation (the "Board"), by
unanimous written consent dated as of June 1, 1997, adopted resolutions
proposing and declaring advisable an amendment to part FOURTH of the Restated
Certificate of Incorporation of the Corporation as follows:
RESOLVED, that the Board of Directors finds advisable and hereby
proposes to the stockholders of the Corporation that part FOURTH of the
Restated Certificate of Incorporation of the Corporation be amended in its
entirety to read as follows:
FOURTH. The total number of shares of stock which the corporation
shall have authority to issue is Three Thousand (3,000) and the par
value of each of such shares is Twenty-Five Dollars ($25.00)
amounting in the aggregate to Seventy Five Thousand Dollars ($75,000).
RESOLVED, FURTHER, that effective at the time of the filing of the
Certificate of Amendment setting forth this amendment to the Restated
Certificate of Incorporation (the "Effective Time"), each share of the common
stock of the Corporation, par value $25.00 per share, issued and outstanding or
held in treasury immediately prior to the Effective Time shall, without the
exchange of stock certificates or the taking of any other action on the part of
the Corporation or the respective holders thereof, be reclassified into one
three hundred thirty three and one third (1/333 1/3) of a share of common stock
of the Corporation, par value $25.00 per share, and each stock certificate
that, immediately prior to the Effective Time, represented shares of such
common stock shall, from and after the Effective Time, and without the
necessity of presenting the same for exchange, represent one three hundred
thirty three and one third (1/333 1/3) of the number of shares designated on
such stock certificate, provided, however, that after the Effective Time, upon
the surrender by any stockholder of certificates bearing the number of shares
of the Corporation's common stock represented by such certificate prior to the
Effective Time, the officers of the Corporation be, and they hereby are,
authorized and directed to issue in exchange therefore one or more new
certificates bearing the number of reclassified shares of the Corporation's
common stock;
<PAGE> 2
Exhibit 18-A
Page 2 of 3
RESOLVED, FURTHER, that the foregoing amendment is advisable and its
adoption is in the best interests of the Corporation and its stockholders and,
to effectuate the foregoing, it is hereby directed that the foregoing amendment
be considered at the next annual meeting of the stockholders, unless earlier
approved by written consent in accordance with Section 228 of the Delaware
General Corporation Law;
RESOLVED, FURTHER, that after approval of such amendment by the
stockholders of the Corporation and receipt of all necessary regulatory
approvals, the officers of the Corporation be, and they hereby are, authorized
and directed to execute, acknowledge and file with the Secretary of State of
the State of Delaware, a Certificate of Amendment to evidence the foregoing
amendment to the Corporation's Restated Certificate of Incorporation; and
RESOLVED, FURTHER, that the officers of the corporation be, and they
hereby are, authorized and directed from time to time to execute any and all
documents and to take any and all other actions necessary or appropriate to
carry forward the foregoing resolutions.
SECOND: That thereafter, by resolution, the Board declared said amendment
to be advisable and its adoption to be in the best interests of the Corporation
and its stockholders and, to effectuate the foregoing, the Board directed that
said amendment be considered at the next annual meeting of the stockholders,
unless earlier approved by written consent in accordance with Section 228 of
the Delaware General Corporation Law.
THIRD: That in lieu of a meeting and vote of the stockholders, The
Columbia Gas System, Inc., being the holder of the outstanding stock of the
corporation having not less than the minimum number of votes that would be
necessary to authorized or take action at a meeting at which all shares
entitled to vote thereon were present and voted, approved said amendment by
written consent dated as of January 15, 1997, in accordance with the provisions
of Section 228(a) of the General Corporation Laws of the State of Delaware.
FOURTH: That said amendment was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF: TriStar Ventures Corporation has caused this
Certificate to be signed by Dr. Michael J. Gluckman, its President and Chief
Executive Officer, and attested by Mr. Tejinder S. Bindra, its Secretary, as of
this 8th day of July, 1997.
<PAGE> 3
Exhibit 18-A
Page 3 of 3
TRISTAR VENTURES CORPORATION
BY: /s/ Michael J. Gluckman
-----------------------
President
ATTEST:
/s/ Tejindra S. Bindra
- ----------------------
Secretary
<PAGE> 1
Exhibit 19-A
Page 1 of 2
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
TRISTAR VENTURES CORPORATION
TRISTAR VENTURES CORPORATION, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, by unanimous
written consent dated December 29, 1997 adopted resolutions proposing and
declaring advisable an amendment to part FIRST of the Restated Certificate of
Incorporation of said Corporation as follows:
RESOLVED, that the Board of Directors of this Corporation
hereby declares it advisable that the Restated Certificate of
Incorporation of this Corporation be amended to change the name of the
Corporation to Columbia Electric Corporation, the amendment to be
effective by deleting part FIRST of said Restated Certificate of
Incorporation and inserting in lieu thereof the following:
FIRST. The name of the Corporation is Columbia Electric
Corporation.
RESOLVED, FURTHER, that the foregoing amendment is advisable
and its adoption is in the best interests of the Corporation and its
stockholders and, to effectuate the foregoing, it is hereby directed
that the foregoing amendment be considered at the next annual meeting
of the stockholders unless earlier approved by written consent in
accordance with Section 228 of the Delaware General Corporation Law;
and
RESOLVED, FURTHER, that at any time prior to the filing of the
foregoing amendment to the Corporation's Restated Certificate of
Incorporation with the Secretary of State of the State of Delaware,
notwithstanding authorization of such amendment by the stockholders of
the Corporation, the Board of Directors of the Corporation may abandon
such amendment without further action by the stockholders of the
Corporation; and
<PAGE> 2
Exhibit 19-A
Page 2 of 2
RESOLVED, FURTHER, that after approval of such amendment by
the stockholders of the Corporation, the officers of the Corporation
be, and they hereby are, authorized and directed to execute,
acknowledge and file with the Secretary of State of the State of
Delaware a Certificate of Amendment to evidence the foregoing amendment
to the Corporation's Restated Certificate of Incorporation; and
RESOLVED, FURTHER, that the officers of the Corporation be,
and they hereby are, authorized and directed from time to time to
execute any and all documents and to take any and all other actions
necessary or appropriate to carry forward the foregoing resolutions.
SECOND: That in lieu of a meeting and vote of the stockholders, The
Columbia Gas System, Inc., being the holder of the outstanding stock of the
Corporation having not less than the minimum number of votes that would be
necessary to authorize or take action at a meeting at which all shares entitled
to vote thereon were present and voted, approved said amendment by written
Consent dated as of January 16, 1998 in accordance with the provisions of
Section 228(a) of the General Corporation Law of the State of Delaware.
THIRD: That said amendment was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 (by the written consent of the
sole stockholder of the Corporation) of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, TriStar Ventures Corporation has caused this
Certificate to be signed by Mr. Dennis P. Detar, its Treasurer, and attested by
Mr. Tejinder S. Bindra, its Secretary, this 16th day of January, 1998.
By:
-----------------------------
Treasurer
ATTEST:
-----------------------------
Secretary
<PAGE> 1
Exhibit D
Page 1 of 5
AGREEMENT FOR FILING CONSOLIDATED
FEDERAL INCOME TAX RETURN AND FOR
ALLOCATION OF LIABILITIES AND BENEFITS
ARISING FROM SUCH CONSOLIDATED
TAX RETURN BETWEEN
COLUMBIA ENERGY GROUP
AND SUBSIDIARY COMPANIES
The following members of Columbia Energy Group, affiliated group of
corporations as described in Section 1504 of the Internal Revenue Code hereby
authorize their common parent corporation, Columbia Energy Group, to make and
file a consolidated federal income tax return on behalf of the group.
Federal
Employer
Identification
Name and Address Number
COLUMBIA ENERGY GROUP . . . . . . . . . . . . . . . . . . 13-1594808
COLUMBIA ATLANTIC TRADING CORPORATION . . . . . . . . . . 51-0122560
COLUMBIA ENERGY GROUP SERVICE CORPORATION . . . . . . . . 13-1596081
COLUMBIA LNG CORPORATION . . . . . . . . . . . . . . . . . 31-0808682
CLNG CORPORATION . . . . . . . . . . . . . . . . . . . . 51-0363075
COLUMBIA INSURANCE CORPORATION, LTD . . . . . . . . . . . 54-1846993
TRISTAR CAPITAL CORPORATION . . . . . . . . . . . . . . . 51-0331685
TRISTAR GAS TECHNOLOGIES, INC. . . . . . . . . . . . . . 51-0331689
COLUMBIA NETWORK SERVICES CORPORATION. . . . . . . . . . . 55-0752155
CNS MICROWAVE, INC. . . . . . . . . . . . . . . . . . . . 55-0753507
12355 SUNRISE VALLEY DRIVE, SUITE 300
RESTON, VA 20191-3420
COLUMBIA ELECTRIC CORPORATION . . . . . . . . . . . . . . . 55-0647910
TRISTAR PEDRICK LIMITED CORPORATION . . . . . . . . . . . 51-0314565
TRISTAR PEDRICK GENERAL CORPORATION . . . . . . . . . . . 51-0314105
TRISTAR FUEL CELLS CORPORATION . . . . . . . . . . . . . 51-0324211
TRISTAR BINGHAMTON GENERAL CORPORATION . . . . . . . . . 51-0324212
TRISTAR BINGHAMTON LIMITED CORPORATION . . . . . . . . . 51-0324213
TRISTAR GEORGETOWN GENERAL CORPORATION . . . . . . . . . 51-0324214
TRISTAR GEORGETOWN LIMITED CORPORATION . . . . . . . . . 51-0324215
TRISTAR VINELAND GENERAL CORPORATION . . . . . . . . . . 51-0324217
TRISTAR VINELAND LIMITED CORPORATION . . . . . . . . . . 51-0324218
TRISTAR RUMFORD LIMITED CORPORATION . . . . . . . . . . . 51-0324219
TVC NINE CORPORATION . . . . . . . . . . . . . . . . . . 51-0324220
TVC TEN CORPORATION . . . . . . . . . . . . . . . . . . . 51-0324221
205 VAN BUREN STREET, SUITE 120
HERNDON, VA 20170
<PAGE> 2
Exhibit D
Page 2 of 5
COLUMBIA GAS OF KENTUCKY, INC. . . . . . . . . . . . . . 55-0139565
COLUMBIA GAS OF MARYLAND, INC. . . . . . . . . . . . . . 25-1093185
COLUMBIA GAS OF OHIO, INC. . . . . . . . . . . . . . . . . 31-0673990
COLUMBIA GAS OF PENNSYLVANIA, INC. . . . . . . . . . . . . 25-1100252
COLUMBIA GAS OF VIRGINIA, INC. . . . . . . . . . . . . . . 54-0344210
200 CIVIC CENTER DRIVE
COLUMBUS, OH 43215
COLUMBIA GULF TRANSMISSION COMPANY . . . . . . . . . . . . 74-1321143
COLUMBIA GAS TRANSMISSION CORPORATION . . . . . . . . . . 31-0802435
12801 FAIR LAKES PARKWAY
FAIRFAX, VA 22030-0146
COMMONWEALTH PROPANE, INC. . . . . . . . . . . . . . . . 54-0146483
COLUMBIA PROPANE CORPORATION . . . . . . . . . . . . . . . 61-0565214
9200 ARBORETUM PARKWAY, SUITE 140
RICHMOND, VA 23236
COLUMBIA NATURAL RESOURCES, INC. . . . . . . . . . . . . 52-1383102
ALAMCO, INC. . . . . . . . . . . . . . . . . . . . . . . 55-0615701
ALAMCO DELAWARE, INC. . . . . . . . . . . . . . . . . . . 51-0356489
HAWG HAULING & DISPOSAL, INC. . . . . . . . . . . . . . . 55-0723936
900 PENNSYLVANIA AVENUE
CHARLESTON, WV 25302
COLUMBIA ENERGY SERVICES CORPORATION . . . . . . . . . . 61-0573109
COLUMBIA ENERGY MARKETING CORPORATION . . . . . . . . . . 25-1770943
COLUMBIA ENERGY POWER MARKETING CORPORATION . . . . . . . 76-0553975
COLUMBIA SERVICE PARTNERS, INC. . . . . . . . . . . . . . 25-1787891
121 HILLPOINTE DRIVE, SUITE 100
CANONSBURG, PA 15317
The parties hereby agree to allocate liabilities and benefits arising from such
consolidated return in the manner prescribed below which is consistent with Rule
45(c) of the Public Utility Holding Company Act of 1935:
(1) Definitions:
"Consolidated tax" is the aggregate current U.S. federal income tax
liability for a tax year, being the tax shown on the consolidated
federal income tax return and any adjustments thereto which are
thereafter determined. If, because of a consolidated net operating
loss, investment tax credit, carrybacks, etc., a refund is due, the
consolidated tax for the current year will be that refund.
"Separate return tax" is the tax on the corporate taxable income or
capital of a company including the effect of any particular feature of
the tax law, differences in tax rates,
<PAGE> 3
Exhibit D
Page 3 of 5
investment tax credits, etc., applicable to it. Separate return tax may
be either positive or negative.
(2) The consolidated tax shall be apportioned among the members of the
group utilizing the "separate return tax" method in the manner
prescribed below:
(a) Intercompany eliminations recorded by consolidation entries
which affect the consolidated tax will be assigned to the
appropriate member necessitating the intercompany elimination
for the purpose of computing separate return tax.
(b) With the exception of the parent corporation, each member of
the group having negative separate return tax will receive
current payment in an amount equal to such negative separate
return tax if that member has sufficient taxable income in the
carryback period to utilize its negative separate return tax.
A member of the group that cannot utilize its negative
separate return tax on a stand alone basis either in the
current period or the permitted carryback period will not
receive payment for their negative separate return tax until
that member generates sufficient taxable income to utilize its
losses. The benefits of the negative separate return tax not
utilized currently by the member will serve to reduce the tax
payment obligation of the positive separate return tax
members. The positive separate return tax member will record a
liability to the parent corporation for this reduction. The
parent corporation will record a liability for the negative
separate return tax to the loss member. Members with a
negative separate return tax will not participate in the
allocation of the parent corporation loss, if applicable, for
that year.
If, because of carryback or other restrictions, the aggregate
of all negative separate return taxes is not entirely usable
in the current year's return, the portion which is usable will
be apportioned among the members having negative separate
return tax in proportion thereto.
(c) Any parent corporation gain or loss realized from its sale of
its interest in subsidiaries" securities will be assigned to
parent corporation and will not be allocated to other members.
All other parent corporation negative separate return tax will
be allocated currently to positive separate return tax members
on the ratio of their positive separate return tax to the
total positive separate return tax.
(d) Each member of the group, after intercompany eliminations,
having positive separate return tax will pay an amount equal
to its proportionate share of the consolidated tax liability
to members having negative separate return tax, for which the
separate return loss was utilized to offset consolidated
taxable
<PAGE> 4
Exhibit D
Page 4 of 5
income, based on the ratio of its separate return tax to the
total of the separate return taxes of members having positive
separate return tax, assuming such loss companies meet the
carryback requirement of sub-section (b) above.
(3) Carryover and other rights, if any, accrued under past regulations and
orders for which a member company has not been paid shall be accounted
for as follows: Each such member generating such benefits shall receive
payment to the earliest year in which statutory carryover periods have
not expired. Payment will be received, following execution of this
agreement, from the companies which benefited from the prior deductions
in the same ratios initially used to distribute such benefits.
(4) In the event the consolidated return reflects a net operating loss or
excess investment tax credit and cannot be totally carried back, the
tax benefit of such net operating loss or excess shall be allowed as a
carryover to future years. In the event they cannot be fully utilized
on a consolidated basis, a proportionate allocation under Section (2)
will be made. If and when the tax benefits are realizable on a
consolidated basis in a subsequent year, such tax benefits shall be
allocated to the members originally denied such benefits in the year
the items were generated.
(5) In the event the consolidated tax is subsequently materially revised by
amended returns, interim payments or refunds, or, in any event, by a
final determination, such changes shall be allocated in the same manner
as though the adjustments on which they are based had formed part of
the original consolidated return. The tax effect of negotiated
adjustments which do not include an item-by-item modification of the
return shall be allocated in accordance with Section (2)(d) of this
agreement or, considering all the facts and circumstances, under such
other method as may be determined to be more fair and equitable.
(6) No subsidiary company, as a result of the method of allocation
described herein, shall be required to pay more tax than its separate
return tax as defined in Section (1).
(7) Any current state income tax liability or benefit associated with a
state income tax return or franchise tax return involving more than one
member shall be allocated to such subsidiaries doing business in such
state based on their separate return liabilities and other principles
set forth herein.
No member is to be allocated a state tax which is greater than its
state tax liability had it filed a separate return, including the
carryback/carryforward period. All available credits are to be
allocated to the member generating the credit prior to the allocation
of the System tax liability if available on a separate return basis.
<PAGE> 5
Exhibit D
Page 5 of 5
Similar to section 2(b) for federal income taxes, a member of the group
that cannot utilize its negative separate return tax on a stand alone
basis either in the current period or permitted carryback period will
not receive payment for their negative separate return tax until that
member generates sufficient taxable income to utilize its losses.
In the event the consolidated state income tax liability for any year
is redetermined subsequent to the allocation of the consolidated tax
liability reported for that tax year, the redetermined tax liability
shall be allocated pursuant to this Agreement as if the adjustments and
modifications related to this determination had been a part of the
original return. Any interest or penalties associated with underpayment
or overpayment of tax shall be allocated based on the allocation of the
underlying underpayment or overpayment of tax.
(8) This agreement shall apply to the consolidated federal and state income
tax returns to be filed for the calendar year 1996 and all subsequent
years unless subsequently amended. In the case of unexpected events,
including changes in the tax laws which may require modifications to
the agreement, amendment to this agreement shall be conditioned on
approval by the Securities and Exchange Commission.
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, the undersigned, duly authorized, have signed this agreement
on behalf of the company(s) indicated.
By:
---------------------------
DATE: December 31, 1997
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
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<SUBSIDIARY>
<NUMBER> 1
<NAME> CEG
<MULTIPLIER> 1,000
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<TOTAL-NET-UTILITY-PLANT> 3,887,400
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<TOTAL-CURRENT-ASSETS> 1,707,700
<TOTAL-DEFERRED-CHARGES> 66,900
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<COMMON> 554,900
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0
0
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0
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<OTHER-OPERATING-EXPENSES> 4,544,200
<TOTAL-OPERATING-EXPENSES> 4,544,200
<OPERATING-INCOME-LOSS> 509,400
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<INCOME-BEFORE-INTEREST-EXPEN> 549,800
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0
<EARNINGS-AVAILABLE-FOR-COMM> 273,300
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<EPS-PRIMARY> 4.93
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</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 1
<NAME> CKY
<MULTIPLIER> 1,000
<S> <C>
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<TOTAL-ASSETS> 180,800
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<TOTAL-COMMON-STOCKHOLDERS-EQ> 66,700
0
0
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0
<CAPITAL-LEASE-OBLIGATIONS> 200
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 113,900
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<INCOME-TAX-EXPENSE> 7,000
<OTHER-OPERATING-EXPENSES> 133,100
<TOTAL-OPERATING-EXPENSES> 133,100
<OPERATING-INCOME-LOSS> 23,100
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0
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<EPS-PRIMARY> 0
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</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 1
<NAME> COH
<MULTIPLIER> 1,000
<S> <C>
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<CAPITAL-SURPLUS-PAID-IN> 0
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<TOTAL-COMMON-STOCKHOLDERS-EQ> 422,500
0
0
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0
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<OTHER-OPERATING-EXPENSES> 1,315,800
<TOTAL-OPERATING-EXPENSES> 1,315,800
<OPERATING-INCOME-LOSS> 110,000
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0
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</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 1
<NAME> CMD
<MULTIPLIER> 1,000
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0
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0
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0
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<TOTAL-INTEREST-ON-BONDS> 0
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<EPS-PRIMARY> 0
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</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 1
<NAME> CPA
<MULTIPLIER> 1,000
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0
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0
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0
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<TABLE> <S> <C>
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<NAME> COS
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0
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0
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0
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</TABLE>
