<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM U5S
ANNUAL REPORT
For the Year Ended December 31, 1999
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
<PAGE> 2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM U5S
ANNUAL REPORT
For the Year Ended December 31, 1999
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
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE NO.
OR
ITEM EXHIBIT
---- -------
<S> <C>
1 System Companies and Investment Therein as of December 31, 1999.................... 3-8
2 Acquisitions or Sales of Utility Assets............................................ 9
3 Issue, Sale, Pledge, Guarantee or Assumption of System Securities.................. 9
4 Acquisition, Redemption or Retirement of System Securities......................... 10-13
5 Investments in Securities of Nonsystem Companies................................... 13
6 Officers and Directors............................................................. 14-80
7 Contributions and Public Relations................................................. 81
8 Service, Sales and Construction Contracts.......................................... 82-84
9 Wholesale Generators and Foreign Utility Companies................................. 85-86
10 Financial Statements and Exhibits.................................................. 87-88
Consolidating Financial Statements................................................. 87(F1 to F6)
Signature of Registrant's Officer.................................................. 89
Exhibits: 90
Securities and Exchange Act of 1934 Reports...................................... A
Index to Corporate Organization & By-Laws Exhibits............................... B
Indentures or Contracts.......................................................... C
Tax Allocation Agreement for 1999................................................ D
Other Documents Prescribed by Rule or Order...................................... E
Report of Independent Public Accountants ........................................ F
Financial Data Tables............................................................ G
Organizational Chart of Exempt Wholesale Generators or Foreign Utility Holding
Companies........................................................................ H
Audited Financial Statements of Exempt Wholesale Generators or Foreign Utility
Holding Companies................................................................ I
</TABLE>
2
<PAGE> 4
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1999
<TABLE>
<CAPTION>
Issuer Owner
% Of Book Book
Number of Common Voting Value Value
Name of Company (Company Abbreviation) Shares Owned Power ($000) ($000)
-------------------------------------- ------------ ----- ------ ------
<S> <C> <C> <C> <C>
Columbia Energy Group (Registrant, CG)
Columbia Gas of Kentucky, Inc. (CKY) .................. 952,248 100.0 78,644 78,644
Unsecured Debt ..................................... -- -- 54,494 54,494
Columbia Gas of Maryland, Inc. (CMD) .................. 2,883 100.0 24,124 24,124
Unsecured Debt ..................................... -- -- 17,819 17,819
Columbia Gas of Ohio, Inc. (COH) ...................... 4,769,585 100.0 437,148 437,148
Unsecured Debt ..................................... -- -- 319,959 319,959
Columbia Gas of Pennsylvania, Inc. (CPA) .............. 1,805,112 100.0 181,219 181,219
Unsecured Debt ..................................... -- -- 188,451 188,451
Columbia Gas of Virginia, Inc. (CGV) ................. 1,306,106 100.0 169,489 169,489
Unsecured Debt ..................................... -- -- 136,667 136,667
Columbia Gas Transmission Corporation (TCO) ........... 1,934 100.0 1,022,297 1,022,297
Unsecured Debt (a) ................................. -- -- -- --
Secured Debt ....................................... -- -- 643,000 643,000
Unconsolidated Affiliate:
Millennium Pipeline Company, L.P.(b) ......... -- 47.5 20,739 20,739
Millennium Pipeline Management Co., L.L.C. (c) -- 47.5 209 209
Columbia Gulf Transmission Company (CGT) .............. 1,993 100.0 113,866 113,866
Unsecured Debt ..................................... -- -- 88,414 88,414
Unconsolidated Affiliates:
Trailblazer Pipeline Corporation (d) ............ -- -- -- --
Columbia Pipeline Corporation (CPL) ................... 1 100.0 337 337
Subsidiary:
Columbia Deep Water Services (CDW) .............. 1 100.0 274 274
Columbia Atlantic Trading Corporation (CAT) ........... 308 100.0 578 578
Columbia Energy Group Service Corporation (CS) ........ 3,000 100.0 300 300
Unsecured Debt ..................................... -- -- 26,176 26,176
Columbia LNG Corporation (CLG) ........................ 3,519 92.1 31,249 31,249
CLNG Corporation (CLNG) ............................ 155 100.0 371 371
Unconsolidated Affiliate:
Cove Point LNG Limited Partnership (e) .......... -- 50.0 14,677 14,677
</TABLE>
3
<PAGE> 5
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1999
<TABLE>
<CAPTION>
Issuer Owner
% Of Book Book
Number of Common Voting Value Value
Name of Company (Company Abbreviation) Shares Owned Power ($000) ($000)
- -------------------------------------- ------------ ----- ------ ------
<S> <C> <C> <C> <C>
Columbia Energy Resources, Inc. (CER) ................ 3 100.0 262,237 262,237
Unsecured Debt ..................................... -- -- 123,850 123,850
Subsidiaries:
Columbia Natural Resources, Inc. (CNR) .......... 2 100.0 249,607 249,607
Unsecured Debt ................................ -- -- 121,850 121,850
Unconsolidated Affiliates:
Clarksburg Gas Limited Partnership (f) ...... -- 2.0 281 281
Hawg Hauling & Disposal, Inc. (HH) .............. 900 100.0 1,035 1,035
Alamco-Delaware, Inc. (AD) ...................... 100 100.0 6,870 6,870
CNR-Canada, Ltd. (CU) ........................... 3 100.0 18,736 18,736
Columbia Propane Corporation (CPC) ................... 1,377 100.0 222,271 222,271
Unsecured Debt ..................................... -- -- 151,662 151,662
Subsidiaries:
Columbia Petroleum Corporation (PET) (g) ........ 1,000 100.0 34,245 34,245
Unsecured Debt .............................. -- -- 23,729 23,729
CP Holdings, Inc. (CPH) (h) ..................... 1,000 100.0 4,413 4,413
Unsecured Debt .............................. -- -- 137,997 137,997
Columbia Propane LP (PLP) (i) ................... -- -- 86,850 86,850
Unsecured Debt .............................. -- -- 137,997 137,997
Unconsolidated Affiliate:
Atlantic Energy, Inc. (AEI) (j) ................ 3,500 50.0 2,003 2,003
Columbia Networks Services Corporation (CNS) ......... 900 100.0 4,275 4,275
Subsidiaries:
CNS Microwave, Inc. (CMC) ....................... 80 100.0 1,034 1,034
EnergyNet, L.L.C. (EN) .......................... -- 100.0 45 45
Columbia Insurance Corporation, Ltd. (CIC) ........... 4,800 100.0 1,144 1,144
Columbia Energy Services Corporation (CES) ........... 421,657 100.0 (132,348) (132,348)
Subsidiaries:
Columbia Energy Marketing Corporation (CEM) ..... 101 100.0 1,696 1,696
Columbia Energy Power Marketing Corporation (CPM) 1 100.0 (2,154) (2,154)
Columbia Energy Retail Corporation (CERC) (k) ... 2,000 100.0 (6,391) (6,391)
Columbia Service Partners, Inc. (CSP) ........... 200 100.0 624 624
Subsidiary:
Columbia Assurance Agency, Inc. (CAA) ........ 850 100.0 10 10
Energy.com (ECC) ................................ 500 100.0 (420) (420)
</TABLE>
4
<PAGE> 6
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1999
<TABLE>
<CAPTION>
Issuer Owner
% Of Book Book
Number of Common Voting Value Value
Name of Company (Company Abbreviation) Shares Owned Power ($000) ($000)
- -------------------------------------- ------------ ----- ------ ------
<S> <C> <C> <C> <C>
Columbia Energy Group Capital Corporation (CCC) ............... 40,001 100.0 48,135 48,135
Subsidiaries:
Columbia Transmission Communications Corporation (CTC) 1 100.0 46,722 46,722
TriStar Gas Technologies, Inc. (TGT) ................. 40,000 100.0 1,375 1,375
Unconsolidated Affiliate:
Enertek Partners, LP (l) ........................... -- 16.5 1,201 1,201
Columbia Finance Corporation (CFC) (m) ........................ 10 100.0 6,928 6,928
Subsidiary:
Columbia Accounts Receivable Corporation (CAR) (n) ....... 10 100.0 6,929 6,929
Columbia Electric Corporation (CEC) ........................... 1,835 100.0 105,171 105,171
Subsidiaries:
Columbia Electric Pedrick General Corporation (CGP) ...... 3,000 100.0 5,396 5,396
Unconsolidated Affiliate:
Pedricktown Cogeneration Limited Partnership (o) .... -- 50.0 145 145
Columbia Electric Pedrick Limited II Corporation (CEPL) .. 1 100.0 6,095 6,095
Unconsolidated Affiliate:
Pedricktown Cogeneration Limited Partnership (o) ..... -- -- 2,026 2,026
Columbia Electric Pedrick General II Corporation (CEPG) .. -- 100.0 -- --
Columbia Electric Pedrick Limited Corporation (CLP) ...... 42 100.0 12,995 12,995
Unconsolidated Affiliate:
Pedricktown Cogeneration Limited Partnership (o) ..... -- -- 5,065 5,065
Columbia Electric Binghamton General Corporation (CBG) ... 118 100.0 281 281
Unconsolidated Affiliate:
Binghamton Cogeneration Limited Partnership (p) ...... -- 33.0 31 31
Columbia Electric Binghamton Limited Corporation (CBL) ... 142 100.0 527 527
Unconsolidated Affiliate:
Binghamton Cogeneration Limited Partnership (p) ...... -- -- 72 72
Columbia Electric Vineland General Corporation (CVG) ..... 2,704 100.0 497 497
Unconsolidated Affiliate:
Vineland Cogeneration Limited Partnership (q) ........ -- 50.0 360 360
Columbia Electric Vineland Limited Corporation (CVL) ..... 2,385 100.0 3,678 3,678
Unconsolidated Affiliate:
Vineland Cogeneration Limited Partnership (q) ........ -- -- 3,239 3,239
Columbia Electric Rumford Limited Corporation (CRL) ...... 1 100.0 5,299 5,299
Unconsolidated Affiliate:
Rumford Cogeneration Company Limited Partnership (r) . -- -- 8,985 8,985
</TABLE>
5
<PAGE> 7
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1999
<TABLE>
<CAPTION>
Issuer Owner
% Of Book Book
Number of Common Voting Value Value
Name of Company (Company Abbreviation) Shares Owned Power ($000) ($000)
- -------------------------------------- ------------ ----- ------ ------
<S> <C> <C> <C> <C>
Columbia Electric Limited Holdings Corporation (CEH) (s) 1,127 100.0 11,106 11,106
Unconsolidated Affiliate:
Gregory Power Partners, L.P. (t) ..................... -- -- 23 23
Gregory Partners LLC (u) ............................. -- -- (464) (464)
Free State Electric LLC (v) .......................... -- -- -- --
Haverstraw Bay LLC (w) ............................... -- -- -- --
Columbia Electric Liberty Member Corporation (CLM) (x) ... -- 100.0 404 404
Unconsolidated Affiliated:
Liberty Electric Power LLC (x) ....................... -- -- -- --
Columbia Electric Gregory General Corporation (CGG) ...... 27 100.0 267 267
Unconsolidated Affiliate:
Gregory Power Partners L.P. (t) ...................... -- 50.0 -- --
Columbia Electric Gregory Remington Corporation (CGR) .... 11 100.0 94 94
Unconsolidated Affiliate:
Gregory Partners LLC (u) ............................. -- 50.0 (9) (9)
Columbia Electric Liberty Corporation(CEL) ............... 3 100.0 36 36
Unconsolidated Affiliate:
Liberty Electric Power LLC(x) ........................ -- 50.0 -- --
Columbia Electric Kelson Corporation (CEK) (v) ........... 4 100.0 40 40
Unconsolidated Affiliate:
Free State Electric LLC (v) .......................... -- 100.0 -- --
Columbia Electric Haverstraw Corporation (CHC) (w) ....... -- 100.0 -- --
Unconsolidated Affiliate:
Haverstraw Bay LLC (w) ............................... -- 100.0 -- --
Columbia Capacity, LLC (CCL) (y) ......................... -- 100.0 16,638 16,638
Columbia Electric Liberty Member II Corporation (LLM) (x) 100.0 -- --
Columbia Electric Liberty II Corporation (LLL) (x) ....... -- 100.0 -- --
Liberty Electric PA LLC (x) .............................. -- 100.0 -- --
Unconsolidated Affiliate:
Cogeneration Partners of America *(z) .................. -- 50.0 -- --
</TABLE>
6
<PAGE> 8
* Inactive
(a) During 1999, debt related to TCO's bankruptcy was retired.
(b) Partnership interest in the Millennium Pipeline Company. Columbia Gas
Transmission Corporation owns 47.5% interest.
(c) Columbia Gas Transmission Corporation owns 47.5% interest of Millennium
Pipeline Management Company, LLC.
(d) In December 1999, Columbia Gulf Transmission Company sold its thirty-three
and one-third percent (33-1/3%) interest in the Trailblazer Pipeline
Corporation.
(e) Partnership interest in Cove Point LNG Limited Partnership. CLNG
Corporation and Cove Point Energy Company, Inc. are each general partners
in the Partnership. Each of the general partners has a one (1%) percent
ownership interest and fifty (50%) percent of the Partnership's voting
power. Columbia LNG Corporation and Pepco Energy Company, Inc. each are
limited partners of the Partnership, holding respectively, forty-nine (49%)
percent ownership interests in the Partnership. The limited partners have
no voting power (except in certain extraordinary situations).
(f) Partnership interest in Clarksburg Gas Limited Partnership. Columbia
Natural Resources, Inc. is a general partner with a 2% interest in the
partnership.
(g) On May 12, 1999, Columbia Propane Corporation acquired the assets of Carlos
Leffler, Inc. for $70,665,038. Columbia Petroleum Corporation was
established to operate the petroleum assets of $55,347,014 acquired in the
transaction. The propane assets of $15,318,024 acquired were assumed by
Columbia Propane Corporation.
(h) CP Holdings, Inc. was established in 1999 as the 100% General Partner to
Columbia Propane LP.
(i) On July 19, 1999, Columbia Propane Corporation purchased the outstanding
units of National Propane, LP (Columbia Propane LP). Columbia Propane
Corporation is the limited partner with 99% partnership interest and
Triarc, Inc., maintaining a 1% limited partnership interest.
(j) Atlantic Energy, Inc. is an unconsolidated subsidiary of Columbia Propane
Corp., accounted for as an investment using the equity method. Columbia
Propane Corp. and Conoco, Inc. each have a fifty percent (50%) ownership
interest in Atlantic Energy.
(k) Columbia Energy Retail Corporation (CERC) was incorporated in the state of
Delaware on October 28, 1998 and capitalized in January 1999. CERC
participates in Natural Gas and Electricity deregulation programs by
selling gas and electricity to residential and small commercial customers.
(l) Partnership interest in Enertek Partners, L.P. (EnerTech). EnerTek is a gas
industry fund that invests in companies developing new technologies to
enhance the supply, transportation and utilization of natural gas. The
limited partners and their ownership interest include Battelle Memorial
Institute (8.26%); Brooklyn Union Gas Company (16.32%), CNG Technologies,
Inc. (16.54%); Enron Venture Capital Company (16.54%); Equitable Resources,
Inc. (8.26%), Southern California Gas Company (16.54%); and TriStar Gas
Technologies, Inc. (16.54%). Scientific Advances, Inc. is the general
partner owning (1.00%).
(m) Columbia Finance Corporation was incorporated in the State of Delaware on
September 20, 1999.
(n) Columbia Accounts Receivable (CAR) Corporation was incorporated in the
State of Delaware on September 20, 1999. CAR is engaged in the purchase and
sale of trade receivables.
(o) Partnership interest in Pedricktown Cogeneration Limited Partnership. On
November 29, 1999, Columbia Electric Pedrick General Corporation (CGP)
created a subsidiary, Columbia Electric Pedrick Limited II Corporation
(CEPL). CEC transferred a 14% general partnership interest into CEPL, and
converted that interest to a limited partnership interest. The general
partners and their respective ownership interests are Pedrick General, Inc.
(15%) and Columbia Electric Pedrick General Corporation (1%). The limited
partners and their respective ownership interests are ATE (35%), Columbia
Electric Pedrick Limited Corporation (35%), and CEPL (14%). Pedrick
General, Inc. is a subsidiary of Atlantic Generation, Inc and ATE is a
subsidiary of Conective.
(p) Columbia Electric Binghamton General Corporation, Binghamton General, Inc.
and S.N.W. Binghamton I, L.P., each of which owns one-third of the thirty
percent (30%) general partnership interest. The limited partners are
Binghamton Limited, Inc.; S.N.W. Binghamton II, L.P.; and Columbia Electric
Binghamton Limited Corporation, each of which owns one-third of the seventy
percent (70%) limited partnership interest. Binghamton General, Inc. and
Binghamton Limited, Inc. are subsidiaries of Atlantic Generation, Inc. and
S.N.W. Binghamton I, L.P. and S.N.W. Binghamton II, L.P. are subsidiaries
of Stone & Webster Development Corp.
(q) Partnership interest in Vineland Cogeneration Limited Partnership. The
general partners are Vineland General, Inc. and Columbia Electric Vineland
General Corporation each of which owns one-half of the ten percent (10%)
general partnership interest. The limited partners are Vineland Limited,
Inc. and Columbia Electric Vineland Limited Corporation, each of which owns
one-half of the ninety percent (90%) limited partnership interest. Vineland
General, Inc. and Vineland Limited, Inc. are subsidiaries of Atlantic
Generation, Inc.
7
<PAGE> 9
(r) Partnership interest in Rumford Cogeneration Company Limited Partnership.
The limited partners and the percent of ownership interest of each include:
Columbia Electric Rumford Limited Corporation (10.2%), UtilCo Group, Inc.
(10.2%), Nichimen America, Inc. (10.2%), Dominion Energy, Inc. (10.2%),
Rumford Power Associates, Inc. (14.1%) and Catamount Rumford Corp. (15.1%).
Rumford Cogeneration, Inc. is the general partner owning 30.0%.
(s) Columbia Electric Limited Holdings Corporation (CEH) owns 100% of Columbia
Electric Liberty Member Corporation (CLM), and maintains limited holdings
in Gregory Power Partners, LP, Gregory Partners LLC, Free State Electric
LLC, and Haverstraw Bay LLC.
(t) Partnership Interest in Gregory Power Partners, L.P. The general partners
are Columbia Electric Gregory General Corporation and LG&E Power Gregory IV
Inc., each of which owns one-half of two percent (2%). The limited partners
are Columbia Electric Limited Holdings Corporation and LG&E Power Gregory I
Inc., each of which owns one-half of ninety-eight percent (98%). LG&E Power
Gregory IV Inc. and LG&E Power Gregory I Inc. are subsidiaries of LG&E
Power.
(u) Partnership Interest in Gregory Partners LLC. The general partners are
Columbia Electric Gregory Remington Corporation and LG&E Power Gregory II
Inc. each of which owns one-half of two percent (2%). The limited partners
are Columbia Electric Limited Holdings Corporation and LG&E Power Gregory
III Inc., each of which owns one-half of ninety-eight percent (98%). LG&E
Power Gregory II Inc. and LG&E Power Gregory III Inc., are subsidiaries of
LG&E Power.
(v) Free State Electric LLC was organized on November 10, 1999 in connection
with the development, ownership, financing, construction, and operating of
a power generation project to be located in Charles County, Maryland. The
general partner is Columbia Electric Kelson Corporation (CEK), which owns
two percent (2%). The limited partner is Columbia Electric Limited Holdings
Corporation (CEH), which owns ninety-eight percent (98%).
(w) Haverstraw Bay LLC was organized on September 14, 1999 in connection with
the development ownership, financing, construction, and operating of a
power generation project to be located in Haverstraw, New York. The general
partner is Columbia Electric Haverstraw Corporation (CHC), which owns two
percent (2%). The limited partner is Columbia Electric Limited Holdings
Corporation (CEH), which owns ninety-eight percent (98%).
(x) Partnership interest in Liberty Electric Power LLC. The general partners
are Columbia Electric Liberty Corporation and Westcoast Energy (U.S.) Inc.,
each of which owns one-half of two percent (2%). On December 23, 1999,
Columbia Electric Limited Holdings Corporation (CEH) created Columbia
Electric Liberty Member Corporation (CLM) and transferred its limited
partnership interest to CLM. The limited partners are CLM and Westcoast
Power (U.S.) Inc., each of which owns one-half of ninety-eight percent
(98%). Westcoast Energy (U.S.) Inc. and Westcoast Power (U.S.) Inc., are
subsidiaries of Westcoast Power, Inc.
(y) Columbia Capacity LLC (CCL) was organized on August 11, 1999 to enter into
a turbine purchase agreement for the purchase of six turbine generating
units to be used in the Eastern Central Area Reliability (ECAR) peaking
project.
(z) Partnership interest in Cogeneration Partners of America. Columbia Electric
Corporation and Atlantic Generation, Inc. each own 50%. Cogneration
Partners of America ceased operations in May 1994. The activities formerly
performed by Cogeneration Partners of America are being performed Columbia
Electric Corporation and Atlantic Generation, Inc.
8
<PAGE> 10
ITEM 2. ACQUISITIONS OR SALES OF UTILITY ASSETS
None.
ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM SECURITIES
CONFIDENTIAL TREATMENT REQUESTED
9
<PAGE> 11
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES DURING 1999
CONFIDENTIAL TREATMENT REQUESTED
10
<PAGE> 12
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES DURING 1999
(Continued)
CONFIDENTIAL TREATMENT REQUESTED
11
<PAGE> 13
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES DURING 1999
(Continued)
CONFIDENTIAL TREATMENT REQUESTED
12
<PAGE> 14
ITEM 4. (Continued)
Notes
CONFIDENTIAL TREATMENT REQUESTED
ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES
CONFIDENTIAL TREATMENT REQUESTED
13
<PAGE> 15
ITEM 6. OFFICERS AND DIRECTORS
Part I. Names, principal business address and positions held as of December 31,
1999.
The names, principal address and positions held as of December 31, 1999 of the
officers and directors of System companies is presented in the tables on pages
16 through 65. The principal business address of each officer and director is
indicated in such tables by the numbers (1) through (36). The addresses
associated with these number designations are shown in the following address
key. The symbols used to indicate the positions held by officers and directors
are shown in the position symbol key below.
Ref.# Address
- ----- -------
1 13880 Dulles Corner Lane, Herndon, Virginia 20171-4600
2 200 Civic Center Drive, Columbus, Ohio 43215
3 10 G Street, NE, Suite 580, Washington, D.C. 20002
4 77 Beachside Avenue, Green Farms, Connecticut 06436
5 2077 Jupiter Hills Lane, Henderson, Nevada 89012
6 10 Harleston Green, Hilton Head, South Carolina 29928
7 62 Sherwood Drive, New Providence, New Jersey 07974
8 One Seagate, Suite 1400, Toledo, Ohio 43653
9 4680 Parkway Drive, Suite 200, Mason, Ohio 45040-5301
10 15501 North Dial Boulevard, Scottsdale, Arizona 85260-1619
11 8905 E. Doughlas Avenue, Wichita, Kansas 67207
12 R. R. No. 1, Box 31D Route 343, Millbrook, New York 12545
13 2603 Augusta, Houston, Texas 77057-5637
14 205 Bricker Hall, 190 North Oval Mall, Columbus, Ohio 43210
15 51 Brams Point Road, Hilton Head, South Carolina 29926
16 1455 Pennsylvania Avenue, Washington, DC 20004
17 9200 Arboretum Parkway, Richmond, Virginia 23236
18 900 Pennsylvania Avenue, Charleston, West Virginia 25302
19 2100 Cove Point Road, Lusby, Maryland 20657
20 14 Brookside Rd., Biltmore Forest, Asheveille, North Carolina 28803
21 No. 4 Bottomley Crescent, New Albany, Ohio 43054
22 509 Preston Avenue, Blacksburg, Virginia 24060
23 12801 Fair Lakes Parkway, Fairfax, Virginia 22030
24 2001 Mercer Road, Lexington, Kentucky 40511
25 9001 Arboretum Parkway, Richmond, Virginia 23235
26 650 Washington Road, Pittsburgh, Pennsylvania 15228-2703
27 505 King Avenue, Columbus, Ohio 43201-2693
28 200 First Street, Suite 1700 Alliant Tower, Cedar Rapids, Iowa 52401
29 P.O. Box 2197, Houston, Texas 77252
30 P.O. Box 278, 225 E. Main Street, Richland, Pennsylvania 17087-0278
31 5501 Frantz Road, Dublin, Ohio 43017
32 1330 Post Oak Boulevard, 20th Floor, Houston, Texas 77056
33 921 Easwind Drive, Suite 112, Westerville, Ohio 43081
34 1700 MacCorkle Avenue, S.E., Charleston, West Virginia 23236
35 1600 Dublin Road, Columbus, Ohio 43215
36 Site 29, Box 21, RR No. 12, Calgary, Alberta T3E6W3
14
<PAGE> 16
POSITION KEY CODE
KEY
<TABLE>
<S> <C> <C>
CB - Chairman of the Board CLO - Chief Legal Officer S - Secretary
D - Director P - President C - Controller
CEO - Chief Executive Officer SVP - Senior Vice President GA - General Auditor
COO - Chief Operating Officer VP - Vice President GC - General Counsel
CFO - Chief Financial Officer T - Treasurer
</TABLE>
15
<PAGE> 17
ITEM 6. Continued
<TABLE>
<CAPTION>
CKY COH CMD CPA CGV CBG CLG CLNG CER CNR HH AD
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Catherine G. Abbott
Fairfax, Virginia (23)
Carolyn M. Afshar
Herndon, Virginia (1)
Richard F. Albosta D
New Providence, New Jersey (7)
Philip R. Aldridge
Herndon, Virginia (1)
Steven R. Anastasio
Herndon, Virginia (1)
Michael Ashford
Herndon, Virginia (1)
Gary W. Babin VP
Columbus, Ohio (2)
Ross E. Bailey
Herndon, Virginia (1)
Theresa A. Balog VP VP VP VP
Columbus, Ohio (2)
Gary A. Barnard
Charleston, West Virginia (34)
T. Jay. Barrymore S S
Herndon, Virginia (1)
Laura M. Bateman VP
Richmond, Virginia (25) D
Richard W. Beardsley VP
Charleston, West Virginia (18) D
Margaret W. Beasley
Richmond, Virginia (17)
Robert H. Beeby D
Green Farms, Connecticut (4)
Napoleon A. Bell D
Henderson, Nevada (5)
</TABLE>
16
<PAGE> 18
ITEM 6. Continued
<TABLE>
<CAPTION>
CU CIC CG CPC PET CPH AEI CES CEM CPM CSP CAA
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Catherine G. Abbott
Fairfax, Virginia (23)
Carolyn M. Afshar S
Herndon, Virginia (1)
Richard F. Albosta D
New Providence, New Jersey (7)
Philip R. Aldridge T
Herndon, Virginia (1)
Steven R. Anastasio
Herndon, Virginia (1)
Michael Ashford S
Herndon, Virginia (1)
Gary W. Babin
Columbus, Ohio (2)
Ross E. Bailey
Herndon, Virginia (1)
Theresa A. Balog
Columbus, Ohio (2)
Gary A. Barnard
Charleston, West Virginia (34)
T. Jay. Barrymore
Herndon, Virginia (1)
Laura M. Bateman
Richmond, Virginia (25)
Richard W. Beardsley VP
Charleston, West Virginia (18)
Margaret W. Beasley S
Richmond, Virginia (17)
Robert H. Beeby D
Green Farms, Connecticut (4)
Napoleon A. Bell
Henderson, Nevada (5)
</TABLE>
17
<PAGE> 19
ITEM 6. Continued
<TABLE>
<CAPTION>
ECC CERC CCC CTC TGT CNS CMC EN CPL CDW CAT CEC CGP
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Catherine G. Abbott D D D
Fairfax, Virginia (23)
Carolyn M. Afshar
Herndon, Virginia (1)
Richard F. Albosta
New Providence, New Jersey (7)
Philip R. Aldridge P P P P P P D
Herndon, Virginia (1) D D P
Steven R. Anastasio
Herndon, Virginia (1)
Michael Ashford
Herndon, Virginia (1)
Gary W. Babin
Columbus, Ohio (2)
Ross E. Bailey
Herndon, Virginia (1)
Theresa A. Balog
Columbus, Ohio (2)
Gary A. Barnard C C
Charleston, West Virginia (34)
T. Jay. Barrymore
Herndon, Virginia (1)
Laura M. Bateman
Richmond, Virginia (25)
Richard W. Beardsley
Charleston, West Virginia (18)
Margaret W. Beasley
Richmond, Virginia (17)
Robert H. Beeby
Green Farms, Connecticut (4)
Napoleon A. Bell
Henderson, Nevada (5)
</TABLE>
18
<PAGE> 20
ITEM 6. Continued
<TABLE>
<CAPTION>
CEPL CEPG CGT TCO CLP CBL CVG CVL CRL CEH CLM CGG
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Catherine G. Abbott D D
Fairfax, Virginia (23) CEO CEO, P
Carolyn M. Afshar
Herndon, Virginia (1)
Richard F. Albosta
New Providence, New Jersey (7)
Philip R. Aldridge
Herndon, Virginia (1)
Steven R. Anastasio
Herndon, Virginia (1)
Michael Ashford
Herndon, Virginia (1)
Gary W. Babin
Columbus, Ohio (2)
Ross E. Bailey
Herndon, Virginia (1)
Theresa A. Balog
Columbus, Ohio (2)
Gary A. Barnard T T
Charleston, West Virginia (34) C C
T. Jay. Barrymore
Herndon, Virginia (1)
Laura M. Bateman
Richmond, Virginia (25)
Richard W. Beardsley
Charleston, West Virginia (18)
Margaret W. Beasley
Richmond, Virginia (17)
Robert H. Beeby
Green Farms, Connecticut (4)
Napoleon A. Bell
Henderson, Nevada (5)
</TABLE>
19
<PAGE> 21
ITEM 6. Continued
<TABLE>
<CAPTION>
CGR CEL CEK CHC CCL LLM LLL CFC CAR CS
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Catherine G. Abbott D
Fairfax, Virginia (23)
Carolyn M. Afshar S
Herndon, Virginia (1)
Richard F. Albosta
New Providence, New Jersey (7)
Philip R. Aldridge P D VP
Herndon, Virginia (1) T
Steven R. Anastasio VP
Herndon, Virginia (1)
Michael Ashford
Herndon, Virginia (1)
Gary W. Babin
Columbus, Ohio (2)
Ross E. Bailey VP
Herndon, Virginia (1)
Theresa A. Balog
Columbus, Ohio (2)
Gary A. Barnard
Charleston, West Virginia (34)
T. Jay. Barrymore
Herndon, Virginia (1)
Laura M. Bateman
Richmond, Virginia (25)
Richard W. Beardsley
Charleston, West Virginia (18)
Margaret W. Beasley
Richmond, Virginia (17)
Robert H. Beeby
Green Farms, Connecticut (4)
Napoleon A. Bell
Henderson, Nevada (5)
</TABLE>
20
<PAGE> 22
ITEM 6. Continued
<TABLE>
<CAPTION>
CKY COH CMD CPA CGV CBG CLG CLNG CER CNR HH AD
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Mary C. Bloom
Herndon, Virginia (1)
Melissa E. Bockelmann VP VP
Herndon, Virginia (1)
Douglas G. Borror D
Dublin, Ohio (31)
Debbie S. Bowyer T
Charleston, West Virginia (18)
Andrew Mason Brent
Richmond, Virginia (17)
L. Michael Bridges CEO CEO
Herndon, Virginia (1) P, D P, D
Wilson K. Cadman D
Wichita, Kansas (11)
Reginald L. Carter SVP
Columbus, Ohio (2)
Richard A. Casali
Washington, DC (3)
Michael Casdorph
Charleston, West Virginia (34)
Shawn E. Casey VP
Charleston, West Virginia (18) D
Mark A. Chandler VP VP, D T VP
Charleston, West Virginia (18) T CFO D T, D
Kenneth W. Christman GC GC
Pittsburgh, Pennsylvania (26) D D
Mark A. Cleaves
Richmond, Virginia (17)
Neil K. Cody
Herndon, Virginia (1)
Elden Condie
Herndon, Virginia (1)
Mark C. Darrell GC
Richmond, Virginia (25) D
</TABLE>
21
<PAGE> 23
ITEM 6. Continued
<TABLE>
<CAPTION>
CU CIC CG CPC PET CPH AEI CES CEM CPM CSP CAA
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Mary C. Bloom
Herndon, Virginia (1)
Melissa E. Bockelmann
Herndon, Virginia (1)
Douglas G. Borror
Dublin, Ohio (31)
Debbie S. Bowyer T
Charleston, West Virginia (18)
Andrew Mason Brent D D D CB
Richmond, Virginia (17) P,CEO P,CEO D
L. Michael Bridges
Herndon, Virginia (1)
Wilson K. Cadman D
Wichita, Kansas (11)
Reginald L. Carter
Columbus, Ohio (2)
Richard A. Casali
Washington, DC (3)
Michael Casdorph
Charleston, West Virginia (34)
Shawn E. Casey VP
Charleston, West Virginia (18)
Mark A. Chandler CFO
Charleston, West Virginia (18) VP, D
Kenneth W. Christman
Pittsburgh, Pennsylvania (26)
Mark A. Cleaves VP VP
Richmond, Virginia (17)
Neil K. Cody
Herndon, Virginia (1)
Elden Condie VP
Herndon, Virginia (1)
Mark C. Darrell
Richmond, Virginia (25)
</TABLE>
22
<PAGE> 24
ITEM 6. Continued
<TABLE>
<CAPTION>
ECC CERC CCC CTC TGT CNS CMC EN CPL CDW CAT CEC CGP
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Mary C. Bloom
Herndon, Virginia (1)
Melissa E. Bockelmann
Herndon, Virginia (1)
Douglas G. Borror
Dublin, Ohio (31)
Debbie S. Bowyer
Charleston, West Virginia (18)
Andrew Mason Brent
Richmond, Virginia (17)
L. Michael Bridges P
Herndon, Virginia (1) CEO,D
Wilson K. Cadman
Wichita, Kansas (11)
Reginald L. Carter
Columbus, Ohio (2)
Richard A. Casali
Washington, DC (3)
Michael Casdorph
Charleston, West Virginia (34)
Shawn E. Casey
Charleston, West Virginia (18)
Mark A. Chandler
Charleston, West Virginia (18)
Kenneth W. Christman
Pittsburgh, Pennsylvania (26)
Mark A. Cleaves
Richmond, Virginia (17)
Neil K. Cody VP
Herndon, Virginia (1)
Elden Condie
Herndon, Virginia (1)
Mark C. Darrell
Richmond, Virginia (25)
</TABLE>
23
<PAGE> 25
ITEM 6. Continued
<TABLE>
<CAPTION>
CEPL CEPG CGT TCO CLP CBL CVG CVL CRL CEH CLM CGG
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Mary C. Bloom
Herndon, Virginia (1)
Melissa E. Bockelmann VP VP
Herndon, Virginia (1)
Douglas G. Borror
Dublin, Ohio (31)
Debbie S. Bowyer
Charleston, West Virginia (18)
Andrew Mason Brent
Richmond, Virginia (17)
L. Michael Bridges
Herndon, Virginia (1)
Wilson K. Cadman
Wichita, Kansas (11)
Reginald L. Carter
Columbus, Ohio (2)
Richard A. Casali
Washington, DC (3)
Michael Casdorph SVP
Charleston, West Virginia (34)
Shawn E. Casey
Charleston, West Virginia (18)
Mark A. Chandler
Charleston, West Virginia (18)
Kenneth W. Christman
Pittsburgh, Pennsylvania (26)
Mark A. Cleaves
Richmond, Virginia (17)
Neil K. Cody VP VP VP VP
Herndon, Virginia (1)
Elden Condie
Herndon, Virginia (1)
Mark C. Darrell
Richmond, Virginia (25)
</TABLE>
24
<PAGE> 26
ITEM 6. Continued
<TABLE>
<CAPTION>
CGR CEL CEK CHC CCL LLM LLL CFC CAR CS
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Mary C. Bloom VP
Herndon, Virginia (1)
Melissa E. Bockelmann
Herndon, Virginia (1)
Douglas G. Borror
Dublin, Ohio (31)
Debbie S. Bowyer
Charleston, West Virginia (18)
Andrew Mason Brent
Richmond, Virginia (17)
L. Michael Bridges
Herndon, Virginia (1)
Wilson K. Cadman
Wichita, Kansas (11)
Reginald L. Carter
Columbus, Ohio (2)
Richard A. Casali VP
Washington, DC (3)
Michael Casdorph
Charleston, West Virginia (34)
Shawn E. Casey
Charleston, West Virginia (18)
Mark A. Chandler
Charleston, West Virginia (18)
Kenneth W. Christman
Pittsburgh, Pennsylvania (26)
Mark A. Cleaves
Richmond, Virginia (17)
Neil K. Cody VP VP VP VP
Herndon, Virginia (1) D
Elden Condie
Herndon, Virginia (1)
Mark C. Darrell
Richmond, Virginia (25)
</TABLE>
25
<PAGE> 27
ITEM 6. Continued
<TABLE>
<CAPTION>
CKY COH CMD CPA CGV CBG CLG CLNG CER CNR HH AD
---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Rene Dartez
Houston, Texas (13)
Clay Deaton
Houston, Texas (32)
Robert L. Dennis VP VP VP VP VP VP VP VP VP VP
Herndon, Virginia (1)
Dennis P. Detar CFO
Herndon, Virginia (1) T
Bruce M. Diamond
Herndon, Virginia (1)
James H. Dissen VP
Charleston, West Virginia (18) D
Sheree L. Parks Downey
Charleston, West Virginia (34)
Scott S. Eblin
Fairfax, Virginia (23)
Benga L. Farina
Herndon, Virginia (1)
John T. Fay
Herndon, Virginia (1)
Mark A. Ferman VP
Charleston, West Virginia (18) D
Sharon O. Flanery
Charleston, West Virginia (34)
Louis E. Font
Herndon, Virginia (1)
Michael J. Fox
Herndon, Virginia (1)
Donato Furlano
Herndon, Virginia (1)
V. M. Galio
Charleston, West Virginia (34)
Phil Glaessner
Houston, Texas (32)
</TABLE>
26
<PAGE> 28
ITEM 6. Continued
<TABLE>
<CAPTION>
CU CIC CG CPC PET CPH AEI CES CEM CPM CSP CAA
---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Rene Dartez
Houston, Texas (13)
Clay Deaton VP VP VP
Houston, Texas (32)
Robert L. Dennis VP VP VP VP VP VP VP VP VP VP
Herndon, Virginia (1)
Dennis P. Detar
Herndon, Virginia (1)
Bruce M. Diamond
Herndon, Virginia (1)
James H. Dissen VP
Charleston, West Virginia (18)
Sheree L. Parks Downey
Charleston, West Virginia (34)
Scott S. Eblin
Fairfax, Virginia (23)
Benga L. Farina
Herndon, Virginia (1)
John T. Fay
Herndon, Virginia (1)
Mark A. Ferman VP
Charleston, West Virginia (18)
Sharon O. Flanery
Charleston, West Virginia (34)
Louis E. Font
Herndon, Virginia (1)
Michael J. Fox
Herndon, Virginia (1)
Donato Furlano
Herndon, Virginia (1)
V. M. Galio
Charleston, West Virginia (34)
Phil Glaessner SVP SVP SVP
Houston, Texas (32)
</TABLE>
27
<PAGE> 29
ITEM 6. Continued
<TABLE>
<CAPTION>
ECC CERC CCC CTC TGT CNS CMC EN CPL CDW CAT CEC CGP
-------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Rene Dartez
Houston, Texas (13)
Clay Deaton
Houston, Texas (32)
Robert L. Dennis VP VP VP VP VP VP VP VP VP VP VP VP VP
Herndon, Virginia (1)
Dennis P. Detar CFO CFO
Herndon, Virginia (1) T T
Bruce M. Diamond
Herndon, Virginia (1)
James H. Dissen
Charleston, West Virginia (18)
Sheree L. Parks Downey
Charleston, West Virginia (34)
Scott S. Eblin
Fairfax, Virginia (23)
Benga L. Farina S
Herndon, Virginia (1)
John T. Fay
Herndon, Virginia (1)
Mark A. Ferman
Charleston, West Virginia (18)
Sharon O. Flanery S
Charleston, West Virginia (34)
Louis E. Font
Herndon, Virginia (1)
Michael J. Fox VP
Herndon, Virginia (1)
Donato Furlano T T
Herndon, Virginia (1)
V. M. Galio
Charleston, West Virginia (34)
Phil Glaessner
Houston, Texas (32)
</TABLE>
28
<PAGE> 30
ITEM 6. Continued
<TABLE>
<CAPTION>
CEPL CEPG CGT TCO CLP CBL CVG CVL CRL CEH CLM CGG
-------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Rene Dartez VP
Houston, Texas (13)
Clay Deaton
Houston, Texas (32)
Robert L. Dennis VP VP VP VP VP VP VP VP VP VP
Herndon, Virginia (1)
Dennis P. Detar CFO CFO CFO CFO CFO CFO CFO CFO CFO CFO
Herndon, Virginia (1) T T T T T T T T T T
Bruce M. Diamond
Herndon, Virginia (1)
James H. Dissen
Charleston, West Virginia (18)
Sheree L. Parks Downey VP
Charleston, West Virginia (34)
Scott S. Eblin VP VP
Fairfax, Virginia (23)
Benga L. Farina
Herndon, Virginia (1)
John T. Fay
Herndon, Virginia (1)
Mark A. Ferman
Charleston, West Virginia (18)
Sharon O. Flanery
Charleston, West Virginia (34)
Louis E. Font
Herndon, Virginia (1)
Michael J. Fox VP
Herndon, Virginia (1)
Donato Furlano
Herndon, Virginia (1)
V. M. Galio VP
Charleston, West Virginia (34)
Phil Glaessner
Houston, Texas (32)
</TABLE>
29
<PAGE> 31
ITEM 6. Continued
<TABLE>
<CAPTION>
CGR CEL CEK CHC CCL LLM LLL CFC CAR CS
-------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Rene Dartez
Houston, Texas (13)
Clay Deaton
Houston, Texas (32)
Robert L. Dennis VP VP VP VP VP VP VP VP VP
Herndon, Virginia (1)
Dennis P. Detar CFO CFO CFO CFO CFO CFO CFO
Herndon, Virginia (1) T T T T T T T
Bruce M. Diamond VP
Herndon, Virginia (1)
James H. Dissen
Charleston, West Virginia (18)
Sheree L. Parks Downey
Charleston, West Virginia (34)
Scott S. Eblin
Fairfax, Virginia (23)
Benga L. Farina
Herndon, Virginia (1)
John T. Fay VP
Herndon, Virginia (1)
Mark A. Ferman
Charleston, West Virginia (18)
Sharon O. Flanery
Charleston, West Virginia (34)
Louis E. Font SVP
Herndon, Virginia (1) D
Michael J. Fox VP VP VP
Herndon, Virginia (1)
Donato Furlano
Herndon, Virginia (1)
V. M. Galio
Charleston, West Virginia (34)
Phil Glaessner
Houston, Texas (32)
</TABLE>
30
<PAGE> 32
ITEM 6. Continued
<TABLE>
<CAPTION>
CKY COH CMD CPA CGV CBG CLG CLNG CER CNR HH AD
---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Dr. Michael J. Gluckman CEO
Herndon, Virginia (1) P,D
Stephen E. Greene VP
Columbus, Ohio (2)
Jeffrey W. Grossman
Herndon, Virginia (1)
Frederick R. Gumbinner S
Herndon, Virginia (1) D
Gerald T. Gwaltney
Richmond, Virginia (17)
Patricia A. Hammick
Herndon, Virginia (1)
Janis L. Hannuksela T
Richmond, Virginia (25)
William H. Harmon CEO CEO P P
Charleston, West Virginia (18) P,D P,D D D
James W. Hart, Jr.
Houston, Texas (13)
Edward D. Harvey, Jr.
Herndon, Virginia (1)
Sharon B. Heaton
Herndon, Virginia (1)
W. F. Hederman
Fairfax, Virginia (23)
James P. Heffernan D
Millbrook, New York (12)
Karen L. Hendricks D
Mason, Ohio (9)
Charles P. Hollands
Herndon, Virginia (1)
Malcolm T. Hopkins D
Asheville, North Carolina (20)
John Hritcko, Jr. D
Herndon, Virginia (1)
</TABLE>
31
<PAGE> 33
ITEM 6. Continued
<TABLE>
<CAPTION>
CU CIC CG CPC PET CPH AEI CES CEM CPM CSP CAA
--------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Dr. Michael J. Gluckman
Herndon, Virginia (1)
Stephen E. Greene
Columbus, Ohio (2)
Jeffrey W. Grossman D VP
Herndon, Virginia (1) C
Frederick R. Gumbinner
Herndon, Virginia (1)
Gerald T. Gwaltney VP
Richmond, Virginia (17)
Patricia A. Hammick
Herndon, Virginia (1)
Janis L. Hannuksela
Richmond, Virginia (25)
William H. Harmon CEO
Charleston, West Virginia (18) P,D
James W. Hart, Jr.
Houston, Texas (13)
Edward D. Harvey, Jr. T
Herndon, Virginia (1)
Sharon B. Heaton D D D
Herndon, Virginia (1) VP
W. F. Hederman
Fairfax, Virginia (23)
James P. Heffernan D
Millbrook, New York (12)
Karen L. Hendricks D
Mason, Ohio (9)
Charles P. Hollands
Herndon, Virginia (1)
Malcolm T. Hopkins D
Asheville, North Carolina (20)
John Hritcko, Jr.
Herndon, Virginia (1)
</TABLE>
32
<PAGE> 34
ITEM 6. Continued
<TABLE>
<CAPTION>
ECC CERC CCC CTC TGT CNS CMC EN CPL CDW CAT CEC CGP
-------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Dr. Michael J. Gluckman CEO CEO
Herndon, Virginia (1) P,D P,D
Stephen E. Greene
Columbus, Ohio (2)
Jeffrey W. Grossman T C T T T T
Herndon, Virginia (1) D
Frederick R. Gumbinner S S
Herndon, Virginia (1) D
Gerald T. Gwaltney
Richmond, Virginia (17)
Patricia A. Hammick D D D
Herndon, Virginia (1)
Janis L. Hannuksela
Richmond, Virginia (25)
William H. Harmon
Charleston, West Virginia (18)
James W. Hart, Jr. VP VP
Houston, Texas (13)
Edward D. Harvey, Jr. T
Herndon, Virginia (1)
Sharon B. Heaton S D S S
Herndon, Virginia (1)
W. F. Hederman
Fairfax, Virginia (23)
James P. Heffernan
Millbrook, New York (12)
Karen L. Hendricks
Mason, Ohio (9)
Charles P. Hollands
Herndon, Virginia (1)
Malcolm T. Hopkins
Asheville, North Carolina (20)
John Hritcko, Jr.
Herndon, Virginia (1)
</TABLE>
33
<PAGE> 35
ITEM 6. Continued
<TABLE>
<CAPTION>
CEPL CEPG CGT TCO CLP CBL CVG CVL CRL CEH CLM CGG
-------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Dr. Michael J. Gluckman CEO CEO CEO CEO CEO CEO CEO CEO CEO CEO
Herndon, Virginia (1) P,D P,D P,D P,D P,D P,D P,D P,D P,D P,D
Stephen E. Greene
Columbus, Ohio (2)
Jeffrey W. Grossman
Herndon, Virginia (1)
Frederick R. Gumbinner S S S S S S S S S S
Herndon, Virginia (1) D D D D D D D D D D
Gerald T. Gwaltney
Richmond, Virginia (17)
Patricia A. Hammick
Herndon, Virginia (1)
Janis L. Hannuksela
Richmond, Virginia (25)
William H. Harmon
Charleston, West Virginia (18)
James W. Hart, Jr. VP
Houston, Texas (13)
Edward D. Harvey, Jr.
Herndon, Virginia (1)
Sharon B. Heaton
Herndon, Virginia (1)
W. F. Hederman VP
Fairfax, Virginia (23)
James P. Heffernan
Millbrook, New York (12)
Karen L. Hendricks
Mason, Ohio (9)
Charles P. Hollands
Herndon, Virginia (1)
Malcolm T. Hopkins
Asheville, North Carolina (20)
John Hritcko, Jr.
Herndon, Virginia (1)
</TABLE>
34
<PAGE> 36
ITEM 6. Continued
<TABLE>
<CAPTION>
CGR CEL CEK CHC CCL LLM LLL CFC CAR CS
-------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Dr. Michael J. Gluckman CEO CEO CEO CEO CEO CEO CEO
Herndon, Virginia (1) P,D P,D P,D P,D P,D P,D P,D
Stephen E. Greene
Columbus, Ohio (2)
Jeffrey W. Grossman T T VP
Herndon, Virginia (1) C
Frederick R. Gumbinner S S S S S S
Herndon, Virginia (1) D D D D D D
Gerald T. Gwaltney
Richmond, Virginia (17)
Patricia A. Hammick SVP
Herndon, Virginia (1) D
Janis L. Hannuksela
Richmond, Virginia (25)
William H. Harmon
Charleston, West Virginia (18)
James W. Hart, Jr.
Houston, Texas (13)
Edward D. Harvey, Jr.
Herndon, Virginia (1)
Sharon B. Heaton S GC
Herndon, Virginia (1) VP
W. F. Hederman
Fairfax, Virginia (23)
James P. Heffernan
Millbrook, New York (12)
Karen L. Hendricks
Mason, Ohio (9)
Charles P. Hollands P
Herndon, Virginia (1)
Malcolm T. Hopkins
Asheville, North Carolina (20)
John Hritcko, Jr.
Herndon, Virginia (1)
</TABLE>
35
<PAGE> 37
ITEM 6. Continued
<TABLE>
<CAPTION>
CKY COH CMD CPA CGV CBG CLG CLNG CER CNR HH AD
--------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Thomas L. Hughes
Herndon, Virginia (1)
Cynthia Jones-Hundley VP
Columbus, Ohio (2)
Philip J. Iracane VP
Richmond, Virginia (25) D
Edward P. Jarmas
Herndon, Virginia (1)
James A. Jarrell
Fairfax, Virginia (23)
Mike A. John VP
Charleston, West Virginia (18) D
C. D. Johnson
Calgary, Alberta, Canada (36)
J. Bennett Johnston D
Washington, D.C. (16)
Malcolm Jozoff D
Scottsdale, Arizona (10)
Joseph W. Kelly VP
Lexington, Kentucky (24) COO,D
Charlotte P. Kessler D
New Albany, Ohio (21)
Glen L. Kettering
Fairfax, Virginia (23)
William E. Kirwan D
Columbus, Ohio (14)
Fredrick G. Kolb VP VP VP VP
Charleston, West Virginia (18) D D
Marshall D. Lang
Fairfax, Virginia (23)
Nancy Laranjo
Herndon, Virginia (1)
William E. Lavery D
Blacksburg, Virginia (22)
</TABLE>
36
<PAGE> 38
ITEM 6. Continued
<TABLE>
<CAPTION>
CU CIC CG CPC PET CPH AEI CES CEM CPM CSP CAA
---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Thomas L. Hughes
Herndon, Virginia (1)
Cynthia Jones-Hundley
Columbus, Ohio (2)
Philip J. Iracane
Richmond, Virginia (25)
Edward P. Jarmas
Herndon, Virginia (1)
James A. Jarrell
Fairfax, Virginia (23)
Mike A. John VP
Charleston, West Virginia (18)
C. D. Johnson D
Calgary, Alberta, Canada (36)
J. Bennett Johnston D
Washington, D.C. (16)
Malcolm Jozoff D
Scottsdale, Arizona (10)
Joseph W. Kelly
Lexington, Kentucky (24)
Charlotte P. Kessler
New Albany, Ohio (21)
Glen L. Kettering
Fairfax, Virginia (23)
William E. Kirwan
Columbus, Ohio (14)
Fredrick G. Kolb VP VP
Charleston, West Virginia (18)
Marshall D. Lang
Fairfax, Virginia (23)
Nancy Laranjo VP
Herndon, Virginia (1)
William E. Lavery D
Blacksburg, Virginia (22)
</TABLE>
37
<PAGE> 39
ITEM 6. Continued
<TABLE>
<CAPTION>
ECC CERC CCC CTC TGT CNS CMC EN CPL CDW CAT CEC CGP
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Thomas L. Hughes
Herndon, Virginia (1)
Cynthia Jones-Hundley
Columbus, Ohio (2)
Philip J. Iracane
Richmond, Virginia (25)
Edward P. Jarmas VP
Herndon, Virginia (1)
James A. Jarrell
Fairfax, Virginia (23)
Mike A. John
Charleston, West Virginia (18)
C. D. Johnson
Calgary, Alberta, Canada (36)
J. Bennett Johnston
Washington, D.C. (16)
Malcolm Jozoff
Scottsdale, Arizona (10)
Joseph W. Kelly
Lexington, Kentucky (24)
Charlotte P. Kessler
New Albany, Ohio (21)
Glen L. Kettering
Fairfax, Virginia (23)
William E. Kirwan
Columbus, Ohio (14)
Fredrick G. Kolb VP
Charleston, West Virginia (18)
Marshall D. Lang
Fairfax, Virginia (23)
Nancy Laranjo
Herndon, Virginia (1)
William E. Lavery
Blacksburg, Virginia (22)
</TABLE>
38
<PAGE> 40
ITEM 6. Continued
<TABLE>
<CAPTION>
CEPL CEPG CGT TCO CLP CBL CVG CVL CRL CEH CLM CGG
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Thomas L. Hughes
Herndon, Virginia (1)
Cynthia Jones-Hundley
Columbus, Ohio (2)
Philip J. Iracane
Richmond, Virginia (25)
Edward P. Jarmas
Herndon, Virginia (1)
James A. Jarrell S
Fairfax, Virginia (23) GC
Mike A. John
Charleston, West Virginia (18)
C. D. Johnson
Calgary, Alberta, Canada (36)
J. Bennett Johnston
Washington, D.C. (16)
Malcolm Jozoff
Scottsdale, Arizona (10)
Joseph W. Kelly
Lexington, Kentucky (24)
Charlotte P. Kessler
New Albany, Ohio (21)
Glen L. Kettering D
Fairfax, Virginia (23) SVP
William E. Kirwan
Columbus, Ohio (14)
Fredrick G. Kolb
Charleston, West Virginia (18)
Marshall D. Lang VP
Fairfax, Virginia (23)
Nancy Laranjo
Herndon, Virginia (1)
William E. Lavery
Blacksburg, Virginia (22)
</TABLE>
39
<PAGE> 41
ITEM 6. Continued
<TABLE>
<CAPTION>
CGR CEL CEK CHC CCL LLM LLL CFC CAR CS
-------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Thomas L. Hughes VP
Herndon, Virginia (1)
Cynthia Jones-Hundley
Columbus, Ohio (2)
Philip J. Iracane
Richmond, Virginia (25)
Edward P. Jarmas
Herndon, Virginia (1)
James A. Jarrell
Fairfax, Virginia (23)
Mike A. John
Charleston, West Virginia (18)
C. D. Johnson
Calgary, Alberta, Canada (36)
J. Bennett Johnston
Washington, D.C. (16)
Malcolm Jozoff
Scottsdale, Arizona (10)
Joseph W. Kelly
Lexington, Kentucky (24)
Charlotte P. Kessler
New Albany, Ohio (21)
Glen L. Kettering
Fairfax, Virginia (23)
William E. Kirwan
Columbus, Ohio (14)
Fredrick G. Kolb
Charleston, West Virginia (18)
Marshall D. Lang
Fairfax, Virginia (23)
Nancy Laranjo
Herndon, Virginia (1)
William E. Lavery
Blacksburg, Virginia (22)
</TABLE>
40
<PAGE> 42
ITEM 6. Continued
<TABLE>
<CAPTION>
CKY COH CMD CPA CGV CBG CLG CLNG CER CNR HH AD
--- --- --- --- --- --- --- ---- --- --- -- --
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
James R. Lee SVP SVP SVP SVP SVP
Columbus, Ohio (2)
Edward R. Lincoln C
Charleston, West Virginia (18)
Christopher J. Lord
Herndon, Virginia (1)
Clayton Thomas Lowrie
Richmond, Virginia (17)
David L. Lugar
Houston, Texas (29)
Stephen T. MacQueen C C
Lusby, Maryland (19) D
Philip L. Magley
Herndon, Virginia (1)
Kenneth H. Marks, Jr.
Herndon, Virginia (1)
W. Harris Marple
Houston, Texas (13)
Gerald E. Mayo D
Hilton Head, South Carolina (15)
Don McClure
Herndon, Virginia (1)
Dennis W. McFarland T SVP
Columbus, Ohio (2) T
James A. McGehee, Jr.
Richmond, Virginia (17)
Terrance L. McGill
Houston, Texas (13)
Steve R. Melton
Houston, Texas (13)
Jeffrey A. Meyers
Columbus, Ohio (35)
Ellen L. Milnes VP
Columbus, Ohio (2)
</TABLE>
41
<PAGE> 43
ITEM 6. Continued
<TABLE>
<CAPTION>
CU CIC CG CPC PET CPH AEI CES CEM CPM CSP CAA
-- --- -- --- --- --- --- --- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
James R. Lee
Columbus, Ohio (2)
Edward R. Lincoln C
Charleston, West Virginia (18)
Christopher J. Lord
Herndon, Virginia (1)
Clayton Thomas Lowrie VP
Richmond,Virginia (17)
David L. Lugar P
Houston, Texas (29) D
Stephen T. MacQueen
Lusby, Maryland (19)
Philip L. Magley
Herndon, Virginia (1)
Kenneth H. Marks, Jr. S
Herndon, Virginia (1)
W. Harris Marple
Houston, Texas (13)
Gerald E. Mayo D
Hilton Head, South Carolina (15)
Don McClure CFO CFO CFO CFO D
Herndon, Virginia (1) D, T D, T D, T D
Dennis W. McFarland
Columbus, Ohio (2)
James A. McGehee, Jr. D
Richmond, Virginia (17) VP
Terrance L. McGill
Houston, Texas (13)
Steve R. Melton
Houston, Texas (13)
Jeffrey A. Meyers VP VP
Columbus, Ohio (35)
Ellen L. Milnes
Columbus, Ohio (2)
</TABLE>
42
<PAGE> 44
ITEM 6. Continued
<TABLE>
<CAPTION>
ECC CERC CCC CTC TGT CNS CMC EN CPL CDW CAT CEC CGP
--- ---- --- --- --- --- --- -- --- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
James R. Lee
Columbus, Ohio (2)
Edward R. Lincoln
Charleston, West Virginia (18)
Christopher J. Lord S
Herndon, Virginia (1)
Clayton Thomas Lowrie
Richmond,Virginia (17)
David L. Lugar
Houston, Texas (29)
Stephen T. MacQueen
Lusby, Maryland (19)
Philip L. Magley
Herndon, Virginia (1)
Kenneth H. Marks, Jr. S S S
Herndon, Virginia (1)
W. Harris Marple
Houston, Texas (13)
Gerald E. Mayo
Hilton Head, South Carolina (15)
Don McClure CFO CFO
Herndon, Virginia (1) D
Dennis W. McFarland
Columbus, Ohio (2)
James A. McGehee, Jr.
Richmond, Virginia (17)
Terrance L. McGill D D
Houston, Texas (13)
Steve R. Melton
Houston, Texas (13)
Jeffrey A. Meyers
Columbus, Ohio (35)
Ellen L. Milnes
Columbus, Ohio (2)
</TABLE>
43
<PAGE> 45
ITEM 6. Continued
<TABLE>
<CAPTION>
CEPL CEPG CGT TCO CLP CBL CVG CVL CRL CEH CLM CGG
---- ---- --- --- --- --- --- --- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
James R. Lee
Columbus, Ohio (2)
Edward R. Lincoln
Charleston, West Virginia (18)
Christopher J. Lord
Herndon, Virginia (1)
Clayton Thomas Lowrie
Richmond,Virginia (17)
David L. Lugar
Houston, Texas (29)
Stephen T. MacQueen
Lusby, Maryland (19)
Philip L. Magley
Herndon, Virginia (1)
Kenneth H. Marks, Jr.
Herndon, Virginia (1)
W. Harris Marple VP
Houston, Texas (13)
Gerald E. Mayo
Hilton Head, South Carolina (15)
Don McClure
Herndon, Virginia (1)
Dennis W. McFarland
Columbus, Ohio (2)
James A. McGehee, Jr.
Richmond, Virginia (17)
Terrance L. McGill D SVP
Houston, Texas (13) P
Steve R. Melton VP
Houston, Texas (13) GC, S
Jeffrey A. Meyers
Columbus, Ohio (35)
Ellen L. Milnes
Columbus, Ohio (2)
</TABLE>
44
<PAGE> 46
ITEM 6. Continued
<TABLE>
<CAPTION>
CGR CEL CEK CHC CCL LLM LLL CFC CAR CS
--- --- --- --- --- --- --- --- --- --
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
James R. Lee
Columbus, Ohio (2)
Edward R. Lincoln
Charleston, West Virginia (18)
Christopher J. Lord S S
Herndon, Virginia (1)
Clayton Thomas Lowrie
Richmond, Virginia (17)
David L. Lugar
Houston, Texas (29)
Stephen T. MacQueen
Lusby, Maryland (19)
Philip L. Magley SVP
Herndon, Virginia (1) D
Kenneth H. Marks, Jr.
Herndon, Virginia (1)
W. Harris Marple
Houston, Texas (13)
Gerald E. Mayo
Hilton Head, South Carolina (15)
Don McClure
Herndon, Virginia (1)
Dennis W. McFarland
Columbus, Ohio (2)
James A. McGehee, Jr.
Richmond, Virginia (17)
Terrance L. McGill
Houston, Texas (13)
Steve R. Melton
Houston, Texas (13)
Jeffrey A. Meyers
Columbus, Ohio (35)
Ellen L. Milnes
Columbus, Ohio (2)
</TABLE>
45
<PAGE> 47
ITEM 6. Continued
<TABLE>
<CAPTION>
CKY COH CMD CPA CGV CBG CLG CLNG CER CNR HH AD
--- --- --- --- --- --- --- ---- --- --- -- --
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Richard Morris
Herndon, Virginia (1)
Terrence J. Murphy SVP SVP
Pittsburgh, Pennsylvania (26)
Richard A. Newbold VP
Columbus, Ohio (2)
Sheldon M. Nordin
Richmond, Virginia (17)
Gary B. Nunnally
Houston, Texas (29)
J. M. O'Brien
Fairfax, Virginia (23)
Michael W. O'Donnell D D D
Herndon, Virginia (1)
Kathleen O' Leary
Fairfax, Virginia (23)
Douglas E. Olesen D
Columbus, Ohio (27)
James J. Ostertag
Herndon, Virginia (1)
Nicholas A. Parillo
Herndon, Virginia (1)
John W. Partridge, Jr. SVP
Columbus, Ohio (2)
David C. Pentzien
Fairfax, Virginia (23)
Thomas E. Perkins, Jr.
Richmond, Virginia (17)
Cheryl A. Peters VP
Columbus, Ohio (2)
Dennis A. Pick
Herndon, Virginia (1)
R. Neal Pierce, Jr. VP GC,VP S VP
Charleston, West Virginia (18) S S,D D S,D
</TABLE>
46
<PAGE> 48
ITEM 6. Continued
<TABLE>
<CAPTION>
CU CIC CG CPC PET CPH AEI CES CEM CPM CSP CAA
-- --- -- --- --- --- --- --- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Richard Morris D
Herndon, Virginia (1)
Terrence J. Murphy
Pittsburgh, Pennsylvania (26)
Richard A. Newbold
Columbus, Ohio (2)
Sheldon M. Nordin T T T T
Richmond, Virginia (17)
Gary B. Nunnally D
Houston, Texas (29)
J. M. O'Brien
Fairfax, Virginia (23)
Michael W. O'Donnell SVP D
Herndon, Virginia (1) CFO
Kathleen O' Leary
Fairfax, Virginia (23)
Douglas E. Olesen D
Columbus, Ohio (27)
James J. Ostertag D
Herndon, Virginia (1) VP
Nicholas A. Parillo D
Herndon, Virginia (1) P
John W. Partridge, Jr.
Columbus, Ohio (2)
David C. Pentzien
Fairfax, Virginia (23)
Thomas E. Perkins, Jr. VP D D D
Richmond, Virginia (17) COO VP VP
Cheryl A. Peters
Columbus, Ohio (2)
Dennis A. Pick
Herndon, Virginia (1)
R. Neal Pierce, Jr. S
Charleston, West Virginia (18) VP
</TABLE>
47
<PAGE> 49
ITEM 6. Continued
<TABLE>
<CAPTION>
ECC CERC CCC CTC TGT CNS CMC EN CPL CDW CAT CEC CGP
--- ---- --- --- --- --- --- -- --- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Richard Morris
Herndon, Virginia (1)
Terrence J. Murphy
Pittsburgh, Pennsylvania (26)
Richard A. Newbold
Columbus, Ohio (2)
Sheldon M. Nordin
Richmond, Virginia (17)
Gary B. Nunnally
Houston, Texas (29)
J. M. O'Brien
Fairfax, Virginia (23)
Michael W. O'Donnell D D D D D D D
Herndon, Virginia (1)
Kathleen O' Leary
Fairfax, Virginia (23)
Douglas E. Olesen
Columbus, Ohio (27)
James J. Ostertag
Herndon, Virginia (1)
Nicholas A. Parillo
Herndon, Virginia (1)
John W. Partridge, Jr.
Columbus, Ohio (2)
David C. Pentzien P
Fairfax, Virginia (23)
Thomas E. Perkins, Jr.
Richmond, Virginia (17)
Cheryl A. Peters
Columbus, Ohio (2)
Dennis A. Pick
Herndon, Virginia (1)
R. Neal Pierce, Jr.
Charleston, West Virginia (18)
</TABLE>
48
<PAGE> 50
ITEM 6. Continued
<TABLE>
<CAPTION>
CEPL CEPG CGT TCO CLP CBL CVG CVL CRL CEH CLM CGG
---- ---- --- --- --- --- --- --- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Richard Morris
Herndon, Virginia (1)
Terrence J. Murphy
Pittsburgh, Pennsylvania (26)
Richard A. Newbold
Columbus, Ohio (2)
Sheldon M. Nordin
Richmond, Virginia (17)
Gary B. Nunnally
Houston, Texas (29)
J. M. O'Brien VP
Fairfax, Virginia (23)
Michael W. O'Donnell D D
Herndon, Virginia (1)
Kathleen O' Leary VP VP
Fairfax, Virginia (23)
Douglas E. Olesen
Columbus, Ohio (27)
James J. Ostertag
Herndon, Virginia (1)
Nicholas A. Parillo
Herndon, Virginia (1)
John W. Partridge, Jr.
Columbus, Ohio (2)
David C. Pentzien VP
Fairfax, Virginia (23)
Thomas E. Perkins, Jr.
Richmond, Virginia (17)
Cheryl A. Peters
Columbus, Ohio (2)
Dennis A. Pick
Herndon, Virginia (1)
R. Neal Pierce, Jr.
Charleston, West Virginia (18)
</TABLE>
49
<PAGE> 51
ITEM 6. Continued
<TABLE>
<CAPTION>
CGR CEL CEK CHC CCL LLM LLL CFC CAR CS
--- --- --- --- --- --- --- --- --- --
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Richard Morris
Herndon, Virginia (1)
Terrence J. Murphy
Pittsburgh, Pennsylvania (26)
Richard A. Newbold
Columbus, Ohio (2)
Sheldon M. Nordin
Richmond, Virginia (17)
Gary B. Nunnally
Houston, Texas (29)
J. M. O'Brien
Fairfax, Virginia (23)
Michael W. O'Donnell D D SVP
Herndon, Virginia (1) CFO,D
Kathleen O' Leary
Fairfax, Virginia (23)
Douglas E. Olesen
Columbus, Ohio (27)
James J. Ostertag
Herndon, Virginia (1)
Nicholas A. Parillo VP
Herndon, Virginia (1)
John W. Partridge, Jr.
Columbus, Ohio (2)
David C. Pentzien
Fairfax, Virginia (23)
Thomas E. Perkins, Jr.
Richmond, Virginia (17)
Cheryl A. Peters
Columbus, Ohio (2)
Dennis A. Pick VP
Herndon, Virginia (1)
R. Neal Pierce, Jr.
Charleston, West Virginia (18)
</TABLE>
50
<PAGE> 52
ITEM 6. Continued
<TABLE>
<CAPTION>
CKY COH CMD CPA CGV CBG CLG CLNG CER CNR HH AD
--- --- --- --- --- --- --- ---- --- --- -- --
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Olga A. Polemitou
Herndon, Virginia (1)
Melanie K. Popovich VP VP
Pittsburgh, Pennsylvania (26)
R. A. Rankin, Jr.
Herndon, Virginia (1)
Sarah Bloom Raskin
Herndon, Virginia (1)
Oliver G. Richard III D D
Herndon, Virginia (1)
Gary J. Robinson P P
Pittsburgh, Pennsylvania (26) CEO,D CEO,D
R. D. Robinson
Charleston, West Virginia (34)
Ronald R. Rominiecki
Richmond, Virginia (17)
Edward A. Santry VP VP
Pittsburgh, Pennsylvania (26)
Donald F. Schalk
Richland, Pennsylvania (30)
Stephen A. Schmotzer VP
Columbus, Ohio (2)
Glen E. Schuler
Charleston, West Virginia (34)
Peter M. Schwolsky D D
Herndon, Virginia (1)
Joseph T. Sinclair VP VP
Pittsburgh, Pennsylvania (26)
Robert C. Skaggs, Jr. P P
Columbus, Ohio (2) CEO,D CEO,D
Rose M. Smith VP
Columbus, Ohio (2)
Stephen P. Smith
Herndon, Virginia (1)
</TABLE>
51
<PAGE> 53
ITEM 6. Continued
<TABLE>
<CAPTION>
CU CIC CG CPC PET CPH AEI CES CEM CPM CSP CAA
-- --- -- --- --- --- --- --- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Olga A. Polemitou
Herndon, Virginia (1)
Melanie K. Popovich
Pittsburgh, Pennsylvania (26)
R. A. Rankin, Jr.
Herndon, Virginia (1)
Sarah Bloom Raskin GC GC D D D D GC
Herndon, Virginia (1) S S GC,S GC,S GC,S GC,S S
Oliver G. Richard III CB,P D
Herndon, Virginia (1) CEO,D
Gary J. Robinson
Pittsburgh, Pennsylvania (26)
R. D. Robinson
Charleston, West Virginia (34)
Ronald R. Rominiecki CFO CFO
Richmond, Virginia (17)
Edward A. Santry
Pittsburgh, Pennsylvania (26)
Donald F. Schalk P
Richland, Pennsylvania (30) CEO
Stephen A. Schmotzer
Columbus, Ohio (2)
Glen E. Schuler
Charleston, West Virginia (34)
Peter M. Schwolsky SVP D
Herndon, Virginia (1) CLO
Joseph T. Sinclair
Pittsburgh, Pennsylvania (26)
Robert C. Skaggs, Jr.
Columbus, Ohio (2)
Rose M. Smith
Columbus, Ohio (2)
Stephen P. Smith
Herndon, Virginia (1)
</TABLE>
52
<PAGE> 54
ITEM 6. Continued
<TABLE>
<CAPTION>
ECC CERC CCC CTC TGT CNS CMC EN CPL CDW CAT CEC CGP
--- ---- --- --- --- --- --- -- --- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Olga A. Polemitou
Herndon, Virginia (1)
Melanie K. Popovich
Pittsburgh, Pennsylvania (26)
R. A. Rankin, Jr.
Herndon, Virginia (1)
Sarah Bloom Raskin D D
Herndon, Virginia (1) GC,S GC,S
Oliver G. Richard III
Herndon, Virginia (1)
Gary J. Robinson
Pittsburgh, Pennsylvania (26)
R. D. Robinson
Charleston, West Virginia (34)
Ronald R. Rominiecki
Richmond, Virginia (17)
Edward A. Santry
Pittsburgh, Pennsylvania (26)
Donald F. Schalk
Richland, Pennsylvania (30)
Stephen A. Schmotzer
Columbus, Ohio (2)
Glen E. Schuler
Charleston, West Virginia (34)
Peter M. Schwolsky D
Herndon, Virginia (1)
Joseph T. Sinclair
Pittsburgh, Pennsylvania (26)
Robert C. Skaggs, Jr. D D
Columbus, Ohio (2)
Rose M. Smith
Columbus, Ohio (2)
Stephen P. Smith VP
Herndon, Virginia (1) T
</TABLE>
53
<PAGE> 55
ITEM 6. Continued
<TABLE>
<CAPTION>
CEPL CEPG CGT TCO CLP CBL CVG CVL CRL CEH CLM CGG
---- ---- --- --- --- --- --- --- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Olga A. Polemitou
Herndon, Virginia (1)
Melanie K. Popovich
Pittsburgh, Pennsylvania (26)
R. A. Rankin, Jr.
Herndon, Virginia (1)
Sarah Bloom Raskin
Herndon, Virginia (1)
Oliver G. Richard III D D
Herndon, Virginia (1)
Gary J. Robinson
Pittsburgh, Pennsylvania (26)
R. D. Robinson VP
Charleston, West Virginia (34)
Ronald R. Rominiecki
Richmond, Virginia (17)
Edward A. Santry
Pittsburgh, Pennsylvania (26)
Donald F. Schalk
Richland, Pennsylvania (30)
Stephen A. Schmotzer
Columbus, Ohio (2)
Glen E. Schuler VP
Charleston, West Virginia (34)
Peter M. Schwolsky D D D
Herndon, Virginia (1)
Joseph T. Sinclair
Pittsburgh, Pennsylvania (26)
Robert C. Skaggs, Jr.
Columbus, Ohio (2)
Rose M. Smith
Columbus, Ohio (2)
Stephen P. Smith D,SVP D
Herndon, Virginia (1) CFO
</TABLE>
54
<PAGE> 56
ITEM 6. Continued
<TABLE>
<CAPTION>
CGR CEL CEK CHC CCL LLM LLL CFC CAR CS
--- --- --- --- --- --- --- --- --- --
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Olga A. Polemitou VP
Herndon, Virginia (1) GA
Melanie K. Popovich
Pittsburgh, Pennsylvania (26)
R. A. Rankin, Jr. VP
Herndon, Virginia (1)
Sarah Bloom Raskin
Herndon, Virginia (1)
Oliver G. Richard III CB,P
Herndon, Virginia (1) CEO,D
Gary J. Robinson D
Pittsburgh, Pennsylvania (26)
R. D. Robinson
Charleston, West Virginia (34)
Ronald R. Rominiecki
Richmond, Virginia (17)
Edward A. Santry
Pittsburgh, Pennsylvania (26)
Donald F. Schalk
Richland, Pennsylvania (30)
Stephen A. Schmotzer
Columbus, Ohio (2)
Glen E. Schuler
Charleston, West Virginia (34)
Peter M. Schwolsky SVP
Herndon, Virginia (1) CLO,D
Joseph T. Sinclair
Pittsburgh, Pennsylvania (26)
Robert C. Skaggs, Jr. D
Columbus, Ohio (2)
Rose M. Smith
Columbus, Ohio (2)
Stephen P. Smith SVP
Herndon, Virginia (1)
</TABLE>
55
<PAGE> 57
ITEM 6. Continued
<TABLE>
<CAPTION>
CKY COH CMD CPA CGV CBG CLG CLNG CER CNR HH AD
--- --- --- --- --- --- --- ---- --- --- -- --
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Lawrence D. Smore VP
Richmond, Virginia (25) D
Andrew J. Sonderman GC GC S S S
Columbus, Ohio (2) S, D S, D D D
Robert D. Stuart
Fairfax, Virginia (23)
William Thomas
Columbus, Ohio (35)
Jerry A. Tischer VP
Toledo, Ohio (8)
James W. Trost
Herndon, Virginia (1)
Anthony Trubisz, Jr. P
Richmond, Virginia (25) CEO,D
Genevieve A. Tuchow VP
Columbus, Ohio (2)
Tom Ulry
Westerville, Ohio (33)
Roger D. Vari VP VP
Pittsburgh, Pennsylvania (26) T T
Bernard T. Walsh
Charleston, West Virginia (34)
Stephen M. Warnick
Fairfax, Virginia (23)
Willard A. Watson, Jr. VP VP
Charleston, West Virginia (18) D D
Brian J. Watt
Herndon, Virginia (1)
William H. White
Charleston, West Virginia (34)
Larry L. Willeke
Fairfax, Virginia (23)
Stephen M. Wilner
Fairfax, Virginia (23)
</TABLE>
56
<PAGE> 58
ITEM 6. Continued
<TABLE>
<CAPTION>
CU CIC CG CPC PET CPH AEI CES CEM CPM CSP CAA
-- --- -- --- --- --- --- --- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Lawrence D. Smore
Richmond, Virginia (25)
Andrew J. Sonderman
Columbus, Ohio (2)
Robert D. Stuart
Fairfax, Virginia (23)
William Thomas D
Columbus, Ohio (35)
Jerry A. Tischer
Toledo, Ohio (8)
James W. Trost
Herndon, Virginia (1)
Anthony Trubisz, Jr.
Richmond, Virginia (25)
Genevieve A. Tuchow
Columbus, Ohio (2)
Tom Ulry
Westerville, Ohio (33)
Roger D. Vari
Pittsburgh, Pennsylvania (26)
Bernard T. Walsh
Charleston, West Virginia (34)
Stephen M. Warnick
Fairfax, Virginia (23)
Willard A. Watson, Jr. VP
Charleston, West Virginia (18)
Brian J. Watt D D D D D
Herndon, Virginia (1) CEO,P CEO,P CEO,P CEO,P P,CEO
William H. White
Charleston, West Virginia (34)
Larry L. Willeke
Fairfax, Virginia (23)
Stephen M. Wilner
Fairfax, Virginia (23)
</TABLE>
57
<PAGE> 59
ITEM 6. Continued
<TABLE>
<CAPTION>
ECC CERC CCC CTC TGT CNS CMC EN CPL CDW CAT CEC CGP
--- ---- --- --- --- --- --- -- --- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Lawrence D. Smore
Richmond, Virginia (25)
Andrew J. Sonderman
Columbus, Ohio (2)
Robert D. Stuart
Fairfax, Virginia (23)
William Thomas
Columbus, Ohio (35)
Jerry A. Tischer
Toledo, Ohio (8)
James W. Trost
Herndon, Virginia (1)
Anthony Trubisz, Jr.
Richmond, Virginia (25)
Genevieve A. Tuchow
Columbus, Ohio (2)
Tom Ulry P
Westerville, Ohio (33) D
Roger D. Vari
Pittsburgh, Pennsylvania (26)
Bernard T. Walsh
Charleston, West Virginia (34)
Stephen M. Warnick
Fairfax, Virginia (23)
Willard A. Watson, Jr.
Charleston, West Virginia (18)
Brian J. Watt D D
Herndon, Virginia (1) CEO CEO
William H. White
Charleston, West Virginia (34)
Larry L. Willeke
Fairfax, Virginia (23)
Stephen M. Wilner
Fairfax, Virginia (23)
</TABLE>
58
<PAGE> 60
ITEM 6. Continued
<TABLE>
<CAPTION>
CEPL CEPG CGT TCO CLP CBL CVG CVL CRL CEH CLM CGG
---- ---- --- --- --- --- --- --- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Lawrence D. Smore
Richmond, Virginia (25)
Andrew J. Sonderman
Columbus, Ohio (2)
Robert D. Stuart VP VP
Fairfax, Virginia (23)
William Thomas
Columbus, Ohio (35)
Jerry A. Tischer
Toledo, Ohio (8)
James W. Trost
Herndon, Virginia (1)
Anthony Trubisz, Jr.
Richmond, Virginia (25)
Genevieve A. Tuchow
Columbus, Ohio (2)
Tom Ulry
Westerville, Ohio (33)
Roger D. Vari
Pittsburgh, Pennsylvania (26)
Bernard T. Walsh VP
Charleston, West Virginia (34)
Stephen M. Warnick VP D
Fairfax, Virginia (23)
Willard A. Watson, Jr.
Charleston, West Virginia (18)
Brian J. Watt
Herndon, Virginia (1)
William H. White VP
Charleston, West Virginia (34)
Larry L. Willeke VP VP
Fairfax, Virginia (23)
Stephen M. Wilner VP VP
Fairfax, Virginia (23)
</TABLE>
59
<PAGE> 61
ITEM 6. Continued
<TABLE>
<CAPTION>
CGR CEL CEK CHC CCL LLM LLL CFC CAR CS
--- --- --- --- --- --- --- --- --- --
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Lawrence D. Smore
Richmond, Virginia (25)
Andrew J. Sonderman
Columbus, Ohio (2)
Robert D. Stuart
Fairfax, Virginia (23)
William Thomas
Columbus, Ohio (35)
Jerry A. Tischer
Toledo, Ohio (8)
James W. Trost D VP
Herndon, Virginia (1)
Anthony Trubisz, Jr. D
Richmond, Virginia (25)
Genevieve A. Tuchow
Columbus, Ohio (2)
Tom Ulry
Westerville, Ohio (33)
Roger D. Vari
Pittsburgh, Pennsylvania (26)
Bernard T. Walsh
Charleston, West Virginia (34)
Stephen M. Warnick
Fairfax, Virginia (23)
Willard A. Watson, Jr.
Charleston, West Virginia (18)
Brian J. Watt SVP
Herndon, Virginia (1) D
William H. White
Charleston, West Virginia (34)
Larry L. Willeke
Fairfax, Virginia (23)
Stephen M. Wilner
Fairfax, Virginia (23)
</TABLE>
60
<PAGE> 62
ITEM 6. Continued
<TABLE>
<CAPTION>
CKY COH CMD CPA CGV CBG CLG CLNG CER CNR HH AD
--- --- --- --- --- --- --- ---- --- --- -- --
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Martin A. Woods
Cedar Rapids, Iowa (28)
Robert M. Zulandi SVP
Herndon, Virginia (1) D
</TABLE>
61
<PAGE> 63
ITEM 6. Continued
<TABLE>
<CAPTION>
CU CIC CG CPC PET CPH AEI CES CEM CPM CSP CAA
-- --- -- --- --- --- --- --- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Martin A. Woods VP
Cedar Rapids, Iowa (28)
Robert M. Zulandi
Herndon, Virginia (1)
</TABLE>
62
<PAGE> 64
ITEM 6. Continued
<TABLE>
<CAPTION>
ECC CERC CCC CTC TGT CNS CMC EN CPL CDW CAT CEC CGP
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Martin A. Woods
Cedar Rapids, Iowa (28)
Robert M. Zulandi SVP SVP
Herndon, Virginia (1) D D
</TABLE>
63
<PAGE> 65
ITEM 6. Continued
<TABLE>
<CAPTION>
CEPL CEPG CGT TCO CLP CBL CVG CVL CRL CEH CLM CGG
---- ---- --- --- --- --- --- --- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Martin A. Woods
Cedar Rapids, Iowa (28)
Robert M. Zulandi SVP SVP SVP SVP SVP SVP SVP SVP SVP SVP
Herndon, Virginia (1) D D D D D D D D D D
</TABLE>
64
<PAGE> 66
ITEM 6. Continued
<TABLE>
<CAPTION>
CGR CEL CEK CHC CCL LLM LLL CFC CAR CS
--- --- --- --- --- --- --- --- --- --
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Martin A. Woods
Cedar Rapids, Iowa (28)
Robert M. Zulandi SVP SVP SVP SVP D SVP SVP
Herndon, Virginia (1) D D D D D D
</TABLE>
65
<PAGE> 67
Part II. Financial connections as of December 31, 1999*
<TABLE>
<CAPTION>
Position
Held In Applicable
Name of Officer Name and Location of Financial Exemption
or Director Financial Institution Institution Rule
(1) (2) (3) (4)
--------------- --------------------- ----------- -----------
<S> <C> <C> <C>
William E. Lavery First Union of VA/MD/DC Director 70(a) & 70(c)
Richmond, Virginia
</TABLE>
*Since such information rests peculiarly within the knowledge of the
respective officers and directors, the Registrant disclaims
responsibility for the accuracy and completeness of such information.
PART III(a). COMPENSATION OF OFFICERS AND DIRECTORS
1999 EXECUTIVE COMPENSATION PLAN
COMPENSATION COMMITTEE OF THE BOARD OF DIRECTORS
EXECUTIVE COMPENSATION REPORT TO THE STOCKHOLDERS
GENERAL - Through the Compensation Committee (the "Committee") of the
Corporation's Board of Directors, the Board of Directors has developed an
aggressive "PAY FOR PERFORMANCE" executive compensation philosophy and
programs to implement that philosophy. Effective since 1996, these
programs combine to form the basis of the total compensation plan for
senior management of the Corporation and its subsidiaries (the "Group"),
which is designed to focus management's attention on the Corporation's
strategic business initiatives and financial performance objectives. The
Committee believes that the design and execution of the executive
compensation program implemented in 1996 continue to be critical to the
Corporation's future success by FOCUSING MANAGEMENT'S ATTENTION on the
competitive business environment through compensation awards largely
based on COLUMBIA VALUE ADDED ("CVA") FINANCIAL PERFORMANCE MEASURES and
SHAREHOLDER RETURN. CVA performance measures determine the real value of
a particular investment by the extent the return on that investment
exceeds the cost of the investment, including the cost of capital.
COMPENSATION PHILOSOPHY - The Board of Directors believes that total
compensation is not only payment for services rendered to the Group, but
also a means to provide a strong motivational vehicle for the achievement
of key financial and strategic goals. The Group provides executives with
the opportunity to increase their total compensation above base salary
through annual and longer-term incentive compensation programs. Goals and
objectives within the executive compensation program are established such
that their achievement will result in added value to the Group over
appropriate periods of time. This is how compensation is linked to
corporate performance. To implement the pay for performance philosophy
that the Group instituted in 1996, its executive compensation program is
designed to:
-PLACE AT RISK significant amounts of the executives' total
compensation.
-Base greater amounts of the executives' total compensation upon
CREATING LONG-TERM VALUE FOR THE STOCKHOLDERS.
-TIE COMPENSATION MORE CLOSELY TO THE FORTUNES OF THE STOCKHOLDERS
through the use of a combination of cash and STOCK-BASED INCENTIVE
COMPENSATION PLANS.
-Emphasize the achievement of both short- and longer-term internal
VALUE ADDED PERFORMANCE MEASURES as well as STOCKHOLDER RETURN
EXPECTATIONS in relationship to peer companies.
-Provide total compensation rewards to executives in relation to
the overall financial performance of the Corporation.
66
<PAGE> 68
As a general matter, the executive compensation program is designed to
provide base salary compensation levels that target the median of the
marketplace in similar-sized energy and industrial companies; maintain
equitable relationships among the compensation levels established for
jobs within the Group; provide for the recognition of performance
delivered year-to-year and over the long term; and ensure that
appropriate controls are in place for compensation to be fully earned.
Because of the Group's size and integrated nature, a number of well-known
energy and general industry executive compensation surveys are utilized
to determine competitive remuneration for executives. Most of the
companies in the S&P Natural Gas Utility Index, which comprises the peer
group are included in one or more of these surveys. However, no single
authoritative executive compensation survey currently covers all of the
companies in the S&P Natural Gas Utility Index. The Committee uses
independent compensation consulting firms to assist it in determining the
competitiveness of the Group's compensation plans and programs. In 1999
two such firms, Hewitt Associates, LLC and Towers Perrin, were
principally used.
IMPLEMENTATION OF PHILOSOPHY - The Group's executive compensation program
is administered by the Committee. The Committee is composed of six
independent, nonemployee Directors. As of December 31, 1999, the Group's
executive total compensation program consisted of the following:
1. Base Salary Program
2. Annual Incentive Compensation Plan
3. Long-Term Incentive Plan
4. Other Arrangements
1. BASE SALARY PROGRAM - A base salary is established for each executive
position based on a comparison of compensation levels of similar positions
in the external market. Competitive base salary levels are needed to
attract and retain competent executives. Based on the energy and general
industry compensation surveys referred to above, the base salary levels
for the approximately 190 individuals comprising the executive/key
employee group presently approximate the median for similar groups with
corporations of similar size and complexity. At the minimum opportunity
levels for earning Annual Incentive Compensation Plan and Long-Term
Incentive Plan awards, the executive compensation program is designed to
deliver 40 to 54 percent of total compensation in the form of base pay,
dependent upon the executive's level in the executive compensation
program. At the maximum opportunity levels, base pay represents 28 to 43
percent of an executive's compensation. In keeping with the philosophy of
placing more compensation at risk and of targeting base salary at market
levels, increases to base salary generally are made only in cases of
promotions or marketplace equity adjustments, if individual performance
warrants.
2. ANNUAL INCENTIVE COMPENSATION PLAN - This plan, which was amended and
re-implemented effective January 1, 1996, provides the opportunity for
payment of cash awards to key employees generally for attainment of
specific goals which contribute directly to the present and future
financial health of the Group. Awards for 1999 performance, granted in
2000 after financial results for 1999 were final, are reflected in the
Summary Compensation Table and in the Executive Compensation Report
subsection entitled "1999 Chief Executive Officer's Pay." The award
opportunities for 1999 ranged from zero to 75 percent of an individual's
annual base salary at target level performance, which generally depends
upon the achievement of CVA financial goals and the individual's level of
responsibility within the organization, along with an assessment of the
individual's ability to contribute directly to the financial performance
of the Group. Additional amounts can be awarded should financial
performance exceed the target level and, in certain circumstances, should
the individual exceed his or her personal performance goals. In limited
circumstances, awards may be granted based on non-CVA goals, such as
attainment of project milestones or personal performance goals.
On February 22, 2000, in accordance with the Corporation's "pay for
performance" philosophy, the Committee awarded cash awards to executives
whose operating units met or exceeded the CVA goals, financial performance
compared to peer companies, and/or specific 1999 individual employee
performance objectives. Awards were granted at various levels. The average
award represented 31 percent of the average base salary of all executives
receiving Annual Incentive Compensation Plan awards, excluding Mr.
Richard, the Chairman, President and CEO of the Corporation.
67
<PAGE> 69
3. LONG-TERM INCENTIVE PLAN - The executive compensation program also
includes a component to bring special attention to the important area of
stockholder return. The Long-Term Incentive Plan provides long-term
incentives to officers and other key employees of Group companies through
the granting of incentive stock options, non-qualified stock options,
stock appreciation rights, contingent stock awards, restricted stock
awards, and/or any award in other forms that the Committee may deem
appropriate, consistent with the plan's purpose. For most option awards,
the Corporation's Total Shareholder Return performance (stock price
appreciation plus dividend accruals) has been compared to the peer group
of companies included in the S&P Natural Gas Utility Index as included
elsewhere in this report. For most option awards for 1999, the Committee
provided awards as a result of the Corporation's Total Shareholder Return
exceeding the third quartile Total Shareholder Return of the companies
which comprise this peer group (excluding the Corporation). Dependent upon
each employee's position, individual performance, and the Corporation's
Total Shareholder Return, options for 3,000 to 40,000 shares may be
awarded for performance at the third quartile (target, or above median),
while options for 6,000 to 60,000 shares may be awarded for performance at
the fourth quartile (stretch, or top quartile). Additional amounts can be
awarded should an individual exceed his or her personal performance goals
or if circumstances otherwise warrant. Option awards to key employees may
be made for reasons other than Total Shareholder Return, subject to the
discretion of the Committee. The purchase price per share of stock
deliverable upon the exercise of a non-qualified stock option is 100
percent of the fair market value of the stock on the date of grant. The
price of options issued under the plan is credited with dividend
equivalents. Such credits may be made directly through a reduction in the
purchase price of stock subject to options. Alternatively, at the
discretion of the Committee, dividend equivalent credits may be provided
indirectly, for example through the establishment of an unsecured,
unfunded bookkeeping "account" that would track dividends declared on the
stock subject to options and that would be paid in cash to an optionee
upon the exercise of an option or, in certain circumstances, upon
expiration of the option. The amount of dividend equivalent credits may
not exceed the option purchase price less par value. The Long-Term
Incentive Plan was approved by the stockholders of the Corporation on
April 26, 1996, and the plan became effective as of February 21, 1996. The
plan was amended and restated on November 18, 1998, further amended on
February 17, 1999, and approved by the Corporation's stockholders on May
19, 1999. Awards made in 2000 for 1999 performance are reflected in the
Options Table elsewhere in this report as well as the subsection of this
report entitled "1999 Chief Executive Officer's Pay."
On February 22, 2000, the Committee awarded options for 765,300 shares
(excluding Mr. Richard) of the Corporation's stock in the form of
non-qualified stock options for 1999 Total Shareholder Return performance
at the target level, with individual performance bearing on the number
delivered to employees. Key employees who were granted non-qualified stock
options received an average of 4,373 shares.
4. OTHER ARRANGEMENTS - Mr. Richard, Mr. Schwolsky, Senior Vice President
and Chief Legal Officer of the Corporation, and Ms. Abbott, Chief
Executive Officer and President of Columbia Gas Transmission Corporation
and Chief Executive Officer of Columbia Gulf Transmission Company, were
granted employment agreements upon hire. In addition, the Corporation has
entered into change-in-control agreements with key executives, including
Mr. O'Donnell, Senior Vice President and Chief Financial Officer of the
Corporation, and Ms. Hammick, Senior Vice President of Columbia Energy
Group Service Corporation. For a more detailed description of the
agreements, please see "Employment Agreements" elsewhere in this report.
DEDUCTIBILITY OF COMPENSATION - The Committee has reviewed the potential
impact on the Group of Section 162(m) of the Internal Revenue Code, which
imposes a limit on tax deductions that the Group may claim for annual
compensation in excess of one million dollars paid to any of the CEO and
the four other most highly compensated executive officers. The Committee
has determined that under current compensation arrangements, the impact of
Section 162(m) on the Group would be limited and, therefore, has decided
not to take any action at this time to meet the requirements for a
deduction.
EVALUATION PROCESS - Each year, the Board of Directors of the Corporation
reviews and approves strategic business and financial plans for the
Corporation and each of its subsidiaries. In addition to various business
strategies, these plans include specific financial goals such as CVA or
other measures to evaluate whether stockholder value has increased. The
goals set forth in these strategic plans are the bases for evaluating the
performance of the CEO of the Corporation and other senior executives
whose compensation falls under the direct purview of the Committee.
Attainment of meaningful strategic goals over reasonable time periods
increases value to stockholders, and the increased compensation
opportunities for executives are directly linked to the attainment of
these goals.
68
<PAGE> 70
1999 CHIEF EXECUTIVE OFFICER'S PAY
BASE SALARY - When Mr. Richard was hired as CEO in 1995, the Corporation
entered into an employment agreement with Mr. Richard that provides a
base salary of $750,000 per year. The Board approved a marketplace
adjustment for Mr. Richard in 1996 that increased his base salary to
$787,500. As noted above, in keeping with the philosophy of placing more
compensation at risk and of targeting base salary at market levels,
increases to base salary for the executive group generally are made only
in cases of promotions or marketplace equity adjustments. For those
reasons, the Board approved no increases to Mr. Richard's base salary for
1997, 1998 or 1999.
ANNUAL INCENTIVE COMPENSATION - No Annual Incentive Compensation award
was granted to Mr. Richard for 1999.
LONG-TERM INCENTIVE PLAN - On May 20, 1996, Mr. Richard received a grant
of 29,785 shares (44,677 post-stock split shares) of restricted stock
under his amended employment agreement. To provide an additional
incentive to Mr. Richard to continue his employment with the Corporation,
the amended employment agreement provides that only 20 percent of such
restricted stock vests each year; 60 percent is vested as of January 4,
1999. On February 22, 2000, based on 1999 Total Shareholder Return
performance at the target level and individual performance, the Committee
awarded Mr. Richard, under the Long-Term Incentive Plan, a grant of
non-qualified stock options to purchase 40,000 shares of common stock,
with one-third vesting on the first anniversary of grant, one-third on
the second anniversary of grant, and one-third on the third anniversary
of grant. The effective date of the grant and pricing of the options is
discussed in the "Long-Term Incentive Plan" subsection of the
"Implementation of Philosophy" section of this report. The awards are
included in the Options Table.
BY THE COMPENSATION COMMITTEE:
<TABLE>
<S> <C>
Gerald E. Mayo James P. Heffernan
Robert H. Beeby, Chairman Malcolm T. Hopkins
Wilson K. Cadman Malcolm Jozoff
</TABLE>
EMPLOYMENT AGREEMENTS
In order to secure the services of Mr. Richard, Mr. Schwolsky and Ms.
Abbott, the Corporation has entered into employment agreements with each
of these individuals. Set forth below is a brief description of the
material terms of these agreements, as amended.
Mr. Richard's agreement was entered into in 1995 and was amended in 1996
and again in 1999. As amended, Mr. Richard's agreement provides for a
three year term, with automatic annual extensions (unless either party to
the agreement gives notice that the agreement shall not be extended), and
provides that he will serve as the Chairman, President and Chief
Executive Officer of the Corporation. In addition to salary, short- and
long-term incentive compensation (as previously discussed in this report
in the Executive Compensation Report of the Compensation Committee), and
other fringe benefits, Mr. Richard's agreement provides for severance
benefits if his employment is terminated under various scenarios. For
example, if Mr. Richard's employment is terminated by the Corporation for
a reason other than cause, death or disability, if Mr. Richard terminates
his employment because the Corporation has removed him from his current
position or has reduced his duties or if the Corporation prevents the
term of the agreement from automatically extending, Mr. Richard will
receive severance benefits. Such severance benefits would include a
payment of salary and annual incentive for 24 months, a supplemental
retirement benefit, and fringe benefits. If Mr. Richard terminates his
employment for various reasons following a change in control (as defined
in the agreement), he would be entitled to enhanced severance benefits.
Such severance benefits would include a payment equal to three times his
annual salary and annual incentive, a prorated bonus for the year of
termination, supplemental retirement plan benefits including an amount
equal to the contributions that would have been contributed under certain
retirement plans to which the Corporation contributes, vesting of stock
options and restricted stock, continuation of health, welfare and fringe
benefits for three years and other perquisites. In addition, if a
"parachute payment" excise tax is triggered under the Internal Revenue
Code, the Corporation will provide a gross-up payment to Mr. Richard.
Mr. Schwolsky's employment agreement was entered into in 1995 and was
amended in 1999. As amended, Mr. Schwolsky's agreement provides for a
three-year term, with automatic annual extensions (unless either party to
the agreement gives notice that the agreement shall not be extended), and
provides that he will serve as the Senior Vice President and Chief Legal
Officer of the Corporation. In addition to stock-based grants made in
1995, the agreement provides an annual base salary of $285,000, subject
to such increases as may be approved by the Board. Besides being eligible
to participate in all incentive compensation plans and employee benefit
programs provided to other senior executives of the Group, the agreement
provides severance benefits substantially the same as those provided to
Mr. Richard, as described in the preceding paragraph, but based on Mr.
Schwolsky's levels of compensation and benefits.
69
<PAGE> 71
Ms. Abbott's employment agreement was entered into in 1996 and was
amended in 1999. As amended, Ms. Abbott's agreement provides for a
three-year term, with automatic annual extensions (unless either party to
the agreement gives notice that the agreement shall not be extended), and
provides that she will serve as the Chief Executive Officer of the
Corporation's transmission subsidiaries. In addition to a grant of stock
made in 1996, the agreement provides for an annual base salary of
$325,000, subject to such increases as may be approved by the Board. The
agreement also provides that Ms. Abbott is eligible to participate in all
employee benefit programs provided to other transmission company
executives and in all incentive compensation programs of the transmission
companies appropriate for her status. The agreement further provides
severance benefits substantially the same as those provided to Mr.
Richard and Mr. Schwolsky, as described above, but based on Ms. Abbott's
levels of compensation and benefits.
In addition, in order to retain the services of Mr. O'Donnell and Ms.
Hammick, the Corporation has entered into change-in-control agreements
with these individuals. Generally, the agreements provide these
individuals with benefits similar to those provided to Messrs. Richard
and Schwolsky and Ms. Abbott in the event of an employment termination
following a change in control, except that benefits under Mr. O'Donnell's
and Ms. Hammick's agreements do not become payable by the Corporation
upon a voluntary termination (or termination without "good reason") of
employment after the occurrence of a change in control.
70
<PAGE> 72
OPTION/SAR GRANTS IN LAST FISCAL YEAR**
<TABLE>
<CAPTION>
Individual Grants Potential Realizable Value at
Assumed Annual Rates of Stock Price
Appreciation for Option Term
----------------- ------------------------------------
(a) (b) (c) (d) (e) (f) (g)
Name Number of % of Total Options/SARs Exercise or Expiration 5% 10%
Securities Granted to Employees in Base Price Date ($) ($)
Underlying Fiscal Year ($/Sh)
Options/SARs
Granted (#)
---- ------------ ----------------------- ----------- ---------- -------------- -----------
<S> <C> <C> <C> <C> <C> <C>
O. G. Richard III
Chairman, President & CEO 40,000 5.2 $58.9375 2/22/10 1,482,619* 3,757,248*
M. W. O'Donnell
Senior Vice President & 15,000 1.9 $58.9375 2/22/10 555,982* 1,408,968*
Chief Financial Officer
P. M. Schwolsky
Senior Vice President & 15,000 1.9 $58.9375 2/22/10 555,982* 1,408,968*
Chief Legal Officer
C. G. Abbott
CEO of Corporation's Gas
Transmission Segment 15,000 1.9 $58.9375 2/22/10 555,982* 1,408,968*
P. A. Hammick
Senior Vice President
Columbia Energy Group 7,000 0.9 $58.9375 2/22/10 259,458* 657,518*
Service Corporation
</TABLE>
* Because dividend equivalents are associated with this award, the potential
realizable value shall increase as dividends are paid on stock subject to
options. In no event may dividend equivalents exceed the grant price less
the par value of the underlying stock.
** Granted February 22, 2000, for 1999 performance, the options vest one-third
upon the first anniversary of grant, one-third on the second anniversary of
grant, and the final third on the third anniversary of grant.
71
<PAGE> 73
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR
AND FY-END OPTION/SAR VALUES
<TABLE>
<CAPTION>
(a) (b) (c) (d) (e)
Number of Securities Value of Unexercised
Underlying Unexercised In-the-Money Options/SARs
Options/SARs at at Year-End ($)
Year-End (#)
Shares Acquired Value Realized Exercisable/ Exercisable/
Name on Exercise (#) ($) * Unexercisable Unexercisable *
---- --------------- -------------- ---------------------- ------------------------
<S> <C> <C> <C> <C>
O. G. Richard III -0- -0- 270,000/120,000 6,864,375/1,568,128
M. W. O'Donnell 1,265 $156,565 57,300/40,000 1,356,930/528,595
P. M. Schwolsky -0- -0- 52,500/40,000 1,192,406/528,595
C. G. Abbott -0- -0- 45,000/40,000 873,281/528,595
P. A. Hammick -0- -0- 3,500/19,000 43,677/251,230
All Other Officers (Part I) -0- -0- 50,000/61,000 833,804/808,315
</TABLE>
* Market value of underlying securities at exercise or FY-end, minus the
exercise or base price.
72
<PAGE> 74
SUMMARY COMPENSATION TABLE
The compensation for services in all capacities payable to or earned by the
executive officers of the Corporation and its subsidiaries during the year 1999
was as follows:
<TABLE>
<CAPTION>
Long-Term Compensation
All Other
Annual Compensation Awards Payouts Comp. (1)
(a) (b) (c) (d) (f) (g) (h) (i)
Name and Securities
Principal Restricted Underlying LTIP All Other
Position Year Salary Bonus Stock Awards Options - Payouts Comp. (1)
SARs
($) ($) ($) (#) (4) ($) ($)
--------- ---- ------ ----- ------------ ---------- ------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
O.G. RICHARD 1999 787,500 -0- -0- (6) 40,000(3) -0- 23,625
III
Chairman, President 1998 787,500 295,000 -0- 60,000(4) -0- 23,625
& CEO
1997 787,500 725,000 -0- 90,000(5) -0- 23,625
M. W. O'DONNELL 1999 325,000 -0- -0- 15,000(3) 156,565 19,500
Senior Vice
President & Chief 1998 325,000 97,500 -0- 25,000(4) -0- 19,500
Financial Officer
1997 325,000 230,000 -0- 22,500(5) -0- 19,500
P. M. SCHWOLSKY 1999 325,000 -0- -0- 15,000(3) -0- 9,750
Senior Vice
President & Chief 1998 325,000 97,500 -0- 25,000(4) -0- 9,750
Legal Officer
1997 325,000 241,000 -0- 22,500(5) -0- 13,206
C. G. ABBOTT 1999 325,000 170,000 -0- 15,000(3) -0- 9,750
CEO of
Corporation's Gas 1998 325,000 253,500 -0- 25,000(4) -0- 9,750
Transmission
Segment 1997 325,000 275,000 -0- 22,500(5) -0- 11,026
P. A. HAMMICK 1999 211,167 -0- -0- 7,000(3) -0- 6,235
Senior Vice
President Columbia 1998 190,667 44,400 -0- 12,000(4) -0- 2,955
Energy Group
Service Corporation 1997 156,771(2) 55,000 -0- 10,500(5) -0- N/A
</TABLE>
* Adjusted for June 1998 stock split.
73
<PAGE> 75
(1) Reflects employer matching contributions, if any, to the Employees' Thrift
Plan of Columbia Energy Group, which is qualified under the Internal
Revenue Code, and the Thrift Restoration Plan, a nonqualified plan. The
contributions to all officers, namely those listed in Part I, totaled
$771,458. The compensation to all officers as a group, namely those listed
in Part I, totaled $26,817,000.
(2) Partial year salary.
(3) Options to purchase shares granted to executive group on February 22,
2000, for 1999 performance at a price of $58.9375 per share, which options
vest one-third upon the first anniversary of grant, one-third upon the
second anniversary, and one-third upon the third anniversary.
(4) Options to purchase shares granted to executive group on February 22,
1999, for 1998 performance at a price of $49.59375 per share, which
options vest one-third upon the first anniversary of grant, one-third upon
the second anniversary, and one-third upon the third anniversary.
(5) Options to purchase shares granted to executive group on February 17,
1998, for 1997 performance at a price of $50.77083 per share, which
options vest one-third upon the first anniversary of grant, one-third upon
the second anniversary, and one-third upon the third anniversary.
(6) Pursuant to Mr. Richard's amended employment agreement, on May 20, 1996,
Mr. Richard was granted a restricted stock award for 44,677 (29,785
pre-stock split) shares of common stock at a value of $1,459,465, as based
on the closing price of $49.00 per share on May 20, 1996. The shares vest
annually in five equal installments commencing January 2, 1997. Mr.
Richard receives dividends on the restricted stock as dividends are
declared on shares of common stock. At December 31, 1999, Mr. Richard held
17,871 shares of restricted stock, at an aggregate value of $1,130,341.
74
<PAGE> 76
RETIREMENT INCOME PLAN
A non-contributory defined benefit plan is maintained for all eligible employees
of the Corporation's participating subsidiaries. The Plan consists of two
options: a final average pay option and (as of January 1, 2000) as account
balance option. Eligible participants in the plan will be offered a one-time
election to remain in the final average pay option or switch to the account
balance option. Employees will make their election between March 15, 2000 and
April 30, 2000. Eligible employees hired on or after January 1, 2000 will
automatically be enrolled in the account balance option.
The annual benefit under the final average pay option is based upon final
average annual compensation and years of credited service. Final average annual
compensation is calculated using base compensation (shown in the "Summary
Compensation Table" as "Salary") paid to the employee for the highest 36 months
of the last 60 months prior to retirement.
Estimated annual benefits payable under the final average pay option upon
retirement are as follows with respect to the specified remuneration and years
of credited service.
ESTIMATED ANNUAL BENEFITS AS OF JANUARY 1, 2000, FROM RETIREMENT INCOME PLAN *
<TABLE>
<CAPTION>
Representative Years of Credited Service **
Final Average
Annual Compensation 15 20 25 30 35 40
-- -- -- -- -- --
$ $ $ $ $ $ $
<S> <C> <C> <C> <C> <C> <C>
250,000 54,250 72,333 90,416 108,500 114,750 121,000
300,000 65,500 87,333 109,166 131,000 138,500 146,000
400,000 88,000 117,333 146,666 176,000 186,000 196,000
500,000 110,500 147,333 184,166 221,000 233,500 246,000
600,000 133,000 177,333 221,666 266,000 281,000 296,000
800,000 178,000 237,333 296,666 356,000 376,000 396,000
1,000,000 223,000 297,333 371,666 446,000 471,000 496,000
1,200,000 268,000 357,333 446,666 536,000 566,000 596,000
</TABLE>
* Estimates are based upon a straight-life annuity and the assumptions that
(a) the final average pay option of the Corporation's present retirement
plan will be maintained and (b) retirement will not occur before age 65.
These benefits are not subject to deduction for social security or other
charges. Should an annual benefit exceed limitations imposed by federal
law, the excess will be paid by the participating subsidiary as a
supplemental pension under the Pension Restoration Plan. Such supplemental
pensions are not available to these executives until retirement or
termination of employment.
** As of January 1, 2000, the credited years of service for retirement
benefits for the individuals named in the Summary Compensation Table were
as follows: Mr. Richard, 8 years; Mr. O'Donnell, 29 years; Mr. Schwolsky, 8
years; Ms. Abbott, 4 years; and Ms. Hammick, 2 years.
75
<PAGE> 77
PERFORMANCE TABLE
The following tables demonstrates a five-year comparison of cumulative total
returns for the Corporation, the S&P 500, and the S&P Natural Gas Utility Index.
FIVE-YEAR COMPARISON OF CUMULATIVE TOTAL RETURN*
<TABLE>
<CAPTION>
1994 1995 1996 1997 1998 1999
$ $ $ $ $ $
------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Columbia Energy 100.00 186.70 273.86 342.81 383.45 426.55
S&P 500 Index 100.00 137.58 169.17 225.60 290.08 351.12
S&P Natural Gas Utility
Index 100.00 141.44 187.96 221.77 243.35 289.74
</TABLE>
* Assumes $100 invested on December 31, 1994 and reinvestment of dividends.
76
<PAGE> 78
STANDARD DIRECTORS' COMPENSATION*
1999 Directors' Compensation for Board and Committee Meetings:
<TABLE>
<CAPTION>
Retainer Meeting Fee Chairman's and Lead
$ $ Director Retainers
$
-------- ----------- --------------------
<S> <C> <C> <C>
Board 27,250 1,250 5,000**
Audit - 1,000 3,000
Compensation - 1,000 3,000
Executive 6,000 800 -
Finance - 1,000 3,000
Corporate Governance - 1,000 3,000
</TABLE>
* The nonemployee Directors are also eligible to receive non-qualified stock
options pursuant to the Corporation's Long-Term Incentive Plan. If the
Corporation's Total Shareholder Return performance, compared with its
peers, is at the third quartile (above median), then nonemployee Directors
receive options for 3,000 shares of common stock; at the fourth (top)
quartile, options for 6,000 shares. If Total Shareholder Return performance
is at or below the median, then the nonemployee Directors receive no
options. The options vest one-third upon grant, one-third one year after
grant, and one-third two years after grant, and they have a ten-year term.
For 1999 performance, the Directors will receive options for 3,000 shares,
granted and priced as of February 22, 2000, at a purchase price of $58.9375
per share of common stock. See the section entitled "1999 Executive
Compensation Plan" for a discussion of the terms of the option grants.
** Lead Director's retainer.
No officer received any compensation for services as a Director while also
serving as an officer of the Corporation.
The Corporation offers medical coverage to current nonemployee Directors and
pays the premium associated with their participation. The Corporation also
reimburses them for the cost of Medicare Part B, if applicable. In addition,
nonemployee Directors may elect to defer compensation for distribution at a
later date. Deferred amounts will accrue interest at the prime rate under the
Deferred Compensation Plan for Outside Directors or may be deferred into the
Phanton Stock Plan for Outside Directors. Deferrals may be paid in a lump sum or
in installments but will be automatically paid in a lump sum under the Deferred
Compensation Plan for Outside Directors following certain specified changes in
control of the Corporation.
Following its approval by the stockholders at the 1996 Annual Meeting, the
Phantom Stock Plan for Outside Directors was established. All of the Directors
except two (one of whom has since retired) elected to participate in the plan in
lieu of participating in the Retirement Plan for Outside Directors.
Participating directors received phantom shares of equivalent actuarial value
under the Phantom Stock Plan for Outside Directors. The Retirement Plan for
Outside Directors is not available for nonemployee Directors assuming office
after April 1996; rather, they participate in the Phantom Stock Plan for Outside
Directors, under which they receive 3,000 phantom shares upon being elected to
the Board. Payment of cash benefits will commence upon termination of Board
service.
For the Director(s) remaining in the Retirement Plan, each nonemployee Director
with a minimum of five years' service on the Board who retires after attaining
age 65 or becoming disabled could receive annual retirement payments equal to
the amount of the annual retainer for Board service at the time of retirement.
Payments under the Retirement Plan will cease at the death of the Director
unless the Director elected an actuarial equivalent option or, if death occurs
before retirement but after eligibility is established, at the death of the
surviving spouse. In the event of certain specified changes in control of the
Corporation, a Director (regardless of years of service on the Board) could
elect a lump sum payment equal to the present value of the retainer at the time
of the election times the number of years of Board service, with a minimum of
ten years.
The director's compensation amounted to $1,092,000.
77
<PAGE> 79
PART III(b). SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS, DIRECTORS AND
MANAGEMENT
The following table sets forth the beneficial ownership of common stock by
stockholders, if any, who own greater than 5 percent of the outstanding shares
as of January 31, 2000, by Directors, by each of the executive officers whose
compensation is disclosed in the Summary Compensation Table, and by all
Directors and such executive officers as a group. Except as otherwise noted, the
persons named in the table below have sole voting and investment power with
respect to all shares shown as beneficially owned by them.
<TABLE>
<CAPTION>
(1) (2) (3) (4)
Title of Name and Address Amount and Nature of Percent
Class Beneficial Ownership** of
Class
-------- ---------------- ----------------------------------------------------------------- -------
Shared Sole Shared Sole
Voting Voting Investment Investment Total
Power Power Power Power Owned
------ ------ ---------- ---------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
5% HOLDERS
J. P. Morgan & Co,
Incorporated***
60 Wall Street 88,425 6,749,355 111,025 8,959,774 9,071,599 11.2
Common New York, NY 10260
-----------------------------------------------------------------------------------------------------------------------------
Common R. F. Albosta 20,000 *
D
-----------------------------------------------------------------------------------------------------------------------------
I Common R. H. Beeby 20,000(1) *
-----------------------------------------------------------------------------------------------------------------------------
R Common W. K. Cadman 20,000 *
-----------------------------------------------------------------------------------------------------------------------------
E Common J. P. Heffernan 26,000 *
-----------------------------------------------------------------------------------------------------------------------------
C Common K. L. Hendricks 11,000 *
-----------------------------------------------------------------------------------------------------------------------------
T Common M. T. Hopkins 26,805.622 *
-----------------------------------------------------------------------------------------------------------------------------
O Common J. B. Johnston 10,534.422 *
-----------------------------------------------------------------------------------------------------------------------------
R Common M. Jozoff 21,000 *
-----------------------------------------------------------------------------------------------------------------------------
S Common W. E. Lavery 20,150 *
-----------------------------------------------------------------------------------------------------------------------------
Common G. E. Mayo 22,000 *
-----------------------------------------------------------------------------------------------------------------------------
Common D. E. Olesen 20,054.96 *
-----------------------------------------------------------------------------------------------------------------------------
Common O. G. Richard III 378,795.059(2) *
=============================================================================================================================
O
Common C. G. Abbott 65,104.127(3) *
F -----------------------------------------------------------------------------------------------------------------------------
F Common P. A. Hammick 11,122.682(7) *
-----------------------------------------------------------------------------------------------------------------------------
I
Common M. W. O'Donnell 82,096.576(4) *
C -----------------------------------------------------------------------------------------------------------------------------
E Common P. M. Schwolsky 72,422.185(5) *
R
=============================================================================================================================
S All Executive Officers &
Common Directors (16 persons) as a 827,085.633(6) *
Group
=============================================================================================================================
</TABLE>
* Aggregate stock ownership (including exercisable options) as a percentage
of class is less than 1 percent.
** Includes an allocation of shares held by the Trustee of the Employees'
Thrift Plan of Columbia Energy Group for the executive officers as of
December 31, 1999. Also includes currently exercisable options and those
exercisable within 60 days. All holdings of the Directors, except Messrs.
Johnston and Richard and Ms. Hendricks, include beneficial ownership of
18,500 shares, which may be acquired pursuant to stock options awarded
under Long-Term Incentive Plan (LTIP). The holdings of Mr. Johnston and
Ms. Hendricks include beneficial ownership of 9,500 shares, which may be
acquired pursuant to stock options awarded under the LTIP.
*** Information for this beneficial owner was obtained solely from owner's
Schedule 13-G dated December 31, 1999 and filed with the U.S. Securities
and Exchange Commission.
78
<PAGE> 80
(1) Includes beneficial ownership of 1,500 shares with shared investment
power.
(2) Includes beneficial ownership of 320,000 shares which may be acquired
pursuant to stock options awarded under LTIP.
(3) Includes beneficial ownership of 1,000 shares with shared voting and
investment power. Includes beneficial ownership of 60,834 shares which may
be acquired pursuant to stock options awarded under LTIP.
(4) Includes beneficial ownership of 73,134 shares which may be acquired
pursuant to stock options awarded under LTIP.
(5) Includes beneficial ownership of 68,334 shares which may be acquired
pursuant to stock options awarded under LTIP.
(6) Includes beneficial ownership of 718,802 shares which may be acquired
pursuant to stock options awarded under LTIP.
(7) Includes beneficial ownership of 11,000 shares which may be acquired
pursuant to stock options awarded under LTIP.
79
<PAGE> 81
Part III(c). Contracts and transactions.
None.
Part III(d). Indebtedness.
None.
Part III(e). Participation in bonus and profit sharing arrangement.
See Item 6 Part III(a) above.
Part III(f). Directors and officers rights to indemnity.
Provisions for indemnification of directors and officers are included in the
Certificate of Incorporation or By-Laws in accordance with applicable laws.
DIRECTORS AND OFFICERS' LIABILITY INSURANCE - Insurance is purchased for all of
the Registrant's directors and officers, plus the directors and officers of the
subsidiary companies. This insurance also indemnifies the Registrant and its
subsidiary companies against any amounts paid by them as allowed by Corporate
law or By-Laws of the Registrant to covered directors and officers. The annual
cost thereof to the Registrant and its subsidiary companies was $850,000.
80
<PAGE> 82
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS
Part I. Expenditures for any political party, candidate for public office
or holder of such office, or any committee or agent therefor.
<TABLE>
<CAPTION>
Recipient
Name of or
Company Beneficiary Purpose Accounts Charged Amount
- ------- ----------- ------- ---------------- ------
<S> <C> <C> <C> <C>
CKY Employee Political Legal, Acctg. & Solicitation Admin & General $86,629
CMD Action Fund Services rendered by
COH employees for Employees
CPA Political Action Fund
CGV registered with the Federal
Election Committee (No. C00054890)
</TABLE>
Part II. Expenditures for any citizens group or public relations counsel.
<TABLE>
<CAPTION>
Calendar Year 1999
------------------
Name of Company and Name
or Number of Recipients
or Beneficiaries Purpose Accounts Charged Amount
($)
------------------------ ------- ---------------- ------
<S> <C> <C> <C>
CKY
Chamber of Commerce B Admin & General 2,510
COH
63 Various Chambers of Commerce B Admin & General 36,610
Ohio Chamber of Commerce B Admin & General 10,640
Better Business Bureaus B Admin & General 1,645
CPA
25 Various Chambers of Commerce B Admin & General 16,476
York Chamber of Commerce B Admin & General 12,455
Business Organization B Admin & General 7,000
Pittsburg Regional Alliance B Admin & General 21,000
CGV
28 Various Chambers of Commerce B Admin & General 19,000
TCO
6 Various Chambers of Commerce A Admin & General 18,187
CPC
31 Citizens Groups B Admin & General 6,110
</TABLE>
A - Information and Education
B - Economic Development
81
<PAGE> 83
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS
Part I. Intercompany Contracts.
CONFIDENTIAL TREATMENT REQUESTED
82
<PAGE> 84
Part I. Intercompany Contracts. (Continued)
CONFIDENTIAL TREATMENT REQUESTED
83
<PAGE> 85
Part I. Intercompany Contracts. (Continued)
CONFIDENTIAL TREATMENT REQUESTED
Part II. System contracts to purchase goods or services from any
affiliate (other than a System company) or a company in which any
officer or director is a partner or owns 5% or more of any class of
equity securities.
CONFIDENTIAL TREATMENT REQUESTED
Part III. System contracts with others on a continuing basis for management,
supervisory, or financial advisory review.
(a) TCO has contracted with the below firm to provide various services.
<TABLE>
<CAPTION>
Date of Court
Name Scope of Services Compensation Approval
---- ----------------- ------------ -------------
<S> <C> <C> <C> <C>
Lehman Brothers Inc. Financial Advisor and $105,775 12/15/98
Investment Banker to the
Official Committee of
Unsecured Creditors toTCO
</TABLE>
(b) The Registrant's distribution companies contracted with the following
organizations to provide various professional services.
<TABLE>
<CAPTION>
Name Scope of Services Compensation
---- ----------------- ------------
<S> <C> <C>
Kingwood Consulting Communications $408,695
Consultant to COH
Gannett Flemming Communications $ 25,463
Consultant to COH
Thomas Green & Assoc. Governmental Affairs $108,618
to COH
Public Policy Solutions Governmental Affairs to COH $ 72,967
</TABLE>
84
<PAGE> 86
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
Part I. CONFIDENTIAL TREATMENT REQUESTED
85
<PAGE> 87
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
Part II. Organizational chart
CONFIDENTIAL TREATMENT REQUESTED
Part III. Columbia Energy Group's Aggregate Investment in EWGs.
CONFIDENTIAL TREATMENT REQUESTED
86
<PAGE> 88
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS
Financial Statements included in Form U5S:
CONSOLIDATED BALANCE SHEET AS OF DECEMBER 31, 1999
<TABLE>
<S> <C>
Columbia Energy Group and Subsidiaries ..................... F-1
Columbia Electric Corporation and Subsidiaries ............. F-1A
Columbia Energy Group Capital Corporation and Subsidiaries F-1B
Columbia LNG Corporation and Subsidiary .................... F-1C
Columbia Energy Services Corporation and Subsidiaries ...... F-1D
Columbia Network Services Corporation and Subsidiary........ F-1E
Columbia Energy Resources, Inc. and Subsidiaries............ F-1F
Columbia Pipeline Company and Subsidiary.................... F-1G
Columbia Finance Corporation and Subsidiary................. F-1H
Columbia Propane Corporation and Subsidiaries............... F-1I
SUMMARY OF CONSOLIDATING BALANCE SHEET ENTRIES AS OF
DECEMBER 31, 1999
Columbia Energy Group and Subsidiaries...................... F-2
Columbia Electric Corporation and Subsidiaries ............. F-2A
Columbia Energy Group Capital Corporation and Subsidiaries F-2B
Columbia LNG Corporation and Subsidiary..................... F-2C
Columbia Energy Services Corporation and Subsidiaries ...... F-2D
Columbia Network Services Corporation and Subsidiary........ F-2E
Columbia Energy Resources, Inc. and Subsidiaries............ F-2F
Columbia Pipeline Company and Subsidiary.................... F-2G
Columbia Finance Corporation and Subsidiary................. F-2H
Columbia Propane Corporation and Subsidiaries............... F-2I
CONSOLIDATING STATEMENT OF INCOME FOR THE YEAR ENDED
DECEMBER 31, 1999
Columbia Energy Group and Subsidiaries...................... F-3
Columbia Electric Corporation and Subsidiaries.............. F-3A
Columbia Energy Group Capital Corporation and Subsidiaries.. F-3B
Columbia LNG Corporation and Subsidiary .................... F-3C
Columbia Energy Services Corporation and Subsidiaries ...... F-3D
Columbia Network Services Corporation and Subsidiary........ F-3E
Columbia Energy Resources, Inc. and Subsidiaries............ F-3F
Columbia Pipeline Company and Subsidiary.................... F-3G
Columbia Finance Corporation and Subsidiary................. F-3H
Columbia Propane Corporation and Subsidiaries............... F-3I
SUMMARY OF CONSOLIDATING STATEMENT OF INCOME ENTRIES FOR
THE YEAR ENDED DECEMBER 31, 1999
Columbia Energy Group and Subsidiaries...................... F-4
Columbia Electric Corporation and Subsidiaries.............. F-4A
Columbia Energy Group Capital Corporation and Subsidiaries F-4B
Columbia LNG Corporation and Subsidiary..................... F-4C
Columbia Energy Services Corporation and Subsidiaries....... F-4D
Columbia Network Services Corporation and Subsidiary........ F-4E
</TABLE>
87
<PAGE> 89
<TABLE>
<S> <C>
Columbia Energy Resources, Inc. and Subsidiaries............ F-4F
Columbia Pipeline Company and Subsidiary.................... F-4G
Columbia Finance Corporation and Subsidiary................. F-4H
Columbia Propane Corporation and Subsidiaries............... F-4I
CONSOLIDATING STATEMENT OF COMMON STOCK EQUITY FOR THE
YEAR ENDED DECEMBER 31, 1999
Columbia Energy Group and Subsidiaries ..................... F-5
Columbia Electric Corporation and Subsidiaries.............. F-5A
Columbia Energy Group Capital Corporation and Subsidiaries.. F-5B
Columbia LNG Corporation and Subsidiary .................... F-5C
Columbia Energy Services Corporation and Subsidiaries ...... F-5D
Columbia Network Services Corporation and Subsidiary........ F-5E
Columbia Energy Resources, Inc. and Subsidiaries............ F-5F
Columbia Pipeline Company and Subsidiary.................... F-5G
Columbia Finance Corporation and Subsidiary................. F-5H
Columbia Propane Corporation and Subsidiaries............... F-5I
CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1999
Columbia Energy Group and Subsidiaries...................... F-6
Columbia Electric Corporation and Subsidiaries.............. F-6A
Columbia Energy Group Capital Corporation and Subsidiaries.. F-6B
Columbia LNG Corporation and Subsidiary..................... F-6C
Columbia Energy Services Corporation and Subsidiaries ...... F-6D
Columbia Network Services Corporation and Subsidiary........ F-6E
Columbia Energy Resources, Inc. and Subsidiaries............ F-6F
Columbia Pipeline Company and Subsidiary.................... F-6G
Columbia Finance Corporation and Subsidiary................. F-6H
Columbia Propane Corporation and Subsidiaries............... F-6I
</TABLE>
88
<PAGE> 90
F-1 (1 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1 F-1 F-1 F-1 Consolidating
Page 2 Page 3 Page 4 Page 5 Combined Entries Consolidated
------ ------ ------ ------ -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
ASSETS
Property, Plant and Equipment
Gas utility and other plant, at original cost .... * * * * * * 8,150,622
Accumulated depreciation.......................... (3,708,848)
------ ------ ------ ------ -------- ------------- ------------
Net Gas Utility and Other Plant .................. 4,441,774
------ ------ ------ ------ -------- ------------- ------------
Gas and oil producing properties, full cost method
United States cost center....................... 823,522
Canadian cost center............................ 12,554
Accumulated depletion ............................ (251,576)
------ ------ ------ ------ -------- ------------- ------------
Net Gas and Oil Producing Properties ............. 584,500
------ ------ ------ ------ -------- ------------- ------------
Net Property, Plant, and Equipment ................. 5,026,274
------ ------ ------ ------ -------- ------------- ------------
Investments and Other Assets
Accounts receivable - noncurrent ................. 25,083
Unconsolidated affiliates ........................ 67,634
Net assets of discontinued operations............. (9,714)
Assets held for sale ............................. 17
Other ............................................ 36,465
------ ------ ------ ------ -------- ------------- ------------
Total Investments and Other Assets ................. 119,485
------ ------ ------ ------ -------- ------------- ------------
Investments in Subsidiaries
Capital stock .................................... -
Equity in undistributed earnings of
subsidiaries .................................... -
Notes receivable ................................. -
Other investments................................. -
------ ------ ------ ------ -------- ------------- ------------
Total Investments in Subsidiaries .................. -
------ ------ ------ ------ -------- ------------- ------------
Current Assets
Cash and temporary cash investments .............. 62,583
Accounts receivable, net
Customers ...................................... 465,380
Intercompany ................................... -
Other .......................................... 87,060
Income tax refunds................................ -
Gas inventory ....................................
144,914
Other inventories, at average cost ............... 71,092
Prepayments ...................................... 74,289
Regulatory assets ................................ 52,706
Underrecovered gas costs ......................... 40,510
Deferred property tax............................. 79,874
Exchange gas receivable........................... 275,384
Other ............................................ 39,458
------ ------ ------ ------ -------- ------------- ------------
Total Current Assets ............................... 1,393,250
------ ------ ------ ------ -------- ------------- ------------
Deferred Charges ................................... 198,850
Long-term Regulatory Assets......................... 358,070
------ ------ ------ ------ -------- ------------- ------------
TOTAL ASSETS ....................................... 7,095,929
====== ====== ====== ====== ======== ============= ============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 91
F-1 (2 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1 Page 2
CER(a) TCO CGT CLG(a) CKY Total
-------- ----------- ----------- -------- --------- ----------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... * 3,536,732 1,308,107 * 211,501 *
Accumulated depreciation........................... (1,448,365) (1,049,218) (88,304)
-------- ----------- ----------- -------- --------- ----------
Net Gas Utility and Other Plant ................... 2,088,367 258,889 123,197
-------- ----------- ----------- -------- --------- ----------
Gas and oil producing properties, full cost method.
United States cost center........................ - - -
Canadian cost center............................. - - -
Accumulated depletion ............................. - - -
-------- ----------- ----------- -------- --------- ----------
Net Gas and Oil Producing Properties .............. - - -
-------- ----------- ----------- -------- --------- ----------
Net Property, Plant, and Equipment .................. 2,088,367 258,889 123,197
-------- ----------- ----------- -------- --------- ----------
Investments and Other Assets
Accounts receivable - noncurrent .................. 50,386 - -
Unconsolidated affiliates ......................... 20,948 - -
Net assets of discontinued operations.............. - - -
Assets held for sale .............................. - - -
Other ............................................. - - -
-------- ----------- ----------- -------- --------- ----------
Total Investments and Other Assets .................. 71,334 - -
-------- ----------- ----------- -------- --------- ----------
Investments in Subsidiaries
Capital stock ..................................... - - -
Equity in undistributed earnings of
subsidiaries ..................................... - - -
Notes receivable .................................. - - -
Other investments.................................. - - -
-------- ----------- ----------- -------- --------- ----------
Total Investments in Subsidiaries ................... - - -
-------- ----------- ----------- -------- --------- ----------
Current Assets
Cash and temporary cash investments ............... 193 62 1,204
Accounts receivable, net
Customers ....................................... 47,151 8,247 25,358
Intercompany .................................... 30,387 4,262 6,432
Other ........................................... 13,446 1,541 110
Income tax refunds................................. - - -
Gas inventory ..................................... - - 17,665
Other inventories, at average cost ................ 8,910 5,650 -
Prepayments ....................................... 14,601 4,476 360
Regulatory assets ................................. 25,892 3,218 572
Underrecovered gas costs .......................... - - 20,193
Deferred property tax.............................. 29,378 308 1,301
Exchange gas receivable............................ 20,454 11,998 24,869
Other ............................................. 20,625 3,257 -
-------- ----------- ----------- -------- --------- ----------
Total Current Assets ................................ 211,037 43,019 98,064
-------- ----------- ----------- -------- --------- ----------
Deferred Charges .................................... 3,951 667 810
Long-term Regulatory Assets.......................... 134,898 8,264 6,762
-------- ----------- ----------- -------- --------- ----------
TOTAL ASSETS ........................................ 2,509,587 310,839 228,833
======== =========== =========== ======== ========= ==========
</TABLE>
(a) CER includes four subsidiaries and CLG includes one subsidiary as noted in
Item 1. Consolidating financial statements of CER and CLG are presented herewith
in Exhibits F-1F through F-6F and F-1C through F-6C, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 92
F-1 (3 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1 Page 3
COH CMD CPA CGV CG Total
----------- --------- ---------- ---------- ------ ----------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... 1,406,927 77,688 599,299 433,301 * *
Accumulated depreciation........................... (607,161) (31,034) (192,562) (88,845)
----------- --------- ---------- ---------- ------ ----------
Net Gas Utility and Other Plant ................... 799,766 46,654 406,737 344,456
----------- --------- ---------- ---------- ------ ----------
Gas and oil producing properties, full cost method.
United States cost center........................ - - - -
Canadian cost center............................. - - - -
Accumulated depletion ............................. - - - -
----------- --------- ---------- ---------- ------ ----------
Net Gas and Oil Producing Properties .............. - - - -
----------- --------- ---------- ---------- ------ ----------
Net Property, Plant, and Equipment .................. 799,766 46,654 406,737 344,456
----------- --------- ---------- ---------- ------ ----------
Investments and Other Assets
Accounts receivable - noncurrent .................. - - - -
Unconsolidated affiliates ......................... - - - -
Net assets of discontinued operations.............. - - - -
Assets held for sale .............................. - - - -
Other ............................................. - - - -
----------- --------- ---------- ---------- ------ ----------
Total Investments and Other Assets .................. - - - -
----------- --------- ---------- ---------- ------ ----------
Investments in Subsidiaries
Capital stock ..................................... - - - -
Equity in undistributed earnings of
subsidiaries ..................................... - - - -
Notes receivable .................................. - - - -
Other investments.................................. - - - -
----------- --------- ---------- ---------- ------ ----------
Total Investments in Subsidiaries ................... - - - -
----------- --------- ---------- ---------- ------ ----------
Current Assets
Cash and temporary cash investments ............... 7,063 373 48 1,099
Accounts receivable, net
Customers ....................................... (3,173) 6,833 82,216 34,436
Intercompany .................................... 161,061 1,414 889 5,796
Other ........................................... (1) 71 1,090 311
Income tax refunds................................. - - - -
Gas inventory ..................................... 60,999 2,877 49,791 13,582
Other inventories, at average cost ................ 261 187 593 493
Prepayments ....................................... 41,420 1,354 1,575 1,541
Regulatory assets ................................. 16,397 385 4,790 1,452
Underrecovered gas costs .......................... - 4,271 27,177 (11,131)
Deferred property tax.............................. 48,887 - - -
Exchange gas receivable............................ 139,848 13,281 51,749 13,185
Other ............................................. - - - 6,391
----------- --------- ---------- ---------- ------ ----------
Total Current Assets ................................ 472,762 31,046 219,918 67,155
----------- --------- ---------- ---------- ------ ----------
Deferred Charges .................................... 16,087 242 977 2,102
Long-term Regulatory Assets.......................... 124,776 2,590 72,627 8,153
----------- --------- ---------- ---------- ------ ----------
TOTAL ASSETS ........................................ 1,413,391 80,532 700,259 421,866
=========== ========= ========== ========== ====== ==========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 93
F-1 (4 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1 Page 4
CS CIC CES(a) CPC(a) CEC(a) Total
--------- -------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... 56,513 * * * * *
Accumulated depreciation........................... (27,188)
--------- -------- ---------- ---------- ---------- ----------
Net Gas Utility and Other Plant ................... 29,325
--------- -------- ---------- ---------- ---------- ----------
Gas and oil producing properties, full cost method.
United States cost center........................ -
Canadian cost center............................. -
Accumulated depletion ............................. -
--------- -------- ---------- ---------- ---------- ----------
Net Gas and Oil Producing Properties .............. -
--------- -------- ---------- ---------- ---------- ----------
Net Property, Plant, and Equipment .................. 29,325
--------- -------- ---------- ---------- ---------- ----------
Investments and Other Assets
Accounts receivable - noncurrent .................. -
Unconsolidated affiliates ......................... -
Net assets of discontinued operations.............. -
Assets held for sale .............................. -
Other ............................................. -
--------- -------- ---------- ---------- ---------- ----------
Total Investments and Other Assets .................. -
--------- -------- ---------- ---------- ---------- ----------
Investments in Subsidiaries
Capital stock ..................................... -
Equity in undistributed earnings of
subsidiaries ..................................... -
Notes receivable .................................. -
Other investments.................................. -
--------- -------- ---------- ---------- ---------- ----------
Total Investments in Subsidiaries ................... -
--------- -------- ---------- ---------- ---------- ----------
Current Assets
Cash and temporary cash investments ............... 120
Accounts receivable, net
Customers ....................................... -
Intercompany .................................... 47,063
Other ........................................... 2,266
Income tax refunds................................. -
Gas inventory ..................................... -
Other inventories, at average cost ................ -
Prepayments ....................................... 178
Regulatory assets ................................. -
Underrecovered gas costs .......................... -
Deferred property tax.............................. -
Exchange gas receivable............................ -
Other ............................................. 2,049
--------- -------- ---------- ---------- ---------- ----------
Total Current Assets ................................ 51,676
--------- -------- ---------- ---------- ---------- ----------
Deferred Charges .................................... 21,300
Long-term Regulatory Assets.......................... -
--------- -------- ---------- ---------- ---------- ----------
TOTAL ASSETS ........................................ 102,301
========= ======== ========== ========== ========== ==========
</TABLE>
(a) CES includes five subsidiaries, CPC includes three subsidiaries and CEC
includes sixteen subsidiaries as noted in Item 1. Consolidating financial
statements of CES, CPC and CEC are presented herewith in Item 10, Exhibits F-1D
through F-6D, F-1I through F-6I and F-1A through F-6A, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 94
F-1 (5 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1 Page 5
CCC (a) CAT CNS (a) CPL (a) CFC (a) Total
--------- ----- --------- --------- --------- ----------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... * * * * * *
Accumulated depreciation...........................
--------- ----- --------- --------- --------- ----------
Net Gas Utility and Other Plant ...................
--------- ----- --------- --------- --------- ----------
Gas and oil producing properties, full cost method.
United States cost center........................
Canadian cost center.............................
Accumulated depletion .............................
--------- ----- --------- --------- --------- ----------
Net Gas and Oil Producing Properties ..............
--------- ----- --------- --------- --------- ----------
Net Property, Plant, and Equipment ..................
--------- ----- --------- --------- --------- ----------
Investments and Other Assets
Accounts receivable - noncurrent ..................
Unconsolidated affiliates .........................
Net assets of discontinued operations..............
Assets held for sale ..............................
Other .............................................
--------- ----- --------- --------- --------- ----------
Total Investments and Other Assets ..................
--------- ----- --------- --------- --------- ----------
Investments in Subsidiaries
Capital stock .....................................
Equity in undistributed earnings of
subsidiaries .....................................
Notes receivable ..................................
Other investments..................................
--------- ----- --------- --------- --------- ----------
Total Investments in Subsidiaries ...................
--------- ----- --------- --------- --------- ----------
Current Assets
Cash and temporary cash investments ...............
Accounts receivable, net
Customers .......................................
Intercompany ....................................
Other ...........................................
Income tax refunds.................................
Gas inventory .....................................
Other inventories, at average cost ................
Prepayments .......................................
Regulatory assets .................................
Underrecovered gas costs ..........................
Deferred property tax..............................
Exchange gas receivable............................
Other .............................................
--------- ----- --------- --------- --------- ----------
Total Current Assets ................................
--------- ----- --------- --------- --------- ----------
Deferred Charges ....................................
Long-term Regulatory Assets..........................
--------- ----- --------- --------- --------- ----------
TOTAL ASSETS ........................................
========= ===== ========= ========= ========= ==========
</TABLE>
(a) Both CCC and CNS include two subsidiaries, CPL and CFC include one
subsidiary as noted in Item 1. Consolidating financial statements of CCC, CNS,
CPL and CFC are presented herewith in Item 10, Exhibits F-1B through F-6B, F-1E
through F-6E, F-1G through F-6G and F-1H through F-6H, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 95
F-1 (6 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Balance Sheet as of December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1 F-1 F-1 F-1 Consolidating
Page 7 Page 8 Page 9 Page 10 Combined Entries Consolidated
------ ------ ------ ------- -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
CAPITALIZATION AND LIABILITIES
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares ...... * * * * * * 837
Subsidiaries - common stock .................... --
Additional paid in capital ..................... 1,611,603
Retained earnings .............................. 586,864
Accumulated foreign currency translation
adjustment .................................... 308
Unearned employee compensation ................. (584)
Treasury stock ................................. (134,975)
Equity for debt recapitalization ............... --
------ ------ ------ ------- -------- ------------- ------------
Total common stock equity ........................ 2,064,053
------ ------ ------ ------- -------- ------------- ------------
Long-term debt ................................... 1,639,627
Installment promissory notes payable ............. --
------ ------ ------ ------- -------- ------------- ------------
Total Capitalization ............................... 3,703,680
------ ------ ------ ------- -------- ------------- ------------
Current Liabilities
Short-term debt .................................. 465,461
Current maturities of L.T. debt .................. 311,332
Accounts and drafts payable ...................... 267,534
Intercompany notes and loans - current maturities --
Intercompany short-term loans .................... --
Intercompany accounts payable .................... --
Accrued taxes .................................... 198,994
Accrued interest ................................. 32,452
Estimated rate refunds ........................... 21,373
Estimated supplier obligations ................... 20
Overrecovered gas costs .......................... 14,574
Transportation and exchange gas payable .......... 297,519
Deferred income taxes ............................ --
Regulatory liabilities ........................... 24,850
Other ............................................ 408,358
------ ------ ------ ------- -------- ------------- ------------
Total Current Liabilities .......................... 2,042,467
------ ------ ------ ------- -------- ------------- ------------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent ............... 674,085
Investment tax credits ........................... 32,647
Postretirement benefits other than pensions ...... 96,437
Regulatory liabilities ........................... 36,404
Deferred revenue ................................. 300,759
Other ............................................ 209,450
------ ------ ------ ------- -------- ------------- ------------
Total Other Liabilities and Deferred Credits ....... 1,349,782
------ ------ ------ ------- -------- ------------- ------------
TOTAL CAPITALIZATION AND LIABILITIES ............... 7,095,929
====== ====== ====== ======= ======== ============= ============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 96
F-1 (7 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Balance Sheet as of December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1 Page 7
CER TCO CGT CLG(a) CKY Total
------- ---------- ---------- -------- --------- -------
<S> <C> <C> <C> <C> <C> <C>
CAPITALIZATION AND LIABILITIES
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares ........... * -- -- * -- *
Subsidiaries - common stock ......................... 48 20 23,806
Additional paid in capital .......................... 1,512,025 82,429 174
Retained earnings ................................... (492,380) 31,417 54,664
Accumulated foreign currency translation adjustment . -- -- --
Unearned employee compensation ...................... -- -- --
Treasury stock ...................................... -- -- --
Equity for debt recapitalization .................... -- -- --
------- ---------- ---------- -------- --------- -------
Total common stock equity ............................. 1,019,693 113,866 78,644
------- ---------- ---------- -------- --------- -------
Long-term debt ........................................ 477 -- 199
Installment promissory notes payable .................. 643,000 88,414 47,860
------- ---------- ---------- -------- --------- -------
Total Capitalization .................................... 1,663,170 202,280 126,703
------- ---------- ---------- -------- --------- -------
Current Liabilities
Short-term debt ....................................... -- -- --
Current maturities of L.T. debt ....................... 41 -- 19
Accounts and drafts payable ........................... 11,223 1,993 4,785
Intercompany notes and loans - current maturities ..... -- -- 6,634
Intercompany short-term loans ......................... 100,424 -- --
Intercompany accounts payable ......................... 59,544 18,946 10,939
Accrued taxes ......................................... 82,076 21,801 5,722
Accrued interest ...................................... 490 116 385
Estimated rate refunds ................................ 5,252 -- 518
Estimated supplier obligations ........................ 20 -- --
Overrecovered gas costs ............................... -- -- 11,131
Transportation and exchange gas payable ............... 38,253 9,168 31,486
Deferred income taxes ................................. -- -- 3,049
Regulatory liabilities ................................ 21,779 3,071 --
Other ................................................. 100,176 22,462 13,667
------- ---------- ---------- -------- --------- -------
Total Current Liabilities ............................... 419,278 77,557 88,335
------- ---------- ---------- -------- --------- -------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent .................... 266,079 26,220 6,512
Investment tax credits ................................ 880 244 1,615
Postretirement benefits other than pensions ........... 12,759 2,576 94
Regulatory liabilities ................................ 13,295 153 4,433
Deferred revenue ...................................... -- -- --
Other ................................................. 134,126 1,809 1,141
------- ---------- ---------- -------- --------- -------
Total Other Liabilities and Deferred Credits ............ 427,139 31,002 13,795
------- ---------- ---------- -------- --------- -------
TOTAL CAPITALIZATION AND LIABILITIES .................... 2,509,587 310,839 228,833
======= ========== ========== ======== ========= =======
</TABLE>
(a) CER includes four subsidiaries and CLG includes one subsidiary as noted in
Item 1. Consolidating financial statements of CER and CLG are presented herewith
in Item 10, Exhibits F-1F through F-6F and F-1C through F-6C, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 97
F-1 (8 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Balance Sheet as of December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1 Page 8
COH CMD CPA CGV CG Total
----------- --------- ---------- ---------- ------ ----------
<S> <C> <C> <C> <C> <C> <C>
CAPITALIZATION AND LIABILITIES
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares.......... - - - - * *
Subsidiaries - common stock ....................... 119,240 72 85,128 65,305
Additional paid in capital ........................ - 10,020 - 2,969
Retained earnings ................................. 317,908 14,032 136,091 100,931
Accumulated foreign currency translation adjustment - - - -
Unearned employee compensation..................... - - - -
Treasury stock..................................... - - - -
Equity for debt recapitalization................... - - (40,000) -
----------- --------- ---------- ---------- ------ ----------
Total common stock equity ........................... 437,148 24,124 181,219 169,205
----------- --------- ---------- ---------- ------ ----------
Long-term debt ...................................... 1,905 - - -
Installment promissory notes payable ................ 278,364 14,970 168,058 122,010
----------- --------- ---------- ---------- ------ ----------
Total Capitalization .................................. 717,417 39,094 349,277 291,215
----------- --------- ---------- ---------- ------ ----------
Current Liabilities
Short-term debt ..................................... - - - -
Current maturities of L.T. debt...................... 101 21 - -
Accounts and drafts payable ......................... 61,208 2,490 16,963 13,455
Intercompany notes and loans - current maturities ... 41,595 2,849 20,393 14,667
Intercompany short-term loans ....................... - - 49,197 -
Intercompany accounts payable ....................... 54,113 3,423 26,145 14,414
Accrued taxes ....................................... 108,078 149 4,880 6,238
Accrued interest .................................... 341 7 11 200
Estimated rate refunds .............................. 3,463 149 3,880 8,111
Estimated supplier obligations ...................... - - - -
Overrecovered gas costs ............................. 3,443 - - -
Transportation and exchange gas payable ............. 120,128 19,105 63,343 19,784
Deferred income taxes ............................... 28,649 656 3,710 -
Regulatory liabilities............................... - - - -
Other ............................................... 88,500 4,605 42,785 12,316
----------- --------- ---------- ---------- ------ ----------
Total Current Liabilities ............................. 509,619 33,454 231,307 89,185
----------- --------- ---------- ---------- ------ ----------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent................... 86,993 4,043 90,536 25,195
Investment tax credits .............................. 17,885 905 8,602 2,516
Postretirement benefits other than pensions ......... 53,581 935 6,986 3,811
Regulatory liabilities .............................. 9,631 1,429 6,101 1,362
Deferred revenue..................................... - - - -
Other ............................................... 18,265 672 7,450 8,582
----------- --------- ---------- ---------- ------ ----------
Total Other Liabilities and Deferred Credits .......... 186,355 7,984 119,675 41,466
----------- --------- ---------- ---------- ------ ----------
TOTAL CAPITALIZATION AND LIABILITIES .................. 1,413,391 80,532 700,259 421,866
=========== ========= ========== ========== ====== ==========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 98
F-1 (9 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Balance Sheet as of December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1 Page 9
CS CIC CES(a) CPC(a) CEC(a) Total
---------- ----- -------- -------- -------- ----------
<S> <C> <C> <C> <C> <C> <C>
CAPITALIZATION AND LIABILITIES
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares.......... - * * * * *
Subsidiaries - common stock ....................... 300
Additional paid in capital ........................ -
Retained earnings ................................. -
Accumulated foreign currency translation adjustment -
Unearned employee compensation..................... -
Treasury stock..................................... -
Equity for debt recapitalization................... -
---------- ----- -------- -------- -------- ----------
Total common stock equity ........................... 300
---------- ----- -------- -------- -------- ----------
Long-term debt ...................................... -
Installment promissory notes payable ................ 26,176
---------- ----- -------- -------- -------- ----------
Total Capitalization .................................. 26,476
---------- ----- -------- -------- -------- ----------
Current Liabilities
Short-term debt ..................................... -
Current maturities of L.T. debt...................... -
Accounts and drafts payable ......................... 9,880
Intercompany notes and loans - current maturities ... 2,567
Intercompany short-term loans ....................... 36,846
Intercompany accounts payable ....................... 2,853
Accrued taxes ....................................... (963)
Accrued interest .................................... 7
Estimated rate refunds .............................. -
Estimated supplier obligations ...................... -
Overrecovered gas costs ............................. -
Transportation and exchange gas payable ............. -
Deferred income taxes ............................... -
Regulatory liabilities............................... -
Other ............................................... 16,140
---------- ----- -------- -------- -------- ----------
Total Current Liabilities ............................. 67,330
---------- ----- -------- -------- -------- ----------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent................... 4,467
Investment tax credits .............................. -
Postretirement benefits other than pensions ......... 2,166
Regulatory liabilities .............................. -
Deferred revenue..................................... -
Other ............................................... 1,862
---------- ----- -------- -------- -------- ----------
Total Other Liabilities and Deferred Credits .......... 8,495
---------- ----- -------- -------- -------- ----------
TOTAL CAPITALIZATION AND LIABILITIES .................. 102,301
========== ===== ======== ======== ======== ==========
</TABLE>
(a) CES includes five subsidiaries, CPC includes three subsidiaries and CEC
includes sixteen subsidiaries as noted in Item 1. Consolidating financial
statements of CES, CPC and CEC are presented herewith in Item 10, Exhibits F-1D
through F-6D, F-1I through F-6I and F-1A through F-6A, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 99
F-1 (10 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Balance Sheet as of December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1 Page 10
CCC (a) CAT CNS (a) CPL (a) CFC (a) Total
--------- ------- --------- --------- --------- -----------
<S> <C> <C> <C> <C> <C> <C>
CAPITALIZATION AND LIABILITIES
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares............ * * * * * *
Subsidiaries - common stock .........................
Additional paid in capital ..........................
Retained earnings ...................................
Accumulated foreign currency translation adjustment..
Unearned employee compensation.......................
Treasury stock.......................................
Equity for debt recapitalization.....................
--------- ------- --------- --------- --------- -----------
Total common stock equity .............................
--------- ------- --------- --------- --------- -----------
Long-term debt ........................................
Installment promissory notes payable ..................
--------- ------- --------- --------- --------- -----------
Total Capitalization ....................................
--------- ------- --------- --------- --------- -----------
Current Liabilities
Short-term debt .......................................
Current maturities of L.T. debt........................
Accounts and drafts payable ...........................
Intercompany notes and loans - current maturities .....
Intercompany short-term loans .........................
Intercompany accounts payable .........................
Accrued taxes .........................................
Accrued interest ......................................
Estimated rate refunds ................................
Estimated supplier obligations ........................
Overrecovered gas costs ...............................
Transportation and exchange gas payable ...............
Deferred income taxes .................................
Regulatory liabilities.................................
Other .................................................
--------- ------- --------- --------- --------- -----------
Total Current Liabilities ...............................
--------- ------- --------- --------- --------- -----------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent.....................
Investment tax credits ................................
Postretirement benefits other than pensions ...........
Regulatory liabilities ................................
Deferred revenue.......................................
Other .................................................
--------- ------- --------- --------- --------- -----------
Total Other Liabilities and Deferred Credits ............
--------- ------- --------- --------- --------- -----------
TOTAL CAPITALIZATION AND LIABILITIES ....................
========= ======= ========= ========= ========= ===========
</TABLE>
(a) Both CCC and CNS include two subsidiaries, CPL and CFC include one
subsidiary as noted in Item 1. Consolidating financial statements of CCC, CNS,
CPL and CFC are presented herewith in Item 10, Exhibits F-1B through F-6B, F-1E
through F-6E, F-1G through F-6G and F-1H through F-6H, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 100
F-1A (1 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1A F-1A F-1A Consolidating CEC
Page 2 Page 3 Page 4 Combined Entries Consolidated
-------- -------- -------- ---------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... * * * * * *
Accumulated depreciation...........................
-------- -------- -------- ---------- ------------- ------------
Net Gas Utility and Other Plant ...................
-------- -------- -------- ---------- ------------- ------------
Gas and oil producing properties, full cost
method...........................................
United States cost center........................
Canadian cost center.............................
Accumulated depletion .............................
-------- -------- -------- ---------- ------------- ------------
Net Gas and Oil Producing Properties ..............
-------- -------- -------- ---------- ------------- ------------
Net Property, Plant, and Equipment ..................
-------- -------- -------- ---------- ------------- ------------
Investments and Other Assets
Accounts receivable - noncurrent...................
Unconsolidated affiliates .........................
Net assets of discontinued operations .............
Assets held for sale...............................
Other .............................................
-------- -------- -------- ---------- ------------- ------------
Total Investments and Other Assets ..................
-------- -------- -------- ---------- ------------- ------------
Investments in Subsidiaries
Capital stock .....................................
Equity in undistributed earnings of
subsidiaries .....................................
Notes receivable ..................................
Other investments .................................
-------- -------- -------- ---------- ------------- ------------
Total Investments in Subsidiaries ...................
-------- -------- -------- ---------- ------------- ------------
Current Assets
Cash and temporary cash investments ...............
Accounts receivable, net
Customers .......................................
Intercompany ....................................
Other ...........................................
Income tax refunds ................................
Gas inventory .....................................
Other inventories, at average cost ................
Prepayments .......................................
Regulatory assets .................................
Underrecovered gas costs...........................
Deferred property taxes............................
Exchange gas receivable............................
Other .............................................
-------- -------- -------- ---------- ------------- ------------
Total Current Assets ................................
-------- -------- -------- ---------- ------------- ------------
Deferred Charges ....................................
Long-term Regulatory Assets..........................
-------- -------- -------- ---------- ------------- ------------
TOTAL ASSETS ........................................
======== ======== ======== ========== ============= ============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 101
F-1A (2 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1A Page 2
CBG CBL CCL CEC CEH Total
------- ------- ------- ------- ------- -------------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... * * * * * *
Accumulated depreciation...........................
------- ------- ------- ------- ------- -------------
Net Gas Utility and Other Plant ...................
------- ------- ------- ------- ------- -------------
Gas and oil producing properties, full cost
method...........................................
United States cost center........................
Canadian cost center.............................
Accumulated depletion .............................
------- ------- ------- ------- ------- -------------
Net Gas and Oil Producing Properties ..............
------- ------- ------- ------- ------- -------------
Net Property, Plant, and Equipment ..................
------- ------- ------- ------- ------- -------------
Investments and Other Assets
Accounts receivable - noncurrent...................
Unconsolidated affiliates .........................
Net assets of discontinued operations .............
Assets held for sale...............................
Other .............................................
------- ------- ------- ------- ------- -------------
Total Investments and Other Assets ..................
------- ------- ------- ------- ------- -------------
Investments in Subsidiaries
Capital stock .....................................
Equity in undistributed earnings of
subsidiaries .....................................
Notes receivable ..................................
Other investments .................................
------- ------- ------- ------- ------- -------------
Total Investments in Subsidiaries ...................
------- ------- ------- ------- ------- -------------
Current Assets
Cash and temporary cash investments ...............
Accounts receivable, net
Customers .......................................
Intercompany ....................................
Other ...........................................
Income tax refund .................................
Gas inventory .....................................
Other inventories, at average cost ................
Prepayments .......................................
Regulatory assets .................................
Underrecovered gas costs...........................
Deferred property taxes............................
Exchange gas receivable............................
Other .............................................
------- ------- ------- ------- ------- -------------
Total Current Assets ................................
------- ------- ------- ------- ------- -------------
Deferred Charges ....................................
Long-term Regulatory Assets..........................
------- ------- ------- ------- ------- -------------
TOTAL ASSETS ........................................
======= ======= ======= ======= ======= =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 102
F-1A (3 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1A Page 3
CEK CEL CGG CGP CEPL CGR Total
------- ------- ------- ------- -------- ------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
ASSETS
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... * * * * * * *
Accumulated depreciation...........................
------- ------- ------- ------- -------- ------- -----------
Net Gas Utility and Other Plant ...................
------- ------- ------- ------- -------- ------- -----------
Gas and oil producing properties, full cost method.
United States cost center........................
Canadian cost center.............................
Accumulated depletion .............................
------- ------- ------- ------- -------- ------- -----------
Net Gas and Oil Producing Properties ..............
------- ------- ------- ------- -------- ------- -----------
Net Property, Plant, and Equipment ..................
------- ------- ------- ------- -------- ------- -----------
Investments and Other Assets
Accounts receivable - noncurrent...................
Unconsolidated affiliates .........................
Net assets of discontinued operations .............
Assets held for sale...............................
Other .............................................
------- ------- ------- ------- -------- ------- -----------
Total Investments and Other Assets ..................
------- ------- ------- ------- -------- ------- -----------
Investments in Subsidiaries
Capital stock .....................................
Equity in undistributed earnings of
subsidiaries .....................................
Notes receivable ..................................
Other investments .................................
------- ------- ------- ------- -------- ------- -----------
Total Investments in Subsidiaries ...................
------- ------- ------- ------- -------- ------- -----------
Current Assets
Cash and temporary cash investments ...............
Accounts receivable, net
Customers .......................................
Intercompany ....................................
Other ...........................................
Income tax refunds ................................
Gas inventory .....................................
Other inventories, at average cost ................
Prepayments .......................................
Regulatory assets .................................
Underrecovered gas costs...........................
Deferred property taxes............................
Exchange gas receivable............................
Other .............................................
------- ------- ------- ------- -------- ------- -----------
Total Current Assets ................................
------- ------- ------- ------- -------- ------- -----------
Deferred Charges ....................................
Long-term Regulatory Assets..........................
------- ------- ------- ------- -------- ------- -----------
TOTAL ASSETS ........................................
======= ======= ======= ======= ======== ======= ===========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 103
F-1A (4 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1A Page 4
CHC CLP CRL CVG CVL CLM Total
------- ------- ------- ------- ------- ------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
ASSETS
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... * * * * * * *
Accumulated depreciation...........................
------- ------- ------- ------- ------- ------- -----------
Net Gas Utility and Other Plant ...................
------- ------- ------- ------- ------- ------- -----------
Gas and oil producing properties, full cost method.
United States cost center........................
Canadian cost center.............................
Accumulated depletion .............................
------- ------- ------- ------- ------- ------- -----------
Net Gas and Oil Producing Properties ..............
------- ------- ------- ------- ------- ------- -----------
Net Property, Plant, and Equipment ..................
------- ------- ------- ------- ------- ------- -----------
Investments and Other Assets
Accounts receivable - noncurrent...................
Unconsolidated affiliates .........................
Net assets of discontinued operations .............
Assets held for sale...............................
Other .............................................
------- ------- ------- ------- ------- ------- -----------
Total Investments and Other Assets ..................
------- ------- ------- ------- ------- ------- -----------
Investments in Subsidiaries
Capital stock .....................................
Equity in undistributed earnings of
subsidiaries .....................................
Notes receivable ..................................
Other investments .................................
------- ------- ------- ------- ------- ------- -----------
Total Investments in Subsidiaries ...................
------- ------- ------- ------- ------- ------- -----------
Current Assets
Cash and temporary cash investments ...............
Accounts receivable, net
Customers .......................................
Intercompany ....................................
Other ...........................................
Income tax refunds ................................
Gas inventory .....................................
Other inventories, at average cost ................
Prepayments .......................................
Regulatory assets .................................
Underrecovered gas costs...........................
Deferred property taxes............................
Exchange gas receivable............................
Other .............................................
------- ------- ------- ------- ------- ------- -----------
Total Current Assets ................................
------- ------- ------- ------- ------- ------- -----------
Deferred Charges ....................................
Long-term Regulatory Assets..........................
------- ------- ------- ------- ------- ------- -----------
TOTAL ASSETS ........................................
======= ======= ======= ======= ======= ======= ===========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 104
F-1A (5 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1A F-1A F-1A Consolidating CEC
CAPITALIZATION AND LIABILITIES Page 6 Page 7 Page 8 Combined Entries Consolidated
------ ------ ------ -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares............ * * * * * *
Subsidiaries - common stock .........................
Additional paid in capital ..........................
Retained earnings ...................................
Accumulated foreign currency translation adjustment..
Unearned employee compensation.......................
Treasury stock.......................................
Equity for debt recapitalization.....................
------ ------ ------ -------- ------------- ------------
Total common stock equity .............................
------ ------ ------ -------- ------------- ------------
Long-term debt ........................................
Installment promissory notes payable ..................
------ ------ ------ -------- ------------- ------------
Total Capitalization ....................................
------ ------ ------ -------- ------------- ------------
Current Liabilities
Short-term debt........................................
Current maturities of L.T. debt........................
Accounts and drafts payable ...........................
Intercompany notes and loans - current maturities .....
Intercompany short-term loans .........................
Intercompany accounts payable .........................
Accrued taxes .........................................
Accrued interest ......................................
Estimated rate refunds ................................
Estimated supplier obligations ........................
Overrecovered gas costs................................
Transportation and exchange gas payable ...............
Deferred income taxes .................................
Regulatory liabilities.................................
Other .................................................
------ ------ ------ -------- ------------- ------------
Total Current Liabilities ...............................
------ ------ ------ -------- ------------- ------------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent.....................
Investment tax credits ................................
Postretirement benefits other than pensions ...........
Regulatory liabilities.................................
Deferred revenue.......................................
Other .................................................
------ ------ ------ -------- ------------- ------------
Total Other Liabilities and Deferred Credits ............
------ ------ ------ -------- ------------- ------------
TOTAL CAPITALIZATION AND LIABILITIES ....................
====== ====== ====== ======== ============= ============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 105
F-1A (6 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1A Page 6
CAPITALIZATION AND LIABILITIES CBG CBL CCL CEC CEH Total
------- ------- ------- ------- ------- -------------
<S> <C> <C> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares........... * * * * * *
Subsidiaries - common stock ........................
Additional paid in capital .........................
Retained earnings ..................................
Accumulated foreign currency translation adjustment.
Unearned employee compensation......................
Treasury stock......................................
Equity for debt recapitalization....................
------- ------- ------- ------- ------- -------------
Total common stock equity ............................
------- ------- ------- ------- ------- -------------
Long-term debt .......................................
Installment promissory notes payable .................
------- ------- ------- ------- ------- -------------
Total Capitalization ...................................
------- ------- ------- ------- ------- -------------
Current Liabilities
Short-term debt.......................................
Current maturities of L.T. debt.......................
Accounts and drafts payable ..........................
Intercompany notes and loans - current maturities ....
Intercompany short-term loans ........................
Intercompany accounts payable ........................
Accrued taxes ........................................
Accrued interest .....................................
Estimated rate refunds ...............................
Estimated supplier obligations .......................
Overrecovered gas costs...............................
Transportation and exchange gas payable ..............
Deferred income taxes ................................
Regulatory liabilities................................
Other ................................................
------- ------- ------- ------- ------- -------------
Total Current Liabilities ..............................
------- ------- ------- ------- ------- -------------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent....................
Investment tax credits ...............................
Postretirement benefits other than pensions ..........
Regulatory liabilities................................
Deferred revenue......................................
Other ................................................
------- ------- ------- ------- ------- -------------
Total Other Liabilities and Deferred Credits ...........
------- ------- ------- ------- ------- -------------
TOTAL CAPITALIZATION AND LIABILITIES ...................
======= ======= ======= ======= ======= =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 106
F-1A (7 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1A Page 7
CAPITALIZATION AND LIABILITIES CEK CEL CGG CGP CEPL CGR Total
------- ------- ------- ------- ------ ------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares............ * * * * * * *
Subsidiaries - common stock .........................
Additional paid in capital ..........................
Retained earnings ...................................
Accumulated foreign currency translation adjustment..
Unearned employee compensation.......................
Treasury stock.......................................
Equity for debt recapitalization.....................
------- ------- ------- ------- ------ ------- -----------
Total common stock equity .............................
------- ------- ------- ------- ------ ------- -----------
Long-term debt ........................................
Installment promissory notes payable ..................
------- ------- ------- ------- ------ ------- -----------
Total Capitalization ....................................
------- ------- ------- ------- ------ ------- -----------
Current Liabilities
Short-term debt........................................
Current maturities of L.T. debt........................
Accounts and drafts payable ...........................
Intercompany notes and loans - current maturities .....
Intercompany short-term loans .........................
Intercompany accounts payable .........................
Accrued taxes .........................................
Accrued interest ......................................
Estimated rate refunds ................................
Estimated supplier obligations ........................
Overrecovered gas costs................................
Transportation and exchange gas payable ...............
Deferred income taxes .................................
Regulatory liabilities.................................
Other .................................................
------- ------- ------- ------- ------ ------- -----------
Total Current Liabilities ...............................
------- ------- ------- ------- ------ ------- -----------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent.....................
Investment tax credits ................................
Postretirement benefits other than pensions ...........
Regulatory liabilities.................................
Deferred revenue.......................................
Other .................................................
------- ------- ------- ------- ------ ------- -----------
Total Other Liabilities and Deferred Credits ............
------- ------- ------- ------- ------ ------- -----------
TOTAL CAPITALIZATION AND LIABILITIES ....................
======= ======= ======= ======= ====== ======= ===========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 107
F-1A (8 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-1A Page 8
CAPITALIZATION AND LIABILITIES CHC CLP CRL CVG CVL CLM Total
------- ------- ------- ------- ------- ------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares............ * * * * * * *
Subsidiaries - common stock .........................
Additional paid in capital ..........................
Retained earnings ...................................
Accumulated foreign currency translation adjustment..
Unearned employee compensation.......................
Treasury stock.......................................
Equity for debt recapitalization.....................
------- ------- ------- ------- ------- ------- -----------
Total common stock equity .............................
------- ------- ------- ------- ------- ------- -----------
Long-term debt ........................................
Installment promissory notes payable ..................
------- ------- ------- ------- ------- ------- -----------
Total Capitalization ....................................
------- ------- ------- ------- ------- ------- -----------
Current Liabilities
Short-term debt........................................
Current maturities of L.T. debt........................
Accounts and drafts payable ...........................
Intercompany notes and loans - current maturities .....
Intercompany short-term loans .........................
Intercompany accounts payable .........................
Accrued taxes .........................................
Accrued interest ......................................
Estimated rate refunds ................................
Estimated supplier obligations ........................
Overrecovered gas costs................................
Transportation and exchange gas payable ...............
Deferred income taxes .................................
Regulatory liabilities.................................
Other .................................................
------- ------- ------- ------- ------- ------- -----------
Total Current Liabilities ...............................
------- ------- ------- ------- ------- ------- -----------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent.....................
Investment tax credits ................................
Postretirement benefits other than pensions ...........
Regulatory liabilities.................................
Deferred revenue.......................................
Other .................................................
------- ------- ------- ------- ------- ------- -----------
Total Other Liabilities and Deferred Credits ............
------- ------- ------- ------- ------- ------- -----------
TOTAL CAPITALIZATION AND LIABILITIES ....................
======= ======= ======= ======= ======= ======= ===========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 108
F-1B (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Group Capital Corporation and Subsidiaries
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CCC
ASSETS TGT CTC CCC Combined Entries Consolidated
--- --- --- -------- ------- ------------
<S> <C> <C> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... * * * * * *
Accumulated depreciation...........................
-------- --------- -------- --------- -------- -------
Net Gas Utility and Other Plant ...................
-------- --------- -------- --------- -------- -------
Gas and oil producing properties, full cost method.
United States cost center........................
Canadian cost center.............................
Accumulated depletion .............................
-------- --------- -------- --------- -------- -------
Net Gas and Oil Producing Properties ..............
-------- --------- -------- --------- -------- -------
Net Property, Plant, and Equipment ..................
-------- --------- -------- --------- -------- -------
Investments and Other Assets
Accounts receivable - noncurrent...................
Unconsolidated affiliates .........................
Net assets of discontinued operations .............
Assets held for sale...............................
Other .............................................
-------- --------- -------- --------- -------- -------
Total Investments and Other Assets ..................
-------- --------- -------- --------- -------- -------
Investments in Subsidiaries
Capital stock .....................................
Equity in undistributed earnings of
subsidiaries .....................................
Notes receivable ..................................
Other investments .................................
-------- --------- -------- --------- -------- -------
Total Investments in Subsidiaries ...................
-------- --------- -------- --------- -------- -------
Current Assets
Cash and temporary cash investments ...............
Accounts receivable, net
Customers .......................................
Intercompany ....................................
Other ...........................................
Income tax refunds ................................
Gas inventory .....................................
Other inventories, at average cost ................
Prepayments .......................................
Regulatory assets..................................
Underrecovered gas costs...........................
Deferred property taxes............................
Exchange gas receivable............................
Other .............................................
-------- --------- -------- --------- -------- -------
Total Current Assets ................................
-------- --------- -------- --------- -------- -------
Deferred Charges ....................................
Long-term Regulatory Assets .........................
-------- --------- -------- --------- -------- -------
TOTAL ASSETS ........................................
======== ========= ======== ========= ======== =======
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 109
F-1B (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Group Capital Corporation and Subsidiaries
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
CAPITALIZATION AND LIABILITIES Consolidating CCC
TGT CTC CCC Combined Entries Consolidated
--- --- --- -------- ------- ------------
<S> <C> <C> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares............ * * * * * *
Subsidiaries - common stock .........................
Additional paid in capital ..........................
Retained earnings ...................................
Accumulated foreign currency translation adjustment..
Unearned employee compensation ......................
Treasury stock.......................................
Equity for debt recapitalization.....................
-------- --------- -------- --------- -------- -------
Total common stock equity .............................
-------- --------- -------- --------- -------- -------
Long-term debt ........................................
Installment promissory notes payable ..................
-------- --------- -------- --------- -------- -------
Total Capitalization ....................................
-------- --------- -------- --------- -------- -------
Current Liabilities
Short-term debt........................................
Current maturities of L.T. debt........................
Accounts and drafts payable ...........................
Intercompany notes and loans - current maturities .....
Intercompany short-term loans .........................
Intercompany accounts payable .........................
Accrued taxes .........................................
Accrued interest.......................................
Estimated rate refunds ................................
Estimated supplier obligations ........................
Overrecovered gas costs................................
Transportation and exchange gas payable ...............
Deferred income taxes .................................
Regulatory liabilities.................................
Other .................................................
-------- --------- -------- --------- -------- -------
Total Current Liabilities ...............................
-------- --------- -------- --------- -------- -------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent.....................
Investment tax credits ................................
Postretirement benefits other than pensions ...........
Regulatory liabilities ................................
Deferred revenue.......................................
Other .................................................
-------- --------- -------- --------- -------- -------
Total Other Liabilities and Deferred Credits ............
-------- --------- -------- --------- -------- -------
TOTAL CAPITALIZATION AND LIABILITIES ....................
======== ========= ======== ========= ======== =======
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 110
F-1C (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia LNG Corporation and Subsidiary
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CLG
ASSETS CLNG CLG Combined Entries Consolidated
---- --- -------- -------- ------------
<S> <C> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... * * * * *
Accumulated depreciation...........................
-------- --------- -------- --------- --------
Net Gas Utility and Other Plant ...................
-------- --------- -------- --------- --------
Gas and oil producing properties, full cost method.
United States cost center........................
Canadian cost center.............................
Accumulated depletion .............................
-------- --------- -------- --------- --------
Net Gas and Oil Producing Properties ..............
-------- --------- -------- --------- --------
Net Property, Plant, and Equipment ..................
-------- --------- -------- --------- --------
Investments and Other Assets
Accounts receivable - noncurrent...................
Unconsolidated affiliates .........................
Net assets of discontinued operations .............
Assets held for sale...............................
Other .............................................
-------- --------- -------- --------- --------
Total Investments and Other Assets ..................
-------- --------- -------- --------- --------
Investments in Subsidiaries
Capital stock .....................................
Equity in undistributed earnings of
subsidiaries .....................................
Notes receivable ..................................
Other investments .................................
-------- --------- -------- --------- --------
Total Investments in Subsidiaries ...................
-------- --------- -------- --------- --------
Current Assets
Cash and temporary cash investments ...............
Accounts receivable, net
Customers .......................................
Intercompany ....................................
Other ...........................................
Income tax refunds ................................
Gas inventory .....................................
Other inventories, at average cost ................
Prepayments .......................................
Regulatory assets .................................
Underrecovered gas costs...........................
Deferred property taxes............................
Exchange gas receivable............................
Other .............................................
-------- --------- -------- --------- --------
Total Current Assets ................................
-------- --------- -------- --------- --------
Deferred Charges ....................................
Long-term Regulatory Assets .........................
-------- --------- -------- --------- --------
TOTAL ASSETS ........................................
======== ========= ======== ========= ========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 111
F-1C (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia LNG Corporation and Subsidiary
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CLG
CAPITALIZATION AND LIABILITIES CLNG CLG Combined Entries Consolidated
---- --- -------- ------- ------------
<S> <C> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares............. * * * * *
Subsidiaries - common stock ..........................
Additional paid in capital ...........................
Retained earnings ....................................
Accumulated foreign currency translation adjustment...
Unearned employee compensation .......................
Treasury stock.......................................
Equity for debt recapitalization......................
-------- --------- -------- --------- --------
Total common stock equity ..............................
-------- --------- -------- --------- --------
Long-term debt .........................................
Installment promissory notes payable ...................
-------- --------- -------- --------- --------
Total Capitalization .....................................
-------- --------- -------- --------- --------
Current Liabilities
Short-term debt.........................................
Current maturities of L.T. debt.........................
Accounts and drafts payable ............................
Intercompany notes and loans - current maturities ......
Intercompany short-term loans ..........................
Intercompany accounts payable ..........................
Accrued taxes ..........................................
Accrued interest .......................................
Estimated rate refunds .................................
Estimated supplier obligations .........................
Overrecovered gas costs.................................
Transportation and exchange gas payable ................
Deferred income taxes ..................................
Regulatory liabilities .................................
Other...................................................
-------- --------- -------- --------- --------
Total Current Liabilities ................................
-------- --------- -------- --------- --------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent......................
Investment tax credits .................................
Postretirement benefits other than pensions ............
Regulatory liabilities .................................
Deferred revenue........................................
Other...................................................
-------- --------- -------- --------- --------
Total Other Liabilities and Deferred Credits .............
-------- --------- -------- --------- --------
TOTAL CAPITALIZATION AND LIABILITIES .....................
======== ========= ======== ========= ========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 112
F-1D (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Services Corporation and Subsidiaries
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
ASSETS CEM CPM CRC CSP ECC
<S> <C> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... * * * * *
Accumulated depreciation...........................
-------- --------- -------- --------- --------
Net Gas Utility and Other Plant ...................
-------- --------- -------- --------- --------
Gas and oil producing properties, full cost method.
United States cost center........................
Canadian cost center.............................
Accumulated depletion .............................
-------- --------- -------- --------- --------
Net Gas and Oil Producing Properties ..............
-------- --------- -------- --------- --------
Net Property, Plant, and Equipment ..................
-------- --------- -------- --------- --------
Investments and Other Assets
Accounts receivable - noncurrent...................
Unconsolidated affiliates .........................
Net assets of discontinued operations .............
Assets held for sale...............................
Other .............................................
-------- --------- -------- --------- --------
Total Investments and Other Assets ..................
-------- --------- -------- --------- --------
Investments in Subsidiaries
Capital stock .....................................
Equity in undistributed earnings of
subsidiaries .....................................
Notes receivable ..................................
Other investments .................................
-------- --------- -------- --------- --------
Total Investments in Subsidiaries ...................
-------- --------- -------- --------- --------
Current Assets
Cash and temporary cash investments ...............
Accounts receivable, net
Customers .......................................
Intercompany ....................................
Other ...........................................
Income tax refunds.................................
Gas inventory .....................................
Other inventories, at average cost ................
Prepayments .......................................
Regulatory assets .................................
Underrecovered gas costs...........................
Deferred property taxes............................
Exchange gas receivable............................
Other .............................................
-------- --------- -------- --------- --------
Total Current Assets ................................
-------- --------- -------- --------- --------
Deferred Charges ....................................
Long-term Regulatory Assets..........................
-------- --------- -------- --------- --------
TOTAL ASSETS ........................................
======== ========= ======== ========= ========
<CAPTION>
Consolidating CES
ASSETS CES Combined Entries Consolidated
--- -------- ------- ------------
<S> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... * * * *
Accumulated depreciation...........................
-------- --------- -------- ---------
Net Gas Utility and Other Plant ...................
-------- --------- -------- ---------
Gas and oil producing properties, full cost method.
United States cost center........................
Canadian cost center.............................
Accumulated depletion .............................
-------- --------- -------- ---------
Net Gas and Oil Producing Properties ..............
-------- --------- -------- ---------
Net Property, Plant, and Equipment ..................
-------- --------- -------- ---------
Investments and Other Assets
Accounts receivable - noncurrent...................
Unconsolidated affiliates .........................
Net assets of discontinued operations .............
Assets held for sale...............................
Other .............................................
-------- --------- -------- ---------
Total Investments and Other Assets ..................
-------- --------- -------- ---------
Investments in Subsidiaries
Capital stock .....................................
Equity in undistributed earnings of
subsidiaries .....................................
Notes receivable ..................................
Other investments .................................
-------- --------- -------- ---------
Total Investments in Subsidiaries ...................
-------- --------- -------- ---------
Current Assets
Cash and temporary cash investments ...............
Accounts receivable, net
Customers .......................................
Intercompany ....................................
Other ...........................................
Income tax refunds.................................
Gas inventory .....................................
Other inventories, at average cost ................
Prepayments .......................................
Regulatory assets .................................
Underrecovered gas costs...........................
Deferred property taxes............................
Exchange gas receivable............................
Other .............................................
-------- --------- -------- ---------
Total Current Assets ................................
-------- --------- -------- ---------
Deferred Charges ....................................
Long-term Regulatory Assets..........................
-------- --------- -------- ---------
TOTAL ASSETS ........................................
======== ========= ======== =========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 113
F-1D (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Services Corporation and Subsidiaries
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
CAPITALIZATION AND LIABILITIES CEM CPM CRC CSP ECC
-------- -------- --------- -------- --------
<S> <C> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares................... * * * * *
Subsidiaries - common stock .................................
Additional paid in capital ..................................
Retained earnings ...........................................
Accumulated foreign currency translation adjustment..........
Unearned employee compensation ..............................
Treasury stock...............................................
Equity for debt recapitalization.............................
-------- -------- --------- -------- --------
Total common stock equity .....................................
-------- -------- --------- -------- --------
Long-term debt ................................................
Installment promissory notes payable ..........................
-------- -------- --------- -------- --------
Total Capitalization ............................................
-------- -------- --------- -------- --------
Current Liabilities
Short-term debt................................................
Current maturities of L.T. debt................................
Accounts and drafts payable ...................................
Intercompany notes and loans - current maturities .............
Intercompany short-term loans .................................
Intercompany accounts payable .................................
Accrued taxes .................................................
Accrued interest ..............................................
Estimated rate refunds ........................................
Estimated supplier obligations ................................
Overrecovered gas costs .......................................
Transportation and exchange gas payable .......................
Deferred income taxes .........................................
Regulatory liabilities ........................................
Other .........................................................
-------- -------- --------- -------- --------
Total Current Liabilities .......................................
-------- -------- --------- -------- --------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent.............................
Investment tax credits ........................................
Postretirement benefits other than pensions ...................
Regulatory liabilities.........................................
Deferred revenue...............................................
Other .........................................................
-------- -------- --------- -------- --------
Total Other Liabilities and Deferred Credits ....................
-------- -------- --------- -------- --------
TOTAL CAPITALIZATION AND LIABILITIES ............................
======== ======== ========= ======== ========
</TABLE>
<TABLE>
<CAPTION>
Consolidating CES
CAPITALIZATION AND LIABILITIES CES Combined Entries Consolidated
-------- -------- ------------- ------------
<S> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares................... * * * *
Subsidiaries - common stock .................................
Additional paid in capital ..................................
Retained earnings ...........................................
Accumulated foreign currency translation adjustment..........
Unearned employee compensation ..............................
Treasury stock...............................................
Equity for debt recapitalization.............................
-------- -------- ------------- ------------
Total common stock equity .....................................
-------- -------- ------------- ------------
Long-term debt ................................................
Installment promissory notes payable ..........................
-------- -------- ------------- ------------
Total Capitalization ............................................
-------- -------- ------------- ------------
Current Liabilities
Short-term debt................................................
Current maturities of L.T. debt................................
Accounts and drafts payable ...................................
Intercompany notes and loans - current maturities .............
Intercompany short-term loans .................................
Intercompany accounts payable .................................
Accrued taxes .................................................
Accrued interest ..............................................
Estimated rate refunds ........................................
Estimated supplier obligations ................................
Overrecovered gas costs .......................................
Transportation and exchange gas payable .......................
Deferred income taxes .........................................
Regulatory liabilities ........................................
Other .........................................................
-------- -------- ------------- ------------
Total Current Liabilities .......................................
-------- -------- ------------- ------------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent.............................
Investment tax credits ........................................
Postretirement benefits other than pensions ...................
Regulatory liabilities.........................................
Deferred revenue...............................................
Other .........................................................
-------- -------- ------------- ------------
Total Other Liabilities and Deferred Credits ....................
-------- -------- ------------- ------------
TOTAL CAPITALIZATION AND LIABILITIES ............................
======== ======== ============= ============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 114
F-1E (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Network Services Corporation and Subsidiaries
Consolidated Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CNS
CMC EN CNS Combined Entries Consolidated
--- -- --- -------- ------- ------------
ASSETS
<S> <C> <C> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost ...... * * * * * *
Accumulated depreciation ........................... ---------- ---------- ---------- ---------- ---------- ----------
Net Gas Utility and Other Plant .................... ---------- ---------- ---------- ---------- ---------- ----------
Gas and oil producing properties, full cost method..
United States cost center .......................
Canadian cost center ............................
Accumulated depletion ............................. ---------- ---------- ---------- ---------- ---------- ----------
Net Gas and Oil Producing Properties .............. ---------- ---------- ---------- ---------- ---------- ----------
Net Property, Plant, and Equipment .................. ---------- ---------- ---------- ---------- ---------- ----------
Investments and Other Assets
Accounts receivable - noncurrent ..................
Unconsolidated affiliates
Net assets of discontinued operations .............
Assets held for sale
Other ............................................. ---------- ---------- ---------- ---------- ---------- ----------
Total Investments and Other Assets .................. ---------- ---------- ---------- ---------- ---------- ----------
Investments in Subsidiaries
Capital stock .....................................
Equity in undistributed earnings of ...............
subsidiaries .....................................
Notes receivable ..................................
Other investments ................................. ---------- ---------- ---------- ---------- ---------- ----------
Total Investments in Subsidiaries ................... ---------- ---------- ---------- ---------- ---------- ----------
Current Assets
Cash and temporary cash investments ...............
Accounts receivable, net ..........................
Customers .......................................
Intercompany ....................................
Other ...........................................
Income tax refunds ................................
Gas inventory .....................................
Other inventories, at average cost ................
Prepayments .......................................
Regulatory assets .................................
Underrecovered gas costs ..........................
Deferred property taxes ...........................
Exchange gas receivable ...........................
Other ............................................. ---------- ---------- ---------- ---------- ---------- ----------
Total Current Assets ................................ ---------- ---------- ---------- ---------- ---------- ----------
Deferred Charges ....................................
Long-term Regulatory Assets ......................... ---------- ---------- ---------- ---------- ---------- ----------
TOTAL ASSETS ....................................... ========== ========== ========== ========== ========== ==========
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 115
F-1E (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Network Services Corporation and Subsidiaries
Consolidated Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CMS
CMC EN CNS Combined Entries Consolidated
--------- ---------- ---------- ---------- ---------- ---------
CAPITALIZATION AND LIABILITIES
<S> <C> <C> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares ......... * * * * * *
Subsidiaries - common stock .......................
Additional paid in capital ........................
Retained earnings .................................
Accumulated foreign currency translation
adjustment ......................................
Unearned employee compensation ....................
Treasury stock ....................................
Equity for debt recapitalization .................. --------- ---------- ---------- ---------- ---------- ---------
Total common stock equity ........................... --------- ---------- ---------- ---------- ---------- ---------
Long-term debt ......................................
Installment promissory notes payable ................ --------- ---------- ---------- ---------- ---------- ---------
Total Capitalization .................................. --------- ---------- ---------- ---------- ---------- ---------
Current Liabilities
Short-term debt .....................................
Current maturities of L.T. debt .....................
Accounts and drafts payable .........................
Intercompany notes and loans - current maturities ...
Intercompany short-term loans .......................
Intercompany accounts payable .......................
Accrued taxes .......................................
Accrued interest ....................................
Estimated rate refunds ..............................
Estimated supplier obligations ......................
Overrecovered gas costs .............................
Transportation and exchange gas payable .............
Deferred income taxes ...............................
Regulatory liabilities ..............................
Other ............................................... --------- ---------- ---------- ---------- ---------- ----------
Total Current Liabilities ............................. --------- ---------- ---------- ---------- ---------- ----------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent ..................
Investment tax credits ..............................
Postretirement benefits other than pensions .........
Regulatory liabilities ..............................
Deferred revenue ....................................
Other ............................................... ------- ---------- ---------- ---------- ---------- -----------
Total Other Liabilities and Deferred Credits .......... ------- ---------- ---------- ---------- ---------- -----------
TOTAL CAPITALIZATION AND LIABILITIES .................. ======== ========== ========== ========== ========== ==========
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 116
F-1F (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Resources, Inc. and Subsidiaries
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
CONSOLIDATING CER
ASSETS CER HH CU AD CER Combined Entries Consolidated
------ --- -- -- -- --- -------- ------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost . * * * * * * * *
Accumulated depreciation....................... ------- ------- ------ ------ ------ ------ ------- ------
Net Gas Utility and Other Plant ............... ------- ------- ------ ------ ------ ------ ------- ------
Gas and oil producing
properties, full cost method.
United states cost center....................
Canadian cost center.........................
Accumulated depletion ......................... -------- ------- ------- ------- ------ ------- -------- -------
Net Gas and Oil Producing Properties .......... -------- ------- ------- ------- ------ ------- -------- -------
Net Property, Plant, and Equipment ..............
Investments and Other Assets
Accounts receivable - noncurrent...............
Unconsolidated affiliates .....................
Net assets of discontinued operations .........
Assets held for sale...........................
Other ......................................... -------- ------- ------- ------- ------ ------- -------- -------
Total Investments and Other Assets .............. -------- ------- ------- ------- ------ ------- -------- -------
Investments in Subsidiaries
Capital stock .................................
Equity in undistributed earnings of
subsidiaries .................................
Notes receivable ..............................
Other investments ............................. -------- ------- ------- ------- ------ ------- -------- -------
Total Investments in Subsidiaries ............... -------- ------- ------- ------- ------ ------- -------- -------
Current Assets
Cash and temporary cash investments ...........
Accounts receivable, net
Customers ...................................
Intercompany ................................
Other .......................................
Income tax refunds ............................
Gas inventory .................................
Other inventories, at average cost ............
Prepayments ...................................
Regulatory assets .............................
Underrecovered gas costs.......................
Deferred property taxes........................
Exchange gas receivable........................
Other ......................................... ------- ------- ------- ------ ----- ------ ------- -------
Total Current Assets ............................ ------- ------- ------- ------ ----- ------ ------- -------
Deferred Charges ................................
Long-term Regulatory Assets ..................... ------ ------- ------ ------ ----- ------ ------ -------
TOTAL ASSETS .................................... ====== ======= ======= ====== ===== ====== ====== =======
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 117
F-1F (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Resources, Inc. and Subsidiaries
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CER
CAPITALIZATION AND LIABILITIES CNR HH CU AD ER Combined Entries Consolidated
--- -- -- -- -- ------- ------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares ......... * * * * * * * *
Subsidiaries - common stock .......................
Additional paid in capital ........................
Retained earnings .................................
Accumulated foreign currency translation adjustment
Unearned employee compensation ....................
Treasury stock ....................................
Equity for debt recapitalization .................. ---- ---- ---- ---- ---- ---- ---- ----
Total common stock equity ........................... ---- ---- ---- ---- ---- ---- ---- ----
Long-term debt
Installment promissory notes payable ................ ---- ---- ---- ---- ---- ---- ---- ----
Total Capitalization .................................
Current Liabilities
Short-term debt ....................................
Current maturities of L.T. debt ....................
Accounts and drafts payable ........................
Intercompany notes and loans - current maturities
Intercompany short-term loans ......................
Intercompany accounts payable ......................
Accrued taxes ......................................
Accrued interest ...................................
Estimated rate refunds .............................
Estimated supplier obligations .....................
Overrecovered gas costs ............................
Transportation and exchange gas payable ............
Deferred income taxes ..............................
Regulatory liabilities
Other ............................................... ---- ---- ---- ---- ---- ---- ---- ----
Total Current Liabilities ............................. ---- ---- ---- ---- ---- ---- ---- ----
Other Liabilities and Deferred Credits ...............
Deferred income taxes - noncurrent .................
Investment tax credits .............................
Postretirement benefits other than pensions ........
Regulatory liabilities .............................
Deferred revenue ..................................
Other ............................................... ---- ---- ---- ---- ---- ---- ---- ----
Total Other Liabilities and Deferred Credits .......... ---- ---- ---- ---- ---- ---- ---- ----
TOTAL CAPITALIZATION AND LIABILITIES .................. ==== ==== ==== ==== ==== ==== ==== ====
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 118
F-1G (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Pipeline Company and Subsidiary
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CPL
ASSETS CDW CPL Combined Entries Consolidated
------------ ------------ ------------ ------------- ------------
<S> <C> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... * * * * *
Accumulated depreciation...........................
------------ ------------ ------------ ------------- ------------
Net Gas Utility and Other Plant ...................
------------ ------------ ------------ ------------- ------------
Gas and oil producing properties, full cost method.
United States cost center........................
Canadian cost center.............................
Accumulated depletion .............................
------------ ------------ ------------ ------------- ------------
Net Gas and Oil Producing Properties ..............
------------ ------------ ------------ ------------- ------------
Net Property, Plant, and Equipment ..................
------------ ------------ ------------ ------------- ------------
Investments and Other Assets
Accounts receivable - noncurrent ..................
Unconsolidated affiliates .........................
Net assets of discontinued operations .............
Assets held for sale ..............................
Other .............................................
------------ ------------ ------------ ------------- ------------
Total Investments and Other Assets ..................
------------ ------------ ------------ ------------- ------------
Investments in Subsidiaries
Capital stock .....................................
Equity in undistributed earnings of
subsidiaries .....................................
Notes receivable ..................................
Other investments .................................
------------ ------------ ------------ ------------- ------------
Total Investments in Subsidiaries ...................
------------ ------------ ------------ ------------- ------------
Current Assets
Cash and temporary cash investments ...............
Accounts receivable, net
Customers .......................................
Intercompany ....................................
Other ...........................................
Income tax refunds ................................
Gas inventory .....................................
Other inventories, at average cost ................
Prepayments .......................................
Regulatory assets .................................
Underrecovered gas costs...........................
Deferred property taxes............................
Exchange gas receivable............................
Other .............................................
------------ ------------ ------------ ------------- ------------
Total Current Assets ................................
------------ ------------ ------------ ------------- ------------
Deferred Charges ....................................
Long-term Regulatory Assets .........................
------------ ------------ ------------ ------------- ------------
TOTAL ASSETS ........................................
============ ============ ============ ============= ============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 119
F-1G (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Pipeline Company and Subsidiary
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CPL
CAPITALIZATION AND LIABILITIES CDW CPL Combined Entries Consolidated
<S> <C> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares............. * * * * *
Subsidiaries - common stock ..........................
Additional paid in capital ...........................
Retained earnings ....................................
Accumulated foreign currency translation adjustment...
Unearned employee compensation .......................
Treasury stock ......................................
Equity for debt recapitalization ..................... ---- ---- ---- ---- ----
Total common stock equity .............................. ---- ---- ---- ---- ----
Long-term debt .........................................
Installment promissory notes payable ................... ---- ---- ---- ---- ----
Total Capitalization ..................................... ---- ---- ---- ---- ----
Current Liabilities
Short-term debt.........................................
Current maturities of L.T. debt.........................
Accounts and drafts payable ............................
Intercompany notes and loans - current maturities ......
Intercompany short-term loans ..........................
Intercompany accounts payable ..........................
Accrued taxes ..........................................
Accrued interest .......................................
Estimated rate refunds .................................
Estimated supplier obligations .........................
Overrecovered gas costs.................................
Transportation and exchange gas payable ................
Deferred income taxes ..................................
Regulatory liabilities .................................
Other................................................... ---- ---- ---- ---- ----
Total Current Liabilities ................................ ---- ---- ---- ---- ----
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent .....................
Investment tax credits .................................
Postretirement benefits other than pensions ............
Regulatory liabilities .................................
Deferred revenue........................................
Other.................................................. ---- ---- ---- ---- ----
Total Other Liabilities and Deferred Credits ............. ---- ---- ---- ---- ----
TOTAL CAPITALIZATION AND LIABILITIES ..................... ---- ---- ---- ---- ----
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 120
F-1H (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Finance Corporation and Subsidiary
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CFC
ASSETS CAR CFC Combined Entries Consolidated
------- -------- ------------ -------------- ------------
<S> <C> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... * * * * *
Accumulated depreciation...........................
------- -------- ------------ -------------- ------------
Net Gas Utility and Other Plant ...................
------- -------- ------------ -------------- ------------
Gas and oil producing properties, full cost method.
United States cost center........................
Canadian cost center.............................
Accumulated depletion .............................
------- -------- ------------ -------------- ------------
Net Gas and Oil Producing Properties ..............
------- -------- ------------ -------------- ------------
Net Property, Plant, and Equipment ..................
------- -------- ------------ -------------- ------------
Investments and Other Assets
Accounts receivable - noncurrent...................
Unconsolidated affiliates .........................
Net assets of discontinued operations .............
Assets held for sale...............................
Other .............................................
------- -------- ------------ -------------- ------------
Total Investments and Other Assets ..................
------- -------- ------------ -------------- ------------
Investments in Subsidiaries
Capital stock .....................................
Equity in undistributed earnings of
subsidiaries .....................................
Notes receivable ..................................
Other investments .................................
------- -------- ------------ -------------- ------------
Total Investments in Subsidiaries ...................
------- -------- ------------ -------------- ------------
Current Assets
Cash and temporary cash investments ...............
Accounts receivable, net
Customers .......................................
Intercompany ....................................
Other ...........................................
Income tax refunds ................................
Gas inventory .....................................
Other inventories, at average cost ................
Prepayments .......................................
Regulatory assets .................................
Underrecovered gas costs...........................
Deferred property taxes............................
Exchange gas receivable............................
Other .............................................
------- -------- ------------ -------------- ------------
Total Current Assets ................................
------- -------- ------------ -------------- ------------
Deferred Charges ....................................
Long-term Regulatory Assets .........................
------- -------- ------------ -------------- ------------
TOTAL ASSETS ........................................
======= ======== ============ ============== ============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 121
F-1H (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Finance Corporation and Subsidiary
Consolidating Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CFC
CAPITALIZATION AND LIABILITIES CAR CFC Combined Entries Consolidated
------- --------- ------------ ----------- --------------
<S> <C> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares.............. * * * * *
Subsidiaries - common stock ..........................
Additional paid in capital ...........................
Retained earnings ....................................
Accumulated foreign currency translation adjustment...
Unearned employee compensation .......................
Treasury stock........................................
Equity for debt recapitalization......................
------- --------- ------------ ----------- --------------
Total common stock equity ..............................
------- --------- ------------ ----------- --------------
Long-term debt .........................................
Installment promissory notes payable ...................
------- --------- ------------ ----------- --------------
Total Capitalization .....................................
------- --------- ------------ ----------- --------------
Current Liabilities
Short-term debt.........................................
Current maturities of L.T. debt.........................
Accounts and drafts payable ............................
Intercompany notes and loans - current maturities ......
Intercompany short-term loans ..........................
Intercompany accounts payable ..........................
Accrued taxes ..........................................
Accrued interest .......................................
Estimated rate refunds .................................
Estimated supplier obligations .........................
Overrecovered gas costs.................................
Transportation and exchange gas payable ................
Deferred income taxes ..................................
Regulatory liabilities.................................
Other...................................................
------- --------- ------------ ----------- --------------
Total Current Liabilities ................................
------- --------- ------------ ----------- --------------
Other Liabilities an;d Deferred Credits
Deferred income taxes - noncurrent......................
Investment tax credits..................................
Postretirement benefits other than pensions...............
Regulatory liabilities..................................
Deferred revenue........................................
Other...................................................
------- --------- ------------ ----------- --------------
Total Other Liabilities and Deferred Credits
------- --------- ------------ ----------- --------------
TOTAL CAPITALIZATION LIABILITIES
======= ========= ============ =========== ==============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 122
F-1I (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Propane Corporation and Subsidiaries
Consolidated Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CPC
ASSETS CPC PET CPLP CPH Combined Entries Consolidated
------- ------- -------- -------- -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant,
at original cost .......................... * * * * * * *
Accumulated depreciation...................
------- ------- -------- -------- -------- ------------- ------------
Net Gas Utility and Other Plant ...........
------- ------- -------- -------- -------- ------------- ------------
Gas and oil producing properties,
full cost method............................
United States cost center................
Canadian cost center.....................
Accumulated depletion .....................
------- ------- -------- -------- -------- ------------- ------------
Net Gas and Oil Producing Properties ......
------- ------- -------- -------- -------- ------------- ------------
Net Property, Plant, and Equipment ..........
------- ------- -------- -------- -------- ------------- ------------
Investments and Other Assets
Accounts receivable - noncurrent...........
Unconsolidated affiliates .................
Net assets of discontinued operations .....
Assets held for sale.......................
Other .....................................
------- ------- -------- -------- -------- ------------- ------------
Total Investments and Other Assets ..........
------- ------- -------- -------- -------- ------------- ------------
Investments in Subsidiaries
Capital stock .............................
Equity in undistributed earnings of
subsidiaries .............................
Notes receivable ..........................
Other investments..........................
------- ------- -------- -------- -------- ------------- ------------
Total Investments in Subsidiaries ...........
------- ------- -------- -------- -------- ------------- ------------
Current Assets
Cash and temporary cash investments .......
Accounts receivable, net
Customers ...............................
Intercompany ............................
Other ...................................
Income tax refunds.........................
Gas inventory .............................
Other inventories, at average cost ........
Prepayments ...............................
Regulatory assets .........................
Underrecovered gas costs...................
Deferred property taxes....................
Exchange gas receivable....................
Other .....................................
------- ------- -------- -------- -------- ------------- ------------
Total Current Assets ........................
------- ------- -------- -------- -------- ------------- ------------
Deferred Charges ............................
Long-term Regulatory Assets .................
------- ------- -------- -------- -------- ------------- ------------
TOTAL ASSETS ................................
======= ======= ======== ======== ======== ============= ============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 123
F-1I (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Propane Corporation and Subsidiaries
Consolidated Balance Sheet as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CPC
CAPITALIZATION AND LIABILITIES CPC PET CPLP CPH Combined Entries Consolidated
------ ------ ------ ------ -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares * * * * * *
Subsidiaries - common stock
Additional paid in capital
Retained earnings
Accumulated foreign currency translation adjustment
Unearned employee compensation
Treasury stock
Equity for debt recapitalization
------ ------ ------ ------ -------- ------------- ------------
Total common stock equity
------ ------ ------ ------ -------- ------------- ------------
Long-term debt
Installment promissory notes payable
------ ------ ------ ------ -------- ------------- ------------
Total Capitalization
------ ------ ------ ------ -------- ------------- ------------
Current Liabilities
Short-term debt
Current maturities of L.T. debt
Accounts and drafts payable
Intercompany notes and loans - current maturities
Intercompany short-term loans
Intercompany accounts payable
Accrued taxes
Accrued interest
Estimated rate refunds
Estimated supplier obligations
Overrecovered gas costs
Transportation and exchange gas payable
Deferred income taxes
Regulatory liabilities
Other
------ ------ ------ ------ -------- ------------- ------------
Total Current Liabilities
------ ------ ------ ------ -------- ------------- ------------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent
Investment tax credits
Postretirement benefits other than pensions
Regulatory liabilities
Deferred revenue
Other
------ ------ ------ ------ -------- ------------- ------------
Total Other Liabilities and Deferred Credits
------ ------ ------ ------ -------- ------------- ------------
TOTAL CAPITALIZATION AND LIABILITIES
====== ====== ====== ====== ======== ============= ============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 124
F-2 (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidated Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
ASSETS Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost * * * *
Accumulated depreciation
--------- ------------ ----------- -------------
Net Gas Utility and Other Plant
--------- ------------ ----------- -------------
Gas and oil producing properties, full cost method
United States cost center
Canadian cost center
Accumulated depletion
--------- ------------ ----------- -------------
Net Gas and Oil Producing Properties
--------- ------------ ----------- -------------
Net Property, Plant, and Equipment
--------- ------------ ----------- -------------
Investments and Other Assets
Accounts receivable - noncurrent
Unconsolidated affiliates
Net assets of discontinued operations
Assets held for sale
Other
--------- ------------ ----------- -------------
Total Investments and Other Assets
--------- ------------ ----------- -------------
Investments in Subsidiaries
Capital stock
Equity in undistributed earnings of
subsidiaries
Notes receivable
Other investments
--------- ------------ ----------- -------------
Total Investments in Subsidiaries
--------- ------------ ----------- -------------
Current Assets
Cash and temporary cash investments
Accounts receivable, net
Customers
Intercompany
Other
Income tax refunds
Gas inventory
Other inventories, at average cost
Prepayments
Regulatory assets
Underrecovered gas costs
Deferred property taxes
Exchange gas receivable
Other
--------- ------------ ----------- -------------
Total Current Assets
--------- ------------ ----------- -------------
Deferred Charges
Long-term Regulatory Assets
--------- ------------ ----------- -------------
TOTAL ASSETS
========= ============ =========== =============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 125
F-2 (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidated Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
CAPITALIZATION AND LIABILITIES Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares * * * *
Subsidiaries - common stock
Additional paid in capital
Retained earnings
Accumulated foreign currency translation adjustment
Unearned employee compensation
Equity for debt recapitalization
--------- ------------ ----------- -------------
Total common stock equity
--------- ------------ ----------- -------------
Long-term debt
Installment promissory notes payable
Other intercompany notes and loans
--------- ------------ ----------- -------------
Total Capitalization
--------- ------------ ----------- -------------
Current Liabilities
Short-term debt
Debt obligations
Accounts and drafts payable
Intercompany notes and loans - current maturities
Intercompany short-term loans
Intercompany accounts payable
Accrued taxes
Accrued interest
Estimated rate refunds
Estimated supplier obligations
Overrecovered gas costs
Transportation and exchange gas payable
Deferred income taxes
Regulatory liabilities
Other
--------- ------------ ----------- -------------
Total Current Liabilities
--------- ------------ ----------- -------------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent
Investment tax credits
Postretirement benefits other than pensions
Regulatory liabilities
Long-term regulatory liabilities
Deferred revenue
Other
--------- ------------ ----------- -------------
Total Other Liabilities and Deferred Credits
--------- ------------ ----------- -------------
TOTAL CAPITALIZATION AND LIABILITIES
========= ============ =========== =============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 126
F-2A (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
ASSETS Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost * * * *
Accumulated depreciation
--------- ------------ ----------- -------------
Net Gas Utility and Other Plant
--------- ------------ ----------- -------------
Gas and oil producing properties, full cost method
United States cost center
Canadian cost center
Accumulated depletion
--------- ------------ ----------- -------------
Net Gas and Oil Producing Properties
--------- ------------ ----------- -------------
Net Property, Plant, and Equipment
--------- ------------ ----------- -------------
Investments and Other Assets
Accounts receivable - noncurrent
Unconsolidated affiliates
Net assets of discontinued operations
Assets held for sale
Other
--------- ------------ ----------- -------------
Total Investments and Other Assets
--------- ------------ ----------- -------------
Investments in Subsidiaries
Capital stock
Equity in undistributed earnings of
subsidiaries
Notes receivable
Other investments
--------- ------------ ----------- -------------
Total Investments in Subsidiaries
--------- ------------ ----------- -------------
Current Assets
Cash and temporary cash investments
Accounts receivable, net
Customers
Intercompany
Other
Income tax refunds
Gas inventory
Other inventories, at average cost
Prepayments
Regulatory assets
Underrecovered gas costs
Deferred property taxes
Exchange gas receivable
Other
--------- ------------ ----------- -------------
Total Current Assets
--------- ------------ ----------- -------------
Deferred Charges
Long-term Regulatory Assets
--------- ------------ ----------- -------------
TOTAL ASSETS
========= ============ =========== =============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 127
F-2A (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
CAPITALIZATION AND LIABILITIES Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares * * * *
Subsidiaries - common stock
Additional paid in capital
Retained earnings
Accumulated foreign currency translation adjustment
Unearned employee compensation
Treasury stock
Equity for debt recapitalization
--------- ------------ ----------- -------------
Total common stock equity
--------- ------------ ----------- -------------
Long-term debt
Installment promissory notes payable
--------- ------------ ----------- -------------
Total Capitalization
--------- ------------ ----------- -------------
Current Liabilities
Short-term debt
Current maturities of L.T. debt
Accounts and drafts payable
Intercompany notes and loans - current maturities
Intercompany short-term loans
Intercompany accounts payable
Accrued taxes
Accrued interest
Estimated rate refunds
Estimated supplier obligations
Overrecovered gas costs
Transportation and exchange gas payable
Deferred income taxes
Regulatory liabilities
Other
--------- ------------ ----------- -------------
Total Current Liabilities
--------- ------------ ----------- -------------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent
Investment tax credits
Postretirement benefits other than pensions
Regulatory liabilities
Deferred revenue
Other
--------- ------------ ----------- -------------
Total Other Liabilities and Deferred Credits
--------- ------------ ----------- -------------
TOTAL CAPITALIZATION AND LIABILITIES
========= ============ =========== =============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 128
F-2B (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Group Capital Corporation and Subsidiaries
Consolidating Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
ASSETS Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost * * * *
Accumulated depreciation
--------- ------------ ----------- -------------
Net Gas Utility and Other Plant
--------- ------------ ----------- -------------
Gas and oil producing properties, full cost method
United States cost center
Canadian cost center
Accumulated depletion
--------- ------------ ----------- -------------
Net Gas and Oil Producing Properties
--------- ------------ ----------- -------------
Net Property, Plant, and Equipment
--------- ------------ ----------- -------------
Investments and Other Assets
Accounts receivable - noncurrent
Unconsolidated affiliates
Net assets of discontinued operations
Assets held for sale
Other
--------- ------------ ----------- -------------
Total Investments and Other Assets
--------- ------------ ----------- -------------
Investments in Subsidiaries
Capital stock
Equity in undistributed earnings of
subsidiaries
Notes receivable
Other investments
--------- ------------ ----------- -------------
Total Investments in Subsidiaries
--------- ------------ ----------- -------------
Current Assets
Cash and temporary cash investments
Accounts receivable, net
Customers
Intercompany
Other
Income tax refunds
Gas inventory
Other inventories, at average cost
Prepayments
Regulatory assets
Underrecovered gas costs
Deferred property taxes
Exchange gas receivable
Other
--------- ------------ ----------- -------------
Total Current Assets
--------- ------------ ----------- -------------
Deferred Charges
Long-term Regulatory Assets
--------- ------------ ----------- -------------
TOTAL ASSETS
========= ============ =========== =============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 129
F-2B (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Group Capital Corporation and Subsidiaries
Consolidating Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
CAPITALIZATION AND LIABILITIES Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares * * * *
Subsidiaries - common stock
Additional paid in capital
Retained earnings
Accumulated foreign currency translation adjustment.
Unearned employee compensation
Treasury stock
Equity for debt recapitalization
--------- ------------ ----------- -------------
Total common stock equity
--------- ------------ ----------- -------------
Long-term debt
Installment promissory notes payable
--------- ------------ ----------- -------------
Total Capitalization
--------- ------------ ----------- -------------
Current Liabilities
Short-term debt
Current maturities of L.T. debt
Accounts and drafts payable
Intercompany notes and loans - current maturities
Intercompany short-term loans
Intercompany accounts payable
Accrued taxes
Accrued interest
Estimated rate refunds
Estimated supplier obligations
Overrecovered gas costs
Transportation and exchange gas payable
Deferred income taxes
Regulatory liabilities
Other
--------- ------------ ----------- -------------
Total Current Liabilities
--------- ------------ ----------- -------------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent
Investment tax credits
Postretirement benefits other than pensions
Regulatory liabilities
Deferred revenue
Other
--------- ------------ ----------- -------------
Total Other Liabilities and Deferred Credits
--------- ------------ ----------- -------------
TOTAL CAPITALIZATION AND LIABILITIES
========= ============ =========== =============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 130
F-2C (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia LNG Corporation and Subsidiary
Consolidating Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
ASSETS Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost * * * *
Accumulated depreciation
--------- ------------ ----------- -------------
Net Gas Utility and Other Plant
--------- ------------ ----------- -------------
Gas and oil producing properties, full cost method.
United States cost center
Canadian cost center
Accumulated depletion
--------- ------------ ----------- -------------
Net Gas and Oil Producing Properties
--------- ------------ ----------- -------------
Net Property, Plant, and Equipment
--------- ------------ ----------- -------------
Investments and Other Assets
Accounts receivable - noncurrent
Unconsolidated affiliates
Net assets of discontinued operations
Assets held for sale
Other
--------- ------------ ----------- -------------
Total Investments and Other Assets
--------- ------------ ----------- -------------
Investments in Subsidiaries
Capital stock
Equity in undistributed earnings of
subsidiaries
Notes receivable
Other investments
--------- ------------ ----------- -------------
Total Investments in Subsidiaries
--------- ------------ ----------- -------------
Current Assets
Cash and temporary cash investments
Accounts receivable, net
Customers
Intercompany
Other
Income tax refunds
Gas inventory
Other inventories, at average cost
Prepayments
Regulatory assets
Underrecovered gas costs
Deferred property taxes
Exchange gas receivable
Other
--------- ------------ ----------- -------------
Total Current Assets
--------- ------------ ----------- -------------
Deferred Charges
Long-term Regulatory Assets
--------- ------------ ----------- -------------
TOTAL ASSETS
========= ============ =========== =============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 131
F-2C (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia LNG Corporation and Subsidiary
Consolidating Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
CAPITALIZATION AND LIABILITIES Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares * * * *
Subsidiaries - common stock
Additional paid in capital
Retained earnings
Accumulated foreign currency translation adjustment
Unearned employee compensation
Treasury stock
Equity for debt recapitalization
--------- ------------ ----------- -------------
Total common stock equity
--------- ------------ ----------- -------------
Long-term debt
Installment promissory notes payable
--------- ------------ ----------- -------------
Total Capitalization
--------- ------------ ----------- -------------
Current Liabilities
Short-term debt
Current maturities of L.T. debt
Accounts and drafts payable
Intercompany notes and loans - current maturities
Intercompany short-term loans
Intercompany accounts payable
Accrued taxes
Accrued interest
Estimated rate refunds
Estimated supplier obligations
Overrecovered gas costs
Transportation and exchange gas payable
Deferred income taxes
Regulatory liabilities
Other
--------- ------------ ----------- -------------
Total Current Liabilities
--------- ------------ ----------- -------------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent
Investment tax credits
Postretirement benefits other than pensions
Regulatory liabilities
Deferred revenue
Other
--------- ------------ ----------- -------------
Total Other Liabilities and Deferred Credits
--------- ------------ ----------- -------------
TOTAL CAPITALIZATION AND LIABILITIES
========= ============ =========== =============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 132
F-2D (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Services Corporation and Subsidiaries
Consolidating Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
ASSETS Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost * * * *
Accumulated depreciation
--------- ------------ ----------- -------------
Net Gas Utility and Other Plant
--------- ------------ ----------- -------------
Gas and oil producing properties, full cost method.
United States cost center
Canadian cost center
Accumulated depletion
--------- ------------ ----------- -------------
Net Gas and Oil Producing Properties
--------- ------------ ----------- -------------
Net Property, Plant, and Equipment
--------- ------------ ----------- -------------
Investments and Other Assets
Accounts receivable - noncurrent
Unconsolidated affiliates
Net assets of discontinued operations
Assets held for sale
Other
--------- ------------ ----------- -------------
Total Investments and Other Assets
--------- ------------ ----------- -------------
Investments in Subsidiaries
Capital stock
Equity in undistributed earnings of
subsidiaries
Notes receivable
Other investments
--------- ------------ ----------- -------------
Total Investments in Subsidiaries
--------- ------------ ----------- -------------
Current Assets
Cash and temporary cash investments
Accounts receivable, net
Customers
Intercompany
Other
Income tax refunds
Gas inventory
Other inventories, at average cost
Prepayments
Regulatory assets
Underrecovered gas costs
Deferred property taxes
Exchange gas receivable
Other
--------- ------------ ----------- -------------
Total Current Assets
--------- ------------ ----------- -------------
Deferred Charges
Long-term Regulatory Assets
--------- ------------ ----------- -------------
TOTAL ASSETS
========= ============ =========== =============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 133
F-2D (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Services Corporation and Subsidiaries
Consolidating Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
CAPITALIZATION AND LIABILITIES Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares * * * *
Subsidiaries - common stock
Additional paid in capital
Retained earnings
Accumulated foreign currency translation adjustment
Unearned employee compensation
Treasury stock
Equity for debt recapitalization
--------- ------------ ----------- -------------
Total common stock equity
--------- ------------ ----------- -------------
Long-term debt
Installment promissory notes payable
--------- ------------ ----------- -------------
Total Capitalization
--------- ------------ ----------- -------------
Current Liabilities
Short-term debt
Current maturities of L.T. debt
Accounts and drafts payable
Intercompany notes and loans - current maturities
Intercompany short-term loans
Intercompany accounts payable
Accrued taxes
Accrued interest
Estimated rate refunds
Estimated supplier obligations
Overrecovered gas costs
Transportation and exchange gas payable
Deferred income taxes
Regulatory liabilities
Other
--------- ------------ ----------- -------------
Total Current Liabilities
--------- ------------ ----------- -------------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent
Investment tax credits
Postretirement benefits other than pensions
Regulatory liabilities
Deferred revenue
Other
--------- ------------ ----------- -------------
Total Other Liabilities and Deferred Credits
--------- ------------ ----------- -------------
TOTAL CAPITALIZATION AND LIABILITIES
========= ============ =========== =============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 134
F-2E (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Network Services Corporation and Subsidiaries
Consolidated Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
ASSETS Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost * * * *
Accumulated depreciation
--------- ------------ ----------- -------------
Net Gas Utility and Other Plant
--------- ------------ ----------- -------------
Gas and oil producing properties, full cost method
United States cost center
Canadian cost center
Accumulated depletion
--------- ------------ ----------- -------------
Net Gas and Oil Producing Properties
--------- ------------ ----------- -------------
Net Property, Plant, and Equipment
--------- ------------ ----------- -------------
Investments and Other Assets
Accounts receivable - noncurrent
Unconsolidated affiliates
Net assets of discontinued operations
Assets held for sale
Other
--------- ------------ ----------- -------------
Total Investments and Other Assets
--------- ------------ ----------- -------------
Investments in Subsidiaries
Capital stock
Equity in undistributed earnings of
subsidiaries
Notes receivable
Other investments
--------- ------------ ----------- -------------
Total Investments in Subsidiaries
--------- ------------ ----------- -------------
Current Assets
Cash and temporary cash investments
Accounts receivable, net
Customers
Intercompany
Other
Income tax refunds
Gas inventory
Other inventories, at average cost
Prepayments
Regulatory assets
Underrecovered gas costs
Deferred property taxes
Exchange gas receivable
Other
--------- ------------ ----------- -------------
Total Current Assets
--------- ------------ ----------- -------------
Deferred Charges
Long-term Regulatory Assets
--------- ------------ ----------- -------------
TOTAL ASSETS
========= ============ =========== =============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 135
F-2E (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Network Services Corporation and Subsidiaries
Consolidated Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
CAPITALIZATION AND LIABILITIES Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares * * * *
Subsidiaries - common stock
Additional paid in capital
Retained earnings
Accumulated foreign currency translation adjustment
Unearned employee compensation
Treasury stock
Equity for debt recapitalization
--------- ------------ ----------- -------------
Total common stock equity
--------- ------------ ----------- -------------
Long-term debt
Installment promissory notes payable
--------- ------------ ----------- -------------
Total Capitalization
--------- ------------ ----------- -------------
Current Liabilities
Short-term debt
Current maturities of L.T. debt
Accounts and drafts payable
Intercompany notes and loans - current maturities
Intercompany short-term loans
Intercompany accounts payable
Accrued taxes
Accrued interest
Estimated rate refunds
Estimated supplier obligations
Overrecovered gas costs
Transportation and exchange gas payable
Deferred income taxes
Regulatory liabilities
Other
--------- ------------ ----------- -------------
Total Current Liabilities
--------- ------------ ----------- -------------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent
Investment tax credits
Postretirement benefits other than pensions
Regulatory liabilities
Deferred revenue
Other
--------- ------------ ----------- -------------
Total Other Liabilities and Deferred Credits
--------- ------------ ----------- -------------
TOTAL CAPITALIZATION AND LIABILITIES
========= ============ =========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 136
F-2F (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Resources, Inc. and Subsidiaries
Consolidating Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
ASSETS Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost * * * *
Accumulated depreciation
--------- ------------ ----------- -------------
Net Gas Utility and Other Plant
--------- ------------ ----------- -------------
Gas and oil producing properties, full cost method
United States cost center
Canadian cost center
Accumulated depletion
--------- ------------ ----------- -------------
Net Gas and Oil Producing Properties
--------- ------------ ----------- -------------
Net Property, Plant, and Equipment
--------- ------------ ----------- -------------
Investments and Other Assets
Accounts receivable - noncurrent
Unconsolidated affiliates
Net assets of discontinued operations
Assets held for sale
Other
--------- ------------ ----------- -------------
Total Investments and Other Assets
--------- ------------ ----------- -------------
Investments in Subsidiaries
Capital stock
Equity in undistributed earnings of
subsidiaries
Notes receivable
Other investments
--------- ------------ ----------- -------------
Total Investments in Subsidiaries
--------- ------------ ----------- -------------
Current Assets
Cash and temporary cash investments
Accounts receivable, net
Customers
Intercompany
Other
Income tax refunds
Gas inventory
Other inventories, at average cost
Prepayments
Regulatory assets
Underrecovered gas costs
Deferred property taxes
Exchange gas receivable
Other
--------- ------------ ----------- -------------
Total Current Assets
--------- ------------ ----------- -------------
Deferred Charges
Long-term Regulatory Assets
--------- ------------ ----------- -------------
TOTAL ASSETS
========= ============ =========== =============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 137
F-2F (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Resources, Inc. and Subsidiaries
Consolidating Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
CAPITALIZATION AND LIABILITIES Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares * * * *
Subsidiaries - common stock
Additional paid in capital
Retained earnings
Accumulated foreign currency translation adjustment
Unearned employee compensation
Treasury stock
Equity for debt recapitalization
--------- ------------ ----------- -------------
Total common stock equity
--------- ------------ ----------- -------------
Long-term debt
Installment promissory notes payable
--------- ------------ ----------- -------------
Total Capitalization
--------- ------------ ----------- -------------
Current Liabilities
Short-term debt
Current maturities of L.T. debt
Accounts and drafts payable
Intercompany notes and loans - current maturities
Intercompany short-term loans
Intercompany accounts payable
Accrued taxes
Accrued interest
Estimated rate refunds
Estimated supplier obligations
Overrecovered gas costs
Transportation and exchange gas payable
Deferred income taxes
Regulatory liabilities
Other
--------- ------------ ----------- -------------
Total Current Liabilities
--------- ------------ ----------- -------------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent
Investment tax credits
Postretirement benefits other than pensions
Regulatory liabilities
Deferred revenue
Other
--------- ------------ ----------- -------------
Total Other Liabilities and Deferred Credits
--------- ------------ ----------- -------------
TOTAL CAPITALIZATION AND LIABILITIES
========= ============ =========== =============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 138
F-2G (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Pipeline Company and Subsidiary
Consolidating Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
ASSETS Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost * * * *
Accumulated depreciation
--------- ------------ ----------- -------------
Net Gas Utility and Other Plant
--------- ------------ ----------- -------------
Gas and oil producing properties, full cost method.
United States cost center
Canadian cost center
Accumulated depletion
--------- ------------ ----------- -------------
Net Gas and Oil Producing Properties
--------- ------------ ----------- -------------
Net Property, Plant, and Equipment
--------- ------------ ----------- -------------
Investments and Other Assets
Accounts receivable - noncurrent
Unconsolidated affiliates
Net assets of discontinued operations
Assets held for sale
Other
--------- ------------ ----------- -------------
Total Investments and Other Assets
--------- ------------ ----------- -------------
Investments in Subsidiaries
Capital stock
Equity in undistributed earnings of subsidiaries
Notes receivable
Other investments
--------- ------------ ----------- -------------
Total Investments in Subsidiaries
--------- ------------ ----------- -------------
Current Assets
Cash and temporary cash investments
Accounts receivable, net Customers
Intercompany
Other
Income tax refunds
Gas inventory
Other inventories, at average cost
Prepayments
Regulatory assets
Underrecovered gas costs
Deferred property taxes
Exchange gas receivable
Other
--------- ------------ ----------- -------------
Total Current Assets
--------- ------------ ----------- -------------
Deferred Charges
Long-term Regulatory Assets
--------- ------------ ----------- -------------
TOTAL ASSETS
========= ============ =========== =============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 139
F-2G (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Pipeline Company and Subsidiary
Consolidating Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
CAPITALIZATION AND LIABILITIES Total Transactions Equity Adjustments
-------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares............ * * * *
Subsidiaries - common stock .........................
Additional paid in capital ..........................
Retained earnings ...................................
Accumulated foreign currency translation adjustment..
Unearned employee compensation ......................
Treasury stock ......................................
Equity for debt recapitalization ....................
-------- ------------ ----------- -------------
Total common stock equity .............................
-------- ------------ ----------- -------------
Long-term debt ........................................
Installment promissory notes payable ..................
-------- ------------ ----------- -------------
Total Capitalization ....................................
-------- ------------ ----------- -------------
Current Liabilities
Short-term debt........................................
Current maturities of L.T. debt........................
Accounts and drafts payable ...........................
Intercompany notes and loans - current maturities .....
Intercompany short-term loans .........................
Intercompany accounts payable .........................
Accrued taxes .........................................
Accrued interest ......................................
Estimated rate refunds ................................
Estimated supplier obligations ........................
Overrecovered gas costs................................
Transportation and exchange gas payable ...............
Deferred income taxes .................................
Regulatory liabilities ................................
Other..................................................
-------- ------------ ----------- -------------
Total Current Liabilities ...............................
-------- ------------ ----------- -------------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent ....................
Investment tax credits ................................
Postretirement benefits other than pensions ...........
Regulatory liabilities ................................
Deferred revenue.......................................
Other..................................................
-------- ------------ ----------- -------------
Total Other Liabilities and Deferred Credits ............
-------- ------------ ----------- -------------
TOTAL CAPITALIZATION AND LIABILITIES ....................
======== ============ =========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 140
F-2H (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Finance Corporation and Subsidiary
Consolidating Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
ASSETS Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... * * * *
Accumulated depreciation...........................
--------- ------------ ----------- -------------
Net Gas Utility and Other Plant ...................
--------- ------------ ----------- -------------
Gas and oil producing properties, full cost method.
United States cost center........................
Canadian cost center.............................
Accumulated depletion .............................
--------- ------------ ----------- -------------
Net Gas and Oil Producing Properties ..............
--------- ------------ ----------- -------------
Net Property, Plant, and Equipment ..................
--------- ------------ ----------- -------------
Investments and Other Assets
Accounts receivable - noncurrent...................
Unconsolidated affiliates .........................
Net assets of discontinued operations .............
Assets held for sale...............................
Other .............................................
--------- ------------ ----------- -------------
Total Investments and Other Assets ..................
--------- ------------ ----------- -------------
Investments in Subsidiaries
Capital stock .....................................
Equity in undistributed earnings of
subsidiaries .....................................
Notes receivable ..................................
Other investments .................................
--------- ------------ ----------- -------------
Total Investments in Subsidiaries ...................
--------- ------------ ----------- -------------
Current Assets
Cash and temporary cash investments ...............
Accounts receivable, net
Customers .......................................
Intercompany ....................................
Other ...........................................
Income tax refunds.................................
Gas inventory .....................................
Other inventories, at average cost ................
Prepayments .......................................
Regulatory assets .................................
Underrecovered gas costs...........................
Deferred property taxes............................
Exchange gas receivable............................
Other .............................................
--------- ------------ ----------- -------------
Total Current Assets ................................
--------- ------------ ----------- -------------
Deferred Charges ....................................
Long-term Regulatory Assets .........................
--------- ------------ ----------- -------------
TOTAL ASSETS ........................................
========= ============ =========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 141
F-2H (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Finance Corporation and Subsidiary
Consolidating Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
CAPITALIZATION AND LIABILITIES Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares............. * * * *
Subsidiaries - common stock .........................
Additional paid in capital ..........................
Retained earnings ...................................
Accumulated foreign currency translation adjustment..
Unearned employee compensation ......................
Treasury stock.......................................
Equity for debt recapitalization.....................
--------- ------------ ----------- -------------
Total common stock equity .............................
--------- ------------ ----------- -------------
Long-term debt ........................................
Installment promissory notes payable ..................
--------- ------------ ----------- -------------
Total Capitalization ....................................
--------- ------------ ----------- -------------
Current Liabilities
Short-term debt........................................
Current maturities of L.T. debt........................
Accounts and drafts payable ...........................
Intercompany notes and loans - current maturities .....
Intercompany short-term loans .........................
Intercompany accounts payable .........................
Accrued taxes .........................................
Accrued interest ......................................
Estimated rate refunds ................................
Estimated supplier obligations ........................
Overrecovered gas costs................................
Transportation and exchange gas payable ...............
Deferred income taxes .................................
Regulatory liabilities.................................
Other..................................................
--------- ------------ ----------- -------------
Total Current Liabilities ...............................
--------- ------------ ----------- -------------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent.....................
Investment tax credits ................................
Postretirement benefits other than pensions ...........
Regulatory liabilities.................................
Deferred revenue.......................................
Other..................................................
--------- ------------ ----------- -------------
Total Other Liabilities and Deferred Credits ............
--------- ------------ ----------- -------------
TOTAL CAPITALIZATION AND LIABILITIES ....................
========= ============ =========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 142
F-2I (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Propane Corporation and Subsidiaries
Consolidated Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
ASSETS Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Property, Plant and Equipment
Gas utility and other plant, at original cost ..... * * * *
Accumulated depreciation...........................
--------- ------------ ----------- -------------
Net Gas Utility and Other Plant ...................
--------- ------------ ----------- -------------
Gas and oil producing properties, full cost
method............................................
United States cost center........................
Canadian cost center.............................
Accumulated depletion .............................
--------- ------------ ----------- -------------
Net Gas and Oil Producing Properties ..............
--------- ------------ ----------- -------------
Net Property, Plant, and Equipment ..................
--------- ------------ ----------- -------------
Investments and Other Assets
Accounts receivable - noncurrent...................
Unconsolidated affiliates .........................
Net assets of discontinued operations .............
Assets held for sale...............................
Other .............................................
--------- ------------ ----------- -------------
Total Investments and Other Assets ..................
--------- ------------ ----------- -------------
Investments in Subsidiaries
Capital stock .....................................
Equity in undistributed earnings of
subsidiaries .....................................
Notes receivable ..................................
Other investments..................................
--------- ------------ ----------- -------------
Total Investments in Subsidiaries ...................
--------- ------------ ----------- -------------
Current Assets
Cash and temporary cash investments ...............
Accounts receivable, net
Customers .......................................
Intercompany ....................................
Other ...........................................
Income tax refunds.................................
Gas inventory .....................................
Other inventories, at average cost ................
Prepayments .......................................
Regulatory assets .................................
Underrecovered gas costs...........................
Deferred property taxes............................
Exchange gas receivable............................
Other .............................................
--------- ------------ ----------- -------------
Total Current Assets ................................
--------- ------------ ----------- -------------
Deferred Charges ....................................
Long-term Regulatory Assets .........................
--------- ------------ ----------- -------------
TOTAL ASSETS ........................................
========= ============ =========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 143
F-2I (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Propane Corporation and Subsidiaries
Consolidated Balance Sheet Entries as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
CAPITALIZATION AND LIABILITIES Total Transactions Equity Adjustments
--------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Capitalization
Common Stock Equity
Columbia Energy Group - common stock,
$.01 par value, issued 83,786,942 shares............ * * * *
Subsidiaries - common stock .........................
Additional paid in capital ..........................
Retained earnings ...................................
Accumulated foreign currency translation adjustment..
Unearned employee compensation ......................
Treasury stock.......................................
Equity for debt recapitalization.....................
--------- ------------ ----------- -------------
Total common stock equity .............................
--------- ------------ ----------- -------------
Long-term debt ........................................
Installment promissory notes payable ..................
--------- ------------ ----------- -------------
Total Capitalization ....................................
--------- ------------ ----------- -------------
Current Liabilities
Short-term debt........................................
Current maturities of L.T. debt........................
Accounts and drafts payable ...........................
Intercompany notes and loans - current maturities......
Intercompany short-term loans .........................
Intercompany accounts payable .........................
Accrued taxes .........................................
Accrued interest.......................................
Estimated rate refunds ................................
Estimated supplier obligations ........................
Overrecovered gas costs................................
Transportation and exchange gas payable ...............
Deferred income taxes .................................
Regulatory liabilities.................................
Other .................................................
--------- ------------ ----------- -------------
Total Current Liabilities ...............................
--------- ------------ ----------- -------------
Other Liabilities and Deferred Credits
Deferred income taxes - noncurrent.....................
Investment tax credits ................................
Postretirement benefits other than pensions ...........
Regulatory liabilities.................................
Deferred revenue.......................................
Other .................................................
--------- ------------ ----------- -------------
Total Other Liabilities and Deferred Credits ............
--------- ------------ ----------- -------------
TOTAL CAPITALIZATION AND LIABILITIES ....................
========= ============ =========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 144
F-3 (1 of 5)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-3 F-3 F-3 F-3 Consolidating
Page 2 Page 3 Page 4 Page 5 Combined Entries Consolidated
------ ------ ------ ------ -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Net Revenues
Energy sales ................................... * * * * * * 2,085,517
Less: Products purchased........................ 1,194,352
------ ------ ------ ------ -------- ------------- ------------
Gross Margin.................................... 891,165
Transportation.................................. 706,291
Production gas sales............................ 120,163
Other........................................... 277,185
------ ------ ------ ------ -------- ------------- ------------
Total Net Revenues................................ 1,994,804
------ ------ ------ ------ -------- ------------- ------------
Operating Expenses
Operation and maintenance....................... 937,479
Settlement of gas supply charges................ (31,725)
Depreciation and depletion...................... 228,999
Other taxes..................................... 211,641
------ ------ ------ ------ -------- ------------- ------------
Total Operating Expenses.......................... 1,346,394
------ ------ ------ ------ -------- ------------- ------------
Operating Income (Loss)........................... 648,410
------ ------ ------ ------ -------- ------------- ------------
Other Income (Deductions)
Interest income and other, net.................. 29,191
Interest expense and related charges............ (164,391)
------ ------ ------ ------ -------- ------------- ------------
Total Other Income (Deductions)................... (135,200)
------ ------ ------ ------ -------- ------------- ------------
Income (Loss) from Continuing Operations
before Income Taxes............................. 513,210
Income Taxes...................................... 158,232
------ ------ ------ ------ -------- ------------- ------------
Income from Continuing Operations................. 354,978
------ ------ ------ ------ -------- ------------- ------------
Discontinued Operations - net of taxes
(Loss) from operations.......................... (80,005)
Estimated (loss) on disposal.................... (25,807)
------ ------ ------ ------ -------- ------------- ------------
(Loss) from Discontinued Operations - net
of taxes......................................... (105,812)
------ ------ ------ ------ -------- ------------- ------------
Net Income (Loss)................................. 249,166
====== ====== ====== ====== ======== ============= ============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 145
F-3 (2 of 5)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-3 Page 2
CER (a) TCO CGT CLG (a) CKY Total
--------- --------- --------- --------- --------- ----------
<S> <C> <C> <C> <C> <C> <C>
Net Revenues
Energy sales .................................... 1,594 1,921 - * 162,612 *
Less: Products purchased......................... 1,225 1,921 - 110,459
--------- --------- --------- --------- --------- ----------
Gross Margin..................................... 369 - - 52,153
Transportation .................................. - 478,588 135,494 7,944
Production gas sales ............................ 121,569 - - -
Other ........................................... 21,697 211,244 8,471 304
--------- --------- --------- --------- --------- ----------
Total Net Revenues ................................ 143,635 689,832 143,965 60,401
--------- --------- --------- --------- --------- ----------
Operating Expenses
Operation and maintenance........................ 52,695 293,752 63,430 26,446
Settlement of gas supply charges................. - (31,725) - -
Depreciation and depletion ...................... 36,929 84,740 21,121 7,792
Other taxes ..................................... 9,803 45,688 7,245 2,135
--------- --------- --------- --------- --------- ----------
Total Operating Expenses .......................... 99,427 392,455 91,796 36,373
--------- --------- --------- --------- --------- ----------
Operating Income (Loss) ........................... 44,208 297,377 52,169 24,028
--------- --------- --------- --------- --------- ----------
Other Income (Deductions)
Interest income and other, net................... * 6,698 12,089 1,639
Interest expense and related charges............. (48,226) (5,110) (4,198)
--------- --------- --------- --------- --------- ----------
Total Other Income (Deductions).................... (41,528) 6,979 (2,559)
--------- --------- --------- --------- --------- ----------
Income (Loss) from Continuing Operations
before Income Taxes.............................. 255,849 59,148 21,469
Income Taxes....................................... 70,954 21,534 7,605
--------- --------- --------- --------- --------- ----------
Income from Continuing Operations.................. 184,895 37,614 13,864
--------- --------- --------- --------- --------- ----------
Discontinued Operations - net of taxes
(Loss) from operations........................... - - -
Estimated (loss) on disposal..................... - - -
--------- --------- --------- --------- --------- ----------
(Loss) from Discontinued Operations - net of taxes. - - -
--------- --------- --------- --------- --------- ----------
Net Income (Loss).................................. 184,895 37,614 13,864
========= ========= ========= ========= ========= ==========
</TABLE>
(a) CER includes four subsidiaries and CLG includes one subsidiary as noted in
Item 1. Consolidating financial statements of CER and CLG are presented herewith
in Item 10, Exhibits F-1F through F-6F and F-1C through F-6C, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 146
F-3 (3 of 5)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-3 Page 3
COH CMD CPA CGV CG Total
--------- --------- --------- --------- -------- ----------
<S> <C> <C> <C> <C> <C> <C>
Net Revenues
Energy sales .................................... 961,172 48,273 380,113 162,130 * *
Less: Products purchased ....................... 660,651 32,081 249,996 84,710
--------- --------- --------- --------- -------- ----------
Gross Margin..................................... 300,521 16,192 130,117 77,420
Transportation .................................. 200,407 3,751 55,012 17,619
Production gas sales ............................ - - - -
Other ........................................... (15,286) 118 1,718 2,020
--------- --------- --------- --------- -------- ----------
Total Net Revenues ................................ 485,642 20,061 186,847 97,059
--------- --------- --------- --------- -------- ----------
Operating Expenses
Operation and maintenance........................ 231,856 8,911 88,719 46,137
Settlement of gas supply charges................. - - - -
Depreciation and depletion ...................... 16,811 2,286 15,945 11,700
Other taxes ..................................... 106,165 2,002 17,409 8,896
--------- --------- --------- --------- -------- ----------
Total Operating Expenses .......................... 354,832 13,199 122,073 66,733
--------- --------- --------- --------- -------- ----------
Operating Income (Loss) ........................... 130,810 6,862 64,774 30,326
--------- --------- --------- --------- -------- ----------
Other Income (Deductions)
Interest income and other, net .................. 4,946 441 1,159 1,993
Interest expense and related charges ............ (25,536) (1,357) (11,814) (9,844)
--------- --------- --------- --------- -------- ----------
Total Other Income (Deductions) ................... (20,590) (916) (10,655) (7,851)
--------- --------- --------- --------- -------- ----------
Income (Loss) from Continuing Operations
before Income Taxes.............................. 110,220 5,946 54,119 22,475
Income Taxes....................................... 35,026 2,152 20,202 7,794
--------- --------- --------- --------- -------- ----------
Income (Loss) from Continuing Operations........... 75,194 3,794 33,917 14,681
--------- --------- --------- --------- -------- ----------
Discontinued Operations - net of taxes
(Loss) from operations........................... - - - -
Estimated (loss) on disposal..................... - - - -
--------- --------- --------- --------- -------- ----------
(Loss) from Discontinued Operations - net of taxes. - - - -
--------- --------- --------- --------- -------- ----------
Net Income (Loss).................................. 75,194 3,794 33,917 14,681
========= ========= ========= ========= ======== ==========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 147
F-3 (4 of 5)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-3 Page 4
CS CIC CES (a) CPC (a) CEC (a) Total
------ ------- --------- --------- --------- ----------
<S> <C> <C> <C> <C> <C> <C>
Net Revenues
Energy sales ..................................... * * * * * *
Less: Products purchased..........................
------ ------- --------- --------- --------- ----------
Gross Margin......................................
Transportation....................................
Production gas sales..............................
Other.............................................
------ ------- --------- --------- --------- ----------
Total Net Revenues..................................
------ ------- --------- --------- --------- ----------
Operating Expenses
Operation and maintenance.........................
Settlement of gas supply charges..................
Depreciation and depletion........................
Other taxes.......................................
------ ------- --------- --------- --------- ----------
Total Operating Expenses............................
------ ------- --------- --------- --------- ----------
Operating Income (Loss).............................
------ ------- --------- --------- --------- ----------
Other Income (Deductions)
Interest income and other, net....................
Interest expense and related charges..............
------ ------- --------- --------- --------- ----------
Total Other Income (Deductions).....................
------ ------- --------- --------- --------- ----------
Income (Loss) from Continuing Operations
before Income Taxes...............................
Income Taxes........................................
------ ------- --------- --------- --------- ----------
Income from Continuing Operations...................
------ ------- --------- --------- --------- ----------
Discontinued Operations - net of taxes
(Loss) from operations............................
Estimated (loss) on disposal......................
------ ------- --------- --------- --------- ----------
(Loss) from Discontinued Operations - net of taxes..
------ ------- --------- --------- --------- ----------
Net Income (Loss)...................................
====== ======= ========= ========= ========= ==========
</TABLE>
(a) CES includes five subsidiaries, CPC includes three subsidiaries and CEC
includes sixteen subsidiaries as noted in Item 1. Consolidating financial
statements of CES, CPC and CEC are presented herewith in Item 10, Exhibits F-1D
through F-6D, F-1I through F-6I and F-1A through F-6A, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 148
F-3 (5 of 5)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-3 Page 5
CCC (a) CAT CNS (a) CPL (a) CFC (a) Total
--------- ------- --------- --------- --------- ----------
<S> <C> <C> <C> <C> <C> <C>
Net Revenues
Energy sales ..................................... * * * * * *
Less: Products purchased..........................
--------- ------- --------- --------- --------- ----------
Gross Margin......................................
Transportation....................................
Production gas sales..............................
Other.............................................
--------- ------- --------- --------- --------- ----------
Total Net Revenues..................................
--------- ------- --------- --------- --------- ----------
Operating Expenses
Operation and maintenance.........................
Settlement of gas supply charges..................
Depreciation and depletion........................
Other taxes.......................................
--------- ------- --------- --------- --------- ----------
Total Operating Expenses............................
--------- ------- --------- --------- --------- ----------
Operating Income (Loss).............................
--------- ------- --------- --------- --------- ----------
Other Income (Deductions)
Interest income and other, net....................
Interest expense and related charges..............
--------- ------- --------- --------- --------- ----------
Total Other Income (Deductions).....................
--------- ------- --------- --------- --------- ----------
Income (Loss) from Continuing Operations
before Income Taxes...............................
Income Taxes........................................
--------- ------- --------- --------- --------- ----------
Income from Continuing Operations...................
--------- ------- --------- --------- --------- ----------
Discontinued Operations - net of taxes
(Loss) from operations............................
Estimated (loss) on disposal......................
--------- ------- --------- --------- --------- ----------
(Loss) from Discontinued Operations - net of taxes..
--------- ------- --------- --------- --------- ----------
Net Income (Loss)...................................
========= ======= ========= ========= ========= ==========
</TABLE>
(a) Both CCC and CNS include two subsidiaries, CPL and CFC include one
subsidiary as noted in Item 1. Consolidating financial statements of CCC, CNS,
CPL, and CFC are presented herewith in Item 10, Exhibits F-1B through F-6B, F-1E
through F-6E and F-1G through F-6G and F-1H through F-6H, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 149
F-3A (1 of 4)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-3A F-3A F-3A Consolidating CEC
Page 2 Page 3 Page 4 Combined Entries Consolidated
----------- ----------- ----------- ----------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Net Revenues
Energy sales ................................... * * * * * *
Less: Products purchased........................
----------- ----------- ----------- ----------- ------------ ------------
Gross Margin....................................
Transportation..................................
Production gas sales............................
Other ..........................................
----------- ----------- ----------- ----------- ------------ ------------
Total Net Revenues................................
----------- ----------- ----------- ----------- ------------ ------------
Operating Expenses
Operation and maintenance.......................
Settlement of gas supply charges................
Depreciation and depletion .....................
Other taxes ....................................
----------- ----------- ----------- ----------- ------------ ------------
Total Operating Expenses .........................
----------- ----------- ----------- ----------- ------------ ------------
Operating Income (Loss) ..........................
----------- ----------- ----------- ----------- ------------ ------------
Other Income (Deductions)
Interest income and other, net .................
Interest expense and related charges ...........
----------- ----------- ----------- ----------- ------------ ------------
Total Other Income (Deductions) ..................
----------- ----------- ----------- ----------- ------------ ------------
Income (Loss) from Continuing Operations
before Income Taxes.............................
Income Taxes .....................................
----------- ----------- ----------- ----------- ------------ ------------
Income (Loss) from Continuing Operations..........
----------- ----------- ----------- ----------- ------------ ------------
Discontinued Operations - net of taxes
(Loss) from operations..........................
Estimated (loss) on disposal....................
----------- ----------- ----------- ----------- ------------ ------------
(Loss) from Discontinued Operations - net of taxes
----------- ----------- ----------- ----------- ------------ ------------
Net Income (Loss) ................................
=========== =========== =========== =========== ============ ============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 150
F-3A (2 of 4)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-3A Page 2
CBG CBL CCL CEC CEH Total
----------- ----------- ----------- ----------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Net Revenues
Energy sales ................................... * * * * * *
Less: Products purchased........................
----------- ----------- ----------- ----------- ------------ ------------
Gross Margin....................................
Transportation..................................
Production gas sales............................
Other ..........................................
----------- ----------- ----------- ----------- ------------ ------------
Total Net Revenues................................
----------- ----------- ----------- ----------- ------------ ------------
Operating Expenses
Operation and maintenance.......................
Settlement of gas supply charges................
Depreciation and depletion .....................
Other taxes ....................................
----------- ----------- ----------- ----------- ------------ ------------
Total Operating Expenses .........................
----------- ----------- ----------- ----------- ------------ ------------
Operating Income (Loss) ..........................
----------- ----------- ----------- ----------- ------------ ------------
Other Income (Deductions)
Interest income and other, net .................
Interest expense and related charges ...........
----------- ----------- ----------- ----------- ------------ ------------
Total Other Income (Deductions) ..................
----------- ----------- ----------- ----------- ------------ ------------
Income (Loss) from Continuing Operations
before Income Taxes.............................
Income Taxes .....................................
----------- ----------- ----------- ----------- ------------ ------------
Income (Loss) from Continuing Operations..........
----------- ----------- ----------- ----------- ------------ ------------
Discontinued Operations - net of taxes
(Loss) from operations..........................
Estimated (loss) on disposal....................
----------- ----------- ----------- ----------- ------------ ------------
(Loss) from Discontinued Operations - net of taxes
----------- ----------- ----------- ----------- ------------ ------------
Net Income (Loss) ................................
=========== =========== =========== =========== ============ ============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 151
F-3A (3 of 4)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-3A
Page 3
CEK CEL CGG CGP CEPL CGR Total
--------- --------- --------- --------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Net Revenues
Energy sales ................................... * * * * * * *
Less: Products purchased........................
--------- --------- --------- --------- ---------- ---------- ----------
Gross Margin....................................
Transportation..................................
Production gas sales............................
Other ..........................................
--------- --------- --------- --------- ---------- ---------- ----------
Total Net Revenues................................
--------- --------- --------- --------- ---------- ---------- ----------
Operating Expenses
Operation and maintenance.......................
Settlement of gas supply charges................
Depreciation and depletion .....................
Other taxes ....................................
--------- --------- --------- --------- ---------- ---------- ----------
Total Operating Expenses .........................
--------- --------- --------- --------- ---------- ---------- ----------
Operating Income (Loss) ..........................
--------- --------- --------- --------- ---------- ---------- ----------
Other Income (Deductions)
Interest income and other, net .................
Interest expense and related charges ...........
--------- --------- --------- --------- ---------- ---------- ----------
Total Other Income (Deductions) ..................
--------- --------- --------- --------- ---------- ---------- ----------
Income (Loss) from Continuing Operations
before Income Taxes.............................
Income Taxes .....................................
--------- --------- --------- --------- ---------- ---------- ----------
Income (Loss) from Continuing Operations..........
--------- --------- --------- --------- ---------- ---------- ----------
Discontinued Operations - net of taxes
(Loss) from operations..........................
Estimated (loss) on disposal....................
--------- --------- --------- --------- ---------- ---------- ----------
(Loss) from Discontinued Operations - net of taxes
--------- --------- --------- --------- ---------- ---------- ----------
Net Income (Loss) ................................
========= ========= ========= ========= ========== ========== ==========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 152
F-3A (4 of 4)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-3A
Page 4
CHC CLP CRL CVG CVL CLM Total
--------- --------- --------- --------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Net Revenues
Energy sales ................................... * * * * * * *
Less: Products purchased........................
--------- --------- --------- --------- ---------- ---------- ----------
Gross Margin....................................
Transportation..................................
Production gas sales............................
Other ..........................................
--------- --------- --------- --------- ---------- ---------- ----------
Total Net Revenues................................
--------- --------- --------- --------- ---------- ---------- ----------
Operating Expenses
Operation and maintenance.......................
Settlement of gas supply charges................
Depreciation and depletion .....................
Other taxes ....................................
--------- --------- --------- --------- ---------- ---------- ----------
Total Operating Expenses .........................
--------- --------- --------- --------- ---------- ---------- ----------
Operating Income (Loss) ..........................
--------- --------- --------- --------- ---------- ---------- ----------
Other Income (Deductions)
Interest income and other, net .................
Interest expense and related charges ...........
--------- --------- --------- --------- ---------- ---------- ----------
Total Other Income (Deductions) ..................
--------- --------- --------- --------- ---------- ---------- ----------
Income (Loss) from Continuing Operations
before Income Taxes.............................
Income Taxes .....................................
--------- --------- --------- --------- ---------- ---------- ----------
Income (Loss) from Continuing Operations..........
--------- --------- --------- --------- ---------- ---------- ----------
Discontinued Operations - net of taxes
(Loss) from operations..........................
Estimated (loss) on disposal....................
--------- --------- --------- --------- ---------- ---------- ----------
(Loss) from Discontinued Operations - net of taxes
--------- --------- --------- --------- ---------- ---------- ----------
Net Income (Loss) ................................
========= ========= ========= ========= ========== ========== ==========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 153
F-3B (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Group Capital Corporation and Subsidiaries
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CCC
TGT CTC CCC Combined Entries Consolidated
----------- ----------- ----------- ----------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Net Revenues
Energy sales ................................... * * * * * *
Less: Products purchased .......................
----------- ----------- ----------- ----------- ------------ ------------
Gross Margin ...................................
Transportation .................................
Production gas sales ...........................
Other ..........................................
----------- ----------- ----------- ----------- ------------ ------------
Total Net Revenues ...............................
----------- ----------- ----------- ----------- ------------ ------------
Operating Expenses
Operation and maintenance.......................
Settlement of gas supply charges................
Depreciation and depletion .....................
Other taxes ....................................
----------- ----------- ----------- ----------- ------------ ------------
Total Operating Expenses .........................
----------- ----------- ----------- ----------- ------------ ------------
Operating Income (Loss) ..........................
----------- ----------- ----------- ----------- ------------ ------------
Other Income (Deductions)
Interest income and other, net .................
Interest expense and related charges ...........
----------- ----------- ----------- ----------- ------------ ------------
Total Other Income (Deductions) ..................
----------- ----------- ----------- ----------- ------------ ------------
Income (Loss) from Continuing Operations
before Income Taxes.............................
Income Taxes .....................................
----------- ----------- ----------- ----------- ------------ ------------
Income (Loss) from Continuing Operations..........
----------- ----------- ----------- ----------- ------------ ------------
Discontinued Operations - net of taxes
(Loss) from operations..........................
Estimated (loss) on disposal....................
----------- ----------- ----------- ----------- ------------ ------------
(Loss) from Discontinued Operations - net of taxes
----------- ----------- ----------- ----------- ------------ ------------
Net Income (Loss) ................................
=========== =========== =========== =========== ============ ============
</TABLE>
<PAGE> 154
F-3C (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia LNG Corporation and Subsidiary
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CLG
CLNG CLG Combined Entries Consolidated
-------------- -------------- -------------- -------------- ---------------
<S> <C> <C> <C> <C> <C>
Net Revenues
Energy sales ......................... * * * * *
Less: Products purchased .............
-------------- -------------- -------------- -------------- ---------------
Gross Margin .........................
Transportation .......................
Production gas sales .................
Other.................................
-------------- -------------- -------------- -------------- ---------------
Total Net Revenues .....................
-------------- -------------- -------------- -------------- ---------------
Operating Expenses
Operation and maintenance.............
Settlement of gas supply charges......
Depreciation and depletion ...........
Other taxes ..........................
-------------- -------------- -------------- -------------- ---------------
Total Operating Expenses ...............
-------------- -------------- -------------- -------------- ---------------
Operating Income (Loss) ................
-------------- -------------- -------------- -------------- ---------------
Other Income (Deductions)
Interest income and other, net .......
Interest expense and related charges .
-------------- -------------- -------------- -------------- ---------------
Total Other Income (Deductions) ........
-------------- -------------- -------------- -------------- ---------------
Income (Loss) from Continuing Operations
before Income Taxes...................
Income Taxes ...........................
-------------- -------------- -------------- -------------- ---------------
Income (Loss) from Continuing Operations
-------------- -------------- -------------- -------------- ---------------
Discontinued Operations - net of taxes
(Loss) from operations................
Estimated (loss) on disposal..........
-------------- -------------- -------------- -------------- ---------------
(Loss) from Discontinued Operations.....
-------------- -------------- -------------- -------------- ---------------
Net Income (Loss) ......................
============== ============== ============== ============== ===============
</TABLE>
<PAGE> 155
F-3D (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Services Corporation and Subsidiaries
Consolidating Statement of Income
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
CEM CPM CRC CSP ECC
------------- ------------- ------------- ------------- --------------
<S> <C> <C> <C> <C> <C>
Net Revenues
Energy sales ................................... * * * * *
Less: Products purchased .......................
------------- ------------- ------------- ------------- --------------
Gross Margin ...................................
Transportation .................................
Production gas sales ...........................
Other...........................................
------------- ------------- ------------- ------------- --------------
Total Net Revenues ...............................
------------- ------------- ------------- ------------- --------------
Operating Expenses
Operation and maintenance.......................
Settlement of gas supply charges................
Depreciation and depletion .....................
Other taxes ....................................
------------- ------------- ------------- ------------- --------------
Total Operating Expenses .........................
------------- ------------- ------------- ------------- --------------
Operating Income (Loss) ..........................
------------- ------------- ------------- ------------- --------------
Other Income (Deductions)
Interest income and other, net .................
Interest expense and related charges ...........
------------- ------------- ------------- ------------- --------------
Total Other Income (Deductions) ..................
------------- ------------- ------------- ------------- --------------
Income (Loss) from Continuing Operations
before Income Taxes.............................
Income Taxes .....................................
------------- ------------- ------------- ------------- --------------
Income (Loss) from Continuing Operations..........
------------- ------------- ------------- ------------- --------------
Discontinued Operations - net of taxes
(Loss) from operations..........................
Estimated (loss) on disposal....................
------------- ------------- ------------- ------------- --------------
(Loss) from discontinued operations - net of taxes
------------- ------------- ------------- ------------- --------------
Net Income (Loss) ................................
============= ============= ============= ============= ==============
</TABLE>
<TABLE>
<CAPTION>
Consolidating CES
CES Combined Entries Consolidated
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Net Revenues
Energy sales ................................... * * * *
Less: Products purchased .......................
------------- ------------- ------------- -------------
Gross Margin ...................................
Transportation .................................
Production gas sales ...........................
Other...........................................
------------- ------------- ------------- -------------
Total Net Revenues ...............................
------------- ------------- ------------- -------------
Operating Expenses
Operation and maintenance.......................
Settlement of gas supply charges................
Depreciation and depletion .....................
Other taxes ....................................
------------- ------------- ------------- -------------
Total Operating Expenses .........................
------------- ------------- ------------- -------------
Operating Income (Loss) ..........................
------------- ------------- ------------- -------------
Other Income (Deductions)
Interest income and other, net .................
Interest expense and related charges ...........
------------- ------------- ------------- -------------
Total Other Income (Deductions) ..................
------------- ------------- ------------- -------------
Income (Loss) from Continuing Operations
before Income Taxes.............................
Income Taxes .....................................
------------- ------------- ------------- -------------
Income (Loss) from Continuing Operations..........
------------- ------------- ------------- -------------
Discontinued Operations - net of taxes
(Loss) from operations..........................
Estimated (loss) on disposal....................
------------- ------------- ------------- -------------
(Loss) from discontinued operations - net of taxes
------------- ------------- ------------- -------------
Net Income (Loss) ................................
============= ============= ============= =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 156
F-3E (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Network Services Corporation and Subsidiaries
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CNS
CMC EN CNS Combined Entries Consolidated
----------- ----------- ----------- ----------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Net Revenues
Energy sales ................................... * * * * * *
Less: Products purchased .......................
----------- ----------- ----------- ----------- ------------ ------------
Gross Margin ...................................
Transportation .................................
Production gas sales ...........................
Other ..........................................
----------- ----------- ----------- ----------- ------------ ------------
Total Net Revenues ...............................
----------- ----------- ----------- ----------- ------------ ------------
Operating Expenses
Operation and maintenance.......................
Settlement of gas supply charges................
Depreciation and depletion .....................
Other taxes ....................................
----------- ----------- ----------- ----------- ------------ ------------
Total Operating Expenses .........................
----------- ----------- ----------- ----------- ------------ ------------
Operating Income (Loss) ..........................
----------- ----------- ----------- ----------- ------------ ------------
Other Income (Deductions)
Interest income and other, net .................
Interest expense and related charges ...........
----------- ----------- ----------- ----------- ------------ ------------
Total Other Income (Deductions) ..................
----------- ----------- ----------- ----------- ------------ ------------
Income (Loss) from Continuing Operations
before Income Taxes.............................
Income Taxes .....................................
----------- ----------- ----------- ----------- ------------ ------------
Income (Loss) from Continuing Operations..........
----------- ----------- ----------- ----------- ------------ ------------
Discontinued Operations - net of taxes
(Loss) from operations..........................
Estimated (loss) on disposal....................
----------- ----------- ----------- ----------- ------------ ------------
(Loss) from Discontinued Operations - net of taxes
----------- ----------- ----------- ----------- ------------ ------------
Net Income (Loss) ................................
=========== =========== =========== =========== ============ ============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 157
F-3F (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Resources, Inc. and Subsidiaries
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
CNR HH CU AD CER
------------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Net Revenues
Energy sales.................................... * * * * *
Less: Products purchased........................
------------- ------------- ------------- ------------- -------------
Gross margin....................................
Transportation..................................
Production gas sales............................
Other...........................................
------------- ------------- ------------- ------------- --------------
Total Net Revenues................................
------------- ------------- ------------- ------------- --------------
Operating Expenses
Operation and maintenance.......................
Settlement of gas supply charges................
Depreciation and depletion .....................
Other taxes ....................................
------------- ------------- ------------- ------------- --------------
Total Operating Expenses .........................
------------- ------------- ------------- ------------- --------------
Operating Income (Loss) ..........................
------------- ------------- ------------- ------------- --------------
Other Income (Deductions)
Interest income and other, net .................
Interest expense and related charges ...........
------------- ------------- ------------- ------------- --------------
Total Other Income (Deductions) ..................
------------- ------------- ------------- ------------- --------------
Income (Loss) from Continuing Operations
before Income Taxes.............................
Income Taxes .....................................
------------- ------------- ------------- ------------- --------------
Income (Loss) from Continuing Operations..........
------------- ------------- ------------- ------------- --------------
Discontinued Operations - net of taxes
(Loss) from operations..........................
Estimated (loss) on disposal....................
------------- ------------- ------------- ------------- --------------
(Loss) from Discontinued Operations - net of taxes
------------- ------------- ------------- ------------- --------------
Net Income (Loss) ................................
============= ============= ============= ============= ==============
</TABLE>
<TABLE>
<CAPTION>
Consolidating CER
Combined Entries Consolidated
------------- ------------- -------------
<S> <C> <C> <C>
Net Revenues
Energy sales.................................... * * *
Less: Products purchased........................
------------- ------------- -------------
Gross margin....................................
Transportation..................................
Production gas sales............................
Other...........................................
------------- ------------- -------------
Total Net Revenues................................
------------- ------------- -------------
Operating Expenses
Operation and maintenance.......................
Settlement of gas supply charges................
Depreciation and depletion .....................
Other taxes ....................................
------------- ------------- -------------
Total Operating Expenses .........................
------------- ------------- -------------
Operating Income (Loss) ..........................
------------- ------------- -------------
Other Income (Deductions)
Interest income and other, net .................
Interest expense and related charges ...........
------------- ------------- -------------
Total Other Income (Deductions) ..................
------------- ------------- -------------
Income (Loss) from Continuing Operations
before Income Taxes.............................
Income Taxes .....................................
------------- ------------- -------------
Income (Loss) from Continuing Operations..........
------------- ------------- -------------
Discontinued Operations - net of taxes
(Loss) from operations..........................
Estimated (loss) on disposal....................
------------- ------------- -------------
(Loss) from Discontinued Operations - net of taxes
------------- ------------- -------------
Net Income (Loss) ................................
============= ============= =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 158
F-3G (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Pipeline Company and Subsidiary
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CPL
CDW CPL Combined Entries Consolidated
-------------- -------------- -------------- -------------- ---------------
<S> <C> <C> <C> <C> <C>
Net Revenues
Energy sales ......................... * * * * *
Less: Products purchased .............
-------------- -------------- -------------- -------------- ---------------
Gross Margin .........................
Transportation .......................
Production gas sales .................
Other ................................
-------------- -------------- -------------- -------------- ---------------
Total Net Revenues .....................
-------------- -------------- -------------- -------------- ---------------
Operating Expenses
Operation and maintenance.............
Settlement of gas supply charges......
Depreciation and depletion ...........
Other taxes ..........................
-------------- -------------- -------------- -------------- ---------------
Total Operating Expenses ...............
-------------- -------------- -------------- -------------- ---------------
Operating Income (Loss) ................
-------------- -------------- -------------- -------------- ---------------
Other Income (Deductions)
Interest income and other, net .......
Interest expense and related charges .
-------------- -------------- -------------- -------------- ---------------
Total Other Income (Deductions) ........
-------------- -------------- -------------- -------------- ---------------
Income (Loss) from Continuing Operations
before Income Taxes...................
Income Taxes ...........................
-------------- -------------- -------------- -------------- ---------------
Income (Loss) from Continuing Operations
-------------- -------------- -------------- -------------- ---------------
Discontinued Operations - net of taxes
(Loss) from operations................
Estimated (loss) on disposal..........
-------------- -------------- -------------- -------------- ---------------
(Loss) from Discontinued Operations -
net of taxes.........................
-------------- -------------- -------------- -------------- ---------------
Net Income (Loss) ......................
============== ============== ============== ============== ===============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 159
F-3H (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Finance Corporation and Subsidiary
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CFC
CAR CFC Combined Entries Consolidated
-------------- -------------- -------------- -------------- ---------------
<S> <C> <C> <C> <C> <C>
Net Revenues
Energy sales ......................... * * * * *
Less: Products purchased .............
-------------- -------------- -------------- -------------- ---------------
Gross Margin .........................
Transportation .......................
Production gas sales .................
Other.................................
-------------- -------------- -------------- -------------- ---------------
Total Net Revenues .....................
-------------- -------------- -------------- -------------- ---------------
Operating Expenses
Operation and maintenance.............
Settlement of gas supply charges......
Depreciation and depletion ...........
Other taxes ..........................
-------------- -------------- -------------- -------------- ---------------
Total Operating Expenses ...............
-------------- -------------- -------------- -------------- ---------------
Operating Income (Loss) ................
-------------- -------------- -------------- -------------- ---------------
Other Income (Deductions)
Interest income and other, net .......
Interest expense and related charges .
-------------- -------------- -------------- -------------- ---------------
Total Other Income (Deductions) ........
-------------- -------------- -------------- -------------- ---------------
Income (Loss) from Continuing Operations
before Income Taxes...................
Income Taxes ...........................
-------------- -------------- -------------- -------------- ---------------
Income (Loss) from Continuing Operations
-------------- -------------- -------------- -------------- ---------------
Discontinued Operations - net of taxes
(Loss) from operations................
Estimated (loss) on disposal..........
-------------- -------------- -------------- -------------- ---------------
(Loss) from Discontinued Operations -
net of taxes........
-------------- -------------- -------------- -------------- ---------------
Net Income (Loss) ......................
============== ============== ============== ============== ===============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 160
F-3I (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Propane Corporation and Subsidiaries
Consolidating Statement of Income
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CPC
CPC PET CPLP CPH Combined Entries Consolidated
------ ------ ------ ------ -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Net Revenues
Energy sales * * * * * * *
Less: Products purchased
------ ------ ------ ------ -------- ------------- ------------
Gross Margin
Transportation
Production gas sales
Other
------ ------ ------ ------ -------- ------------- ------------
Total Net Revenues
------ ------ ------ ------ -------- ------------- ------------
Operating Expenses
Operation and maintenance
Settlement of gas supply charges
Depreciation and depletion
Other taxes
------ ------ ------ ------ -------- ------------- ------------
Total Operating Expenses
------ ------ ------ ------ -------- ------------- ------------
Operating Income (Loss)
------ ------ ------ ------ -------- ------------- ------------
Other Income (Deductions)
Interest income and other, net
Interest expense and related charges
------ ------ ------ ------ -------- ------------- ------------
Total Other Income (Deductions)
------ ------ ------ ------ -------- ------------- ------------
Income (Loss) from Continuing Operations
before Income Taxes
Income Taxes
------ ------ ------ ------ -------- ------------- ------------
Income (Loss) from Discontinued Operations
------ ------ ------ ------ -------- ------------- ------------
Discontinued Operations - net of taxes
(Loss) from operations
Estimated (loss) on disposal
------ ------ ------ ------ -------- ------------- ------------
(Loss) from Discontinued Operations - net of taxes
------ ------ ------ ------ -------- ------------- ------------
Net Income (Loss)
====== ====== ====== ====== ======== ============= ============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 161
F-4 (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Income Entries
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
Total Transactions Equity Adjustments
-------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Net Revenues
Energy sales * * * *
Less: Products purchased
-------- ------------ ----------- -------------
Gross Margin
Transportation
Production gas sales
Other
-------- ------------ ----------- -------------
Total Net Revenues
-------- ------------ ----------- -------------
Operating Expenses
Operation and maintenance
Settlement of gas supply charges
Depreciation and depletion
Other taxes
-------- ------------ ----------- -------------
Total Operating Expenses
-------- ------------ ----------- -------------
Operating Income (Loss)
-------- ------------ ----------- -------------
Other Income (Deductions)
Interest income and other, net
Interest expense and related charges
-------- ------------ ----------- -------------
Total Other Income (Deductions)
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
before Income Taxes
Income Taxes
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
-------- ------------ ----------- -------------
Discontinued Operations - net of taxes
(Loss) from operations
Estimated (loss) on disposal
-------- ------------ ----------- -------------
(Loss) from Discontinued Operations - net of taxes
-------- ------------ ----------- -------------
Net Income (Loss)
======== ============ =========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 162
F-4A (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Income Entries
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
Total Transactions Equity Adjustments
-------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Net Revenues
Energy sales * * * *
Less: Products purchased
-------- ------------ ----------- -------------
Gross Margin
Transportation
Production gas sales
Other
-------- ------------ ----------- -------------
Total Net Revenues
-------- ------------ ----------- -------------
Operating Expenses
Operation and maintenance
Settlement of gas supply charges
Depreciation and depletion
Other taxes
-------- ------------ ----------- -------------
Total Operating Expenses
-------- ------------ ----------- -------------
Operating Income (Loss)
-------- ------------ ----------- -------------
Other Income (Deductions)
Interest income and other, net
Interest expense and related charges
-------- ------------ ----------- -------------
Total Other Income (Deductions)
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
before Income Taxes
Income Taxes
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
-------- ------------ ----------- -------------
Discontinued Operations - net of taxes
(Loss) from operations
Estimated (loss) on disposal
-------- ------------ ----------- -------------
(Loss) from Discontinued Operations - net of taxes
-------- ------------ ----------- -------------
Net Income (Loss)
======== ============ =========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 163
F-4B (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Group Capital Corporation and Subsidiaries
Consolidating Statement of Income Entries
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
Total Transactions Equity Adjustments
-------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Net Revenues
Energy sales * * * *
Less: Products purchased
-------- ------------ ----------- -------------
Gross Margin
Transportation
Production gas sales
Other
-------- ------------ ----------- -------------
Total Net Revenues
-------- ------------ ----------- -------------
Operating Expenses
Operation and maintenance
Settlement of gas supply charges
Depreciation and depletion
Other taxes
-------- ------------ ----------- -------------
Total Operating Expenses
-------- ------------ ----------- -------------
Operating Income (Loss)
-------- ------------ ----------- -------------
Other Income (Deductions)
Interest income and other, net
Interest expense and related charges
-------- ------------ ----------- -------------
Total Other Income (Deductions)
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations before
before Income Taxes
Income Taxes
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
-------- ------------ ----------- -------------
Discontinued Operations - net of taxes
(Loss) from operations
Estimated (loss) on disposal
-------- ------------ ----------- -------------
(Loss) from Discontinued Operations - net of taxes
-------- ------------ ----------- -------------
Net Income (Loss)
======== ============ =========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 164
F-4C (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia LNG Corporation and Subsidiary
Consolidating Statement of Income Entries
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
Total Transactions Equity Adjustments
-------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Net Revenues
Energy sales * * * *
Less: Products purchased
-------- ------------ ----------- -------------
Gross Margin
Transportation
Production gas sales
Other
-------- ------------ ----------- -------------
Total Net Revenues
-------- ------------ ----------- -------------
Operating Expenses
Operation and maintenance
Settlement of gas supply charges
Depreciation and depletion
Other taxes
-------- ------------ ----------- -------------
Total Operating Expenses
-------- ------------ ----------- -------------
Operating Income (Loss)
-------- ------------ ----------- -------------
Other Income (Deductions)
Interest income and other, net
Interest expense and related charges
-------- ------------ ----------- -------------
Total Other Income (Deductions)
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
before Income Taxes
Income Taxes
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
-------- ------------ ----------- -------------
Discontinued Operations - net of taxes
(Loss) from operations
Estimated (loss) on disposal
-------- ------------ ----------- -------------
(Loss) from Discontinued Operations
-------- ------------ ----------- -------------
Net Income (Loss)
======== ============ =========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 165
F-4D (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Services Corporation and Subsidiaries
Consolidating Statement of Income Entries
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
Total Transactions Equity Adjustments
-------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Net Revenues
Energy sales * * * *
Less: Products purchased
-------- ------------ ----------- -------------
Gross Margin
Transportation
Production gas sales
Other
-------- ------------ ----------- -------------
Total Net Revenues
-------- ------------ ----------- -------------
Operating Expenses
Operation and maintenance
Settlement of gas supply charges
Depreciation and depletion
Other taxes
-------- ------------ ----------- -------------
Total Operating Expenses
-------- ------------ ----------- -------------
Operating Income (Loss)
-------- ------------ ----------- -------------
Other Income (Deductions)
Interest income and other, net
Interest expense and related charges
-------- ------------ ----------- -------------
Total Other Income (Deductions)
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
before Income Taxes
Income Taxes
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
-------- ------------ ----------- -------------
Discontinued Operations - net of taxes
(Loss) from operations
Estimated (loss) on disposal
-------- ------------ ----------- -------------
(Loss) from Discontinued Operations - net of taxes
-------- ------------ ----------- -------------
Net Income (Loss)
======== ============ =========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 166
F-4E (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Network Services Corporation and
Subsidiaries
Consolidating Statement of Income Entries
Year Ended December 31, 1999
(Not Covered by Report of Independent Public
Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
Total Transactions Equity Adjustments
-------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Net Revenues
Energy sales * * * *
Less: Products purchased
-------- ------------ ----------- -------------
Gross Margin
Transportation
Production gas sales
Other
-------- ------------ ----------- -------------
Total Net Revenues
-------- ------------ ----------- -------------
Operating Expenses
Operation and maintenance
Settlement of gas supply charges
Depreciation and depletion
Other taxes
-------- ------------ ----------- -------------
Total Operating Expenses
-------- ------------ ----------- -------------
Operating Income (Loss)
-------- ------------ ----------- -------------
Other Income (Deductions)
Interest income and other, net
Interest expense and related charges
-------- ------------ ----------- -------------
Total Other Income (Deductions)
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
before Income Taxes
Income Taxes
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
-------- ------------ ----------- -------------
Discontinued Operations - net of taxes
(Loss) from operations
Estimated (loss) on disposal
-------- ------------ ----------- -------------
(Loss) from Discontinued Operations - net of taxes
-------- ------------ ----------- -------------
Net Income (Loss)
======== ============ =========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 167
F-4F (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Resources, Inc. and Subsidiaries
Consolidating Statement of Income Entries
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
Total Transactions Equity Adjustments
-------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Net Revenues
Energy sales * * * *
Less: Products purchased
-------- ------------ ----------- -------------
Gross margin
Transportation
Production gas sales
Other
-------- ------------ ----------- -------------
Total Net Revenues
-------- ------------ ----------- -------------
Operating Expenses
Operation and maintenance
Settlement of gas supply charges
Depreciation and depletion
Other taxes
-------- ------------ ----------- -------------
Total Operating Expenses
-------- ------------ ----------- -------------
Operating Income (Loss)
-------- ------------ ----------- -------------
Other Income (Deductions)
Interest income and other, net
Interest expense and related charges
-------- ------------ ----------- -------------
Total Other Income (Deductions)
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
before Income Taxes
Income Taxes
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
-------- ------------ ----------- -------------
Discontinued Operations - net of taxes
(Loss) from operations
Estimated (loss) on disposal
-------- ------------ ----------- -------------
(Loss) from Discontinued Operations - net of taxes
-------- ------------ ----------- -------------
Net Income (Loss)
======== ============ =========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 168
F-4G (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Pipeline Company and Subsidiary
Consolidating Statement of Income Entries
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
Total Transactions Equity Adjustments
-------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Net Revenues
Energy sales * * * *
Less: Products purchased
-------- ------------ ----------- -------------
Gross Margin
Transportation
Production gas sales
Other
-------- ------------ ----------- -------------
Total Net Revenues
-------- ------------ ----------- -------------
Operating Expenses
Operation and maintenance
Settlement of gas supply charges
Depreciation and depletion
Other taxes
-------- ------------ ----------- -------------
Total Operating Expenses
-------- ------------ ----------- -------------
Operating Income (Loss)
-------- ------------ ----------- -------------
Other Income (Deductions)
Interest income and other, net
Interest expense and related charges
-------- ------------ ----------- -------------
Total Other Income (Deductions)
Income (Loss) from Continuing Operations
before Income Taxes
Income Taxes
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
-------- ------------ ----------- -------------
Discontinued Operations - net of taxes
(Loss) from operations
Estimated (loss) on disposal
-------- ------------ ----------- -------------
(Loss) from Discontinued Operations - net of taxes
-------- ------------ ----------- -------------
Net Income (Loss)
======== ============ =========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 169
F-4H (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Finance Corporation and Subsidiary
Consolidating Statement of Income Entries
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
Total Transactions Equity Adjustments
-------- ------------ ----------- -------------
<S> <C> <C> <C> <C>
Net Revenues
Energy sales * * * *
Less: Products purchased
-------- ------------ ----------- -------------
Gross Margin
Transportation
Production gas sales
Other
-------- ------------ ----------- -------------
Total Net Revenues
-------- ------------ ----------- -------------
Operating Expenses
Operation and maintenance
Settlement of gas supply charges
Depreciation and depletion
Other taxes
-------- ------------ ----------- -------------
Total Operating Expenses
-------- ------------ ----------- -------------
Operating Income (Loss)
-------- ------------ ----------- -------------
Other Income (Deductions)
Interest income and other, net
Interest expense and related charges
-------- ------------ ----------- -------------
Total Other Income (Deductions)
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
before Income Taxes
Income Taxes
-------- ------------ ----------- -------------
Income (Loss) from Continuing Operations
-------- ------------ ----------- -------------
Discontinued Operations - net of taxes
(Loss) from operations
Estimated (loss) on disposal
-------- ------------ ----------- -------------
(Loss) from Discontinued Operations - net of taxes
-------- ------------ ----------- -------------
Net Income (Loss)
======== ============ =========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 170
F-4I (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Propane Corporation and Subsidiaries
Consolidating Statement of Income Entries
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Entry No. 1 Entry No. 2
Eliminate Eliminate Entry No. 3
Intercompany Subsidiary Consolidating
Total Transactions Equity Adjustments
----- ------------ ------ -----------
<S> <C> <C> <C> <C>
Net Revenues
Energy sales ..................................... * * * *
Less: Products purchased .........................
------------------ ------------ ------------- ------------
Gross Margin .....................................
Transportation ...................................
Production gas sales .............................
Other ............................................
------------------ ------------ ------------- ------------
Total Net Revenues .................................
------------------ ------------ ------------- ------------
Operating Expenses
Operation and maintenance ........................
Settlement of gas supply charges .................
Depreciation and depletion .......................
Other taxes ......................................
------------------ ------------ ------------- ------------
Total Operating Expenses ...........................
------------------ ------------ ------------- ------------
Operating Income (Loss) ............................
------------------ ------------ ------------- ------------
Other Income (Deductions)
Interest income and other, net ...................
Interest expense and related charges .............
------------------ ------------ ------------- ------------
Total Other Income (Deductions) ....................
------------------ ------------ ------------- ------------
Incme (Loss) from Continuing Operations
before Income Taxes ..............................
Income Taxes .......................................
------------------ ------------ ------------- ------------
Income from Continuing Operations ..................
------------------ ------------ ------------- ------------
Discontinued Operations - net of taxes
(Loss) from operations ...........................
Estimated (loss) on disposal .....................
------------------ ------------ ------------- ------------
(Loss) from Discontinued Operations - net of taxes .
------------------ ------------ ------------- ------------
Net Income (Loss) ..................................
================== ============ ============= ============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 171
F-5 (1 of 5)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-5 F-5 F-5 F-5 Consolidating
Page 2 Page 3 Page 4 Page 5 Combined Entries Consolidated
------ ------ ------ ------ -------- ------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year ............ * * * * * * 835,119
Common stock issued -
Subsidiaries ......................... -
Long-term incentive plan ............. 2
Public offering ...................... -
Reduction in par value ............... (834,284)
Equity for debt recapitalization ..... -
------- ------- ------ ------- --------- --------------- -------------
Balance at end of year .................. 837
------- ------- ------ ------- --------- --------------- -------------
Additional Paid in Capital
Balance at beginning of year ............ 761,804
Common stock issued -
Subsidiaries ......................... -
Long-term incentive plan ............. 15,515
Public offering ...................... -
Reduction in par value - APIC ........ 834,284
Recapitalization -
Capital contributions ................ -
------- ------- ------ ------- --------- --------------- -------------
Balance at end of year .................. 1,611,603
------- ------- ------ ------- --------- --------------- -------------
Retained Earnings
Balance at beginning of year ............ 409,544
Net income (loss) ...................... 249,166
Cash dividends -
CG ................................... 71,846
Subsidiaries (to CG) ................. -
Other .................................. -
------- ------- ------ ------- --------- --------------- -------------
Balance at end of year .................. 586,864
------- ------- ------ ------- --------- --------------- -------------
Reacquired Capital Stock ................. (134,975)
Accumulated Foreign Currency
Translation Adjustment
Balance at beginning of year ............ (281)
Translation adjustment ................. 589
------- ------- ------ ------- --------- --------------- -------------
Balance at end of year .................. 308
------- ------- ------ ------- --------- --------------- -------------
Unearned Employee Compensation
Balance at beginning of year ............ (876)
Adjustment ............................. 292
------- ------- ------ ------- --------- --------------- -------------
Balance at end of year .................. (584)
------- ------- ------ ------- --------- --------------- -------------
TOTAL COMMON STOCK EQUITY ................ 2,064,053
======= ======= ====== ======= ========= =============== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 172
F-5 (2 of 5)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-5 Page 2
CER (a) TCO CGT CLG (a) CKY Total
------- --- --- ------- --- -----
<S> <C> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year ................. * 48 20 * * *
Common stock issued -
Subsidiaries .............................. - -
Long-term incentive plan .................. - -
Public offering ........................... - -
Reduction in par value .................... - -
Equity for debt recapitalization .......... - -
-------- ---------- --------- ------- ------- ----------
Balance at end of year ....................... 48 20
-------- ---------- --------- ------- ------- ----------
Additional Paid in Capital
Balance at beginning of year ................. 1,512,025 82,429
Common stock issued -
Subsidiaries .............................. - -
Long-term incentive plan .................. - -
Public offering ........................... - -
Reduction in par value - APIC ............. - -
Recapitalization -
Capital contributions ..................... - -
-------- ---------- --------- ------- ------- ----------
Balance at end of year ....................... 1,512,025 82,429
-------- ---------- --------- ------- ------- ----------
Retained Earnings
Balance at beginning of year ................. (516,275) 40,003
Net income .................................. 184,895 37,614
Cash dividends -
CG ........................................ - -
Subsidiaries (to CG) ...................... 161,000 46,200
Other ....................................... - -
-------- ---------- --------- ------- ------- ----------
Balance at end of year ....................... (492,380) 31,417
-------- ---------- --------- ------- ------- ----------
Reacquired Capital Stock ...................... - -
Accumulated Foreign Currency
Translation Adjustment
Balance at beginning of year ................. - -
Translation Adjustment ...................... - -
-------- ---------- --------- ------- ------- ----------
Balance at end of year ....................... - -
-------- ---------- --------- ------- ------- ----------
Unearned Employee Compensation
Balance at beginning of year ................. - -
Adjustment .................................. - -
-------- ---------- --------- ------- ------- ----------
Balance at end of year ....................... - -
-------- ---------- --------- ------- ------- ----------
TOTAL COMMON STOCK EQUITY ..................... 1,019,693 113,866
======== ========== ========= ======= ======= ==========
</TABLE>
(a) CER includes four subsidiaries and CLG includes one subsidiary as noted in
Item 1. Consolidating financial statements of CER and CLG are presented herewith
in Item 10, Exhibits F-1F through F-6F and F-1C through F-6C, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 173
F-5 (3 of 5)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-5 Page 3
COH CMD CPA CGV CG Total
--- --- --- --- -- -----
<S> <C> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year .............. 119,240 72 85,128 65,305 * *
Common stock issued -
Subsidiaries ........................... - - - -
Long-term incentive plan ............... - - - -
Public offering ........................ - - - -
Reduction in par value ................. - - - -
Equity for debt recapitalization ....... - - (40,000) -
--------- -------- --------- --------- -------- ----------
Balance at end of year .................... 119,240 72 45,128 65,305
--------- -------- --------- --------- -------- ----------
Additional Paid in Capital
Balance at beginning of year .............. - 10,020 - 2,969
Common stock issued -
Subsidiaries ........................... - - - -
Long-term incentive plan ............... - - - -
Public offering ........................ - - - -
Reduction in par value - APIC .......... - - - -
Recapitalization -
Capital contributions .................. - - - -
--------- -------- --------- --------- -------- ----------
Balance at end of year .................... - 10,020 - 2,969
--------- -------- --------- --------- -------- ----------
Retained Earnings
Balance at beginning of year .............. 316,404 13,202 133,671 86,250
Net income ............................... 75,194 3,794 33,917 14,681
Cash dividends -
CG ..................................... - - - -
Subsidiaries (to CG) ................... 73,690 2,964 31,497 -
Other .................................... - - - -
--------- -------- --------- --------- -------- ----------
Balance at end of year .................... 317,908 14,032 136,091 100,931
--------- -------- --------- --------- -------- ----------
Reacquired Capital Stock ................... - - - -
Accumulated Foreign Currency
Translation Adjustment
Balance at beginning of year .............. - - - -
Translation Adjustment ................... - - - -
--------- -------- --------- --------- -------- ----------
Balance at end of year .................... - - - -
--------- -------- --------- --------- -------- ----------
Unearned Employee Compensation
Balance at beginning of year .............. - - - -
Adjustment ............................... - - - -
--------- -------- --------- --------- -------- ----------
Balance at end of year .................... - - - -
--------- -------- --------- --------- -------- ----------
TOTAL COMMON STOCK EQUITY .................. 437,148 24,124 181,219 169,205
========= ======== ========= ========= ======== ==========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 174
F-5 (4 of 5)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-5 Page 4
CS CIC CES (a) CPC (a) CEC (a) Total
-- --- ------- ------- ------- -----
<S> <C> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year .................... 300 * * * * *
Common stock issued -
Subsidiaries ................................. -
Long-term incentive plan ..................... -
Public offering .............................. -
Reduction in par value ....................... -
Equity for debt recapitalization ............. -
------ -------- ------- -------- -------- -----------
Balance at end of year .......................... 300
------ -------- ------- -------- -------- -----------
Additional Paid in Capital
Balance at beginning of year .................... -
Common stock issued -
Subsidiaries ................................. -
Long-term incentive plan ..................... -
Public offering .............................. -
Reduction in par value - APIC ................ -
Recapitalization -
Capital contributions ........................ -
------ -------- ------- -------- -------- -----------
Balance at end of year .......................... -
------ -------- ------- -------- -------- -----------
Retained Earnings
Balance at beginning of year .................... 186
Net income (loss) .............................. 1,119
Cash dividends -
CG ........................................... -
Subsidiaries (to CG) ......................... 1,305
Other .......................................... -
------ -------- ------- -------- -------- -----------
Balance at end of year .......................... -
------ -------- ------- -------- -------- -----------
Reacquired Capital Stock ......................... -
Accumulated Foreign Currency
Translation Adjustment
Balance at beginning of year .................... -
Translation Adjustment ......................... -
------ -------- ------- -------- -------- -----------
Balance at end of year .......................... -
------ -------- ------- -------- -------- -----------
Unearned Employee Compensation
Balance at beginning of year .................... -
Adjustment ..................................... -
------ -------- ------- -------- -------- -----------
Balance at end of year .......................... -
------ -------- ------- -------- -------- -----------
TOTAL COMMON STOCK EQUITY ........................ 300
====== ======== ======= ======== ======== ===========
</TABLE>
(a) CES includes five subsidiaries, CPC includes three subsidiaries and CEC
includes sixteen subsidiaries as noted in Item 10. Consolidating financial
statements of CES, CPC and CEC are presented herewith in Item 10, Exhibits F-1D
through F-6D, F-1I through F-6I and F-1A through F-6A, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 175
F-5 (5 of 5)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-5 Page 5
CCC (a) CAT CNS (a) CPL (a) CFC (a) Total
------- --- ------- ------- ------- -----
<S> <C> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year ...................... * * * * * *
Common stock issued -
Subsidiaries ...................................
Long-term incentive plan .......................
Public offering ................................
Reduction in par value .........................
Equity for debt recapitalization ...............
-------- ------- -------- -------- ------- ----------
Balance at end of year ............................
-------- ------- -------- -------- ------- ----------
Additional Paid in Capital
Balance at beginning of year ......................
Common stock issued -
Subsidiaries ...................................
Long-term incentive plan .......................
Public offering ................................
Reductin in par value - APIC ...................
Recapitalization -
Capital contributions ..........................
-------- ------- -------- -------- ------- ----------
Balance at end of year ............................
-------- ------- -------- -------- ------- ----------
Retained Earnings
Balance at beginning of year ......................
Net income .......................................
Cash dividends -
CG .............................................
Subsidiaries (to CG) ...........................
Other ............................................
-------- ------- -------- -------- ------- ----------
Balance at end of year ............................
-------- ------- -------- -------- ------- ----------
Reacquired Capital Stock ...........................
Accumulated Foreign Currency
Translation Adjustment
Balance at beginning of year ......................
Translation Adjustment ...........................
-------- ------- -------- -------- ------- ----------
Balance at end of year ............................
-------- ------- -------- -------- ------- ----------
Unearned Employee Compensation
Balance at beginning of year ......................
Adjustment .......................................
-------- ------- -------- -------- ------- ----------
Balance at end of year ............................
-------- ------- -------- -------- ------- ----------
TOTAL COMMON STOCK EQUITY ..........................
======== ======= ======== ======== ======= ==========
</TABLE>
(a) CCC and CNS include two subsidiaries, CPL and CFC include one subsidiary as
noted in Item 1. Consolidating financial statements of CCC, CNS, CPL and CFC are
presented herewith in Item 10, Exhibits F-1B through F-6B, F-1E through F-6E,
F-1G through F-6G and F-1H through F-6H, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 176
F-5A (1 of 4)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-5A F-5A F-5A Consolidating CEC
Page 2 Page 3 Page 4 Combined Entries Consolidated
------ ------ ------ -------- ------- ------------
<S> <C> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year ..................... * * * * * *
Common stock issued -
Subsidiaries ..................................
Long-term incentive plan ......................
Public offering ...............................
Reduction in par value ........................
Equity for debt recapitalization ..............
------- -------- ------- -------- ------------- ------------
Balance at end of year ...........................
------- -------- ------- -------- ------------- ------------
Additional Paid in Capital
Balance at beginning of year .....................
Common stock issued -
Subsidiaries ..................................
Long-term incentive plan ......................
Public offering ...............................
Reduction in par value - APIC .................
Recapitalization -
Capital contributions .........................
------- -------- ------- -------- ------------- ------------
Balance at end of year ...........................
------- -------- ------- -------- ------------- ------------
Retained Earnings
Balance at beginning of year .....................
Net income (loss) ...............................
Cash dividends -
CG ............................................
Subsidiaries (to CG) ..........................
Other ...........................................
------- -------- ------- -------- ------------- ------------
Balance at end of year ...........................
------- -------- ------- -------- ------------- ------------
Reacquired Capital Stock ..........................
Accumulated Foreign Currency
Translation Adjustment ............................
Balance at beginning of year .....................
Translation adjustment ..........................
------- -------- ------- -------- ------------- ------------
Balance at end of year ...........................
------- -------- ------- -------- ------------- ------------
Unearned Employee Compensation
Balance at beginning of year .....................
Adjustment ......................................
------- -------- ------- -------- ------------- ------------
Balance at end of year ...........................
------- -------- ------- -------- ------------- ------------
TOTAL COMMON STOCK EQUITY .........................
======= ======== ======= ======== ============= ============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 177
F-5A (2 of 4)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-5A Page 2
CBG CBL CCL CEC CEH Total
--- --- --- --- --- -----
<S> <C> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year ...................... * * * * * *
Common stock issued -
Subsidiaries ...................................
Long-term incentive plan .......................
Public offering ................................
Reduction in par value .........................
Equity for debt recapitalization ...............
------- -------- -------- -------- -------- ---------
Balance at end of year ............................
------- -------- -------- -------- -------- ---------
Additional Paid in Capital
Balance at beginning of year ......................
Common stock issued -
Subsidiaries ...................................
Long-term incentive plan .......................
Public offering ................................
Reduction in par value - APIC ..................
Recapitalization -
Capital contributions ..........................
------- -------- -------- -------- -------- ---------
Balance at end of year ............................
------- -------- -------- -------- -------- ---------
Retained Earnings
Balance at beginning of year ......................
Net Income .......................................
Cash dividends -
CG .............................................
Subsidiaries (to CG) ...........................
Other ............................................
------- -------- -------- -------- -------- ---------
Balance at end of year ............................
------- -------- -------- -------- -------- ---------
Reacquired Capital Stock ...........................
Accumulated Foreign Currency
Translation Adjustment .............................
Balance at beginning of year ......................
Translation Adjustment ...........................
------- -------- -------- -------- -------- ---------
Balance at end of year ............................
------- -------- -------- -------- -------- ---------
Unearned Employee Compensation
Balance at beginning of year ......................
Adjustment .......................................
------- -------- -------- -------- -------- ---------
Balance at end of year ............................
------- -------- -------- -------- -------- ---------
TOTAL COMMON STOCK EQUITY ..........................
======= ======== ======== ======== ======== =========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 178
F-5A (3 of 4)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-5A Page 3
CEK CEL CGG CGP CEPL CGR Total
--- --- --- --- ---- --- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year ........................ * * * * * * *
Common stock issued -
Subsidiaries .....................................
Long-term incentive plan .........................
Public offering ..................................
Reduction in par value ...........................
Equity for debt recapitalization .................
------- ------- ------ ----- ------- ------ --------
Balance at end of year ..............................
------- ------- ------ ----- ------- ------ --------
Additional Paid in Capital
Balance at beginning of year ........................
Common stock issued -
Subsidiaries .....................................
Long-term incentive plan .........................
Public offering ..................................
Reduction in par value - APIC ....................
Recapitalization -
Capital contributions ............................
------- ------- ------ ----- ------- ------ --------
Balance at end of year ..............................
------- ------- ------ ----- ------- ------ --------
Retained Earnings
Balance at beginning of year ........................
Net Income .........................................
Cash dividends -
CG ...............................................
Subsidiaries (to CG) .............................
Other ..............................................
------- ------- ------ ----- ------- ------ --------
Balance at end of year ..............................
------- ------- ------ ----- ------- ------ --------
Reacquired Capital Stock .............................
Accumulated Foreign Currency
Translation Adjustment ...............................
Balance at beginning of year ........................
Translation adjustment .............................
------- ------- ------ ----- ------- ------ --------
Balance at end of year ..............................
------- ------- ------ ----- ------- ------ --------
Unearned Employee Compensation
Balance at beginning of year ........................
Adjustment .........................................
------- ------- ------ ----- ------- ------ --------
Balance at end of year ..............................
------- ------- ------ ----- ------- ------ --------
TOTAL COMMON STOCK EQUITY ............................
======= ======= ====== ===== ======= ====== ========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 179
F-5A (4 of 4)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-5A Page 4
CHC CLP CRL CVG CVL CLM Total
--- --- --- --- --- --- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year ........................ * * * * * * *
Common stock issued -
Subsidiaries .....................................
Long-term incentive plan .........................
Public offering ..................................
Reduction in par value ...........................
Equity for debt recapitalization .................
------- ------- ------ ----- ------- ------ --------
Balance at end of year ..............................
------- ------- ------ ----- ------- ------ --------
Additional Paid in Capital
Balance at beginning of year ........................
Common stock issued -
Subsidiaries .....................................
Long-term incentive plan .........................
Public offering ..................................
Reduction in par value - APIC ....................
Recapitalization -
Capital contributions ............................
------- ------- ------ ----- ------- ------ --------
Balance at end of year ..............................
------- ------- ------ ----- ------- ------ --------
Retained Earnings
Balance at beginning of year ........................
Net Income .........................................
Cash dividends -
CG ...............................................
Subsidiaries (to CG) .............................
Other ..............................................
------- ------- ------ ----- ------- ------ --------
Balance at end of year ..............................
------- ------- ------ ----- ------- ------ --------
Reacquired Capital Stock .............................
Accumulated Foreign Currency
Translation Adjustment ...............................
Balance at beginning of year ........................
Translation adjustment .............................
------- ------- ------ ----- ------- ------ --------
Balance at end of year ..............................
------- ------- ------ ----- ------- ------ --------
Unearned Employee Compensation
Balance at beginning of year ........................
Adjustment .........................................
------- ------- ------ ----- ------- ------ --------
Balance at end of year ..............................
------- ------- ------ ----- ------- ------ --------
TOTAL COMMON STOCK EQUITY ............................
======= ======= ====== ===== ======= ====== ========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 180
F-5B (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Group Capital Corporation and Subsidiaries
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CCC
TGT CTC CCC Combined Entries Consolidated
--- --- --- -------- ------- ------------
<S> <C> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year .................. * * * * * *
Common stock issued -
Subsidiaries ................................
Long-term incentive plan ....................
Public offering .............................
Reduction in par value ......................
Equity for debt recapitalization ............
--------- -------- -------- ---------- -------- --------------
Balance at end of year ........................
--------- -------- -------- ---------- -------- --------------
Additional Paid in Capital
Balance at beginning of year ..................
Common stock issued -
Subsidiaries ................................
Long-term incentive plan ....................
Public offering .............................
Reduction in par value - APIC ...............
Recapitalization -
Capital contributions .......................
--------- -------- -------- ---------- -------- --------------
Balance at end of year ........................
--------- -------- -------- ---------- -------- --------------
Retained Earnings
Balance at beginning of year ..................
Net income (loss) .............................
Cash dividends -
CG ..........................................
Subsidiaries (to CG) ........................
Other .........................................
--------- -------- -------- ---------- -------- --------------
Balance at end of year ........................
--------- -------- -------- ---------- -------- --------------
Reacquired Capital Stock ........................
Accumulated Foreign Currency
Translation Adjustment ..........................
Balance at beginning of year ..................
Translation adjustment ........................
--------- -------- -------- ---------- -------- --------------
Balance at end of year ........................
--------- -------- -------- ---------- -------- --------------
Unearned Employee Compensation
Balance at beginning of year ..................
Adjustment ....................................
--------- -------- -------- ---------- -------- --------------
Balance at end of year ........................
--------- -------- -------- ---------- -------- --------------
TOTAL COMMON STOCK EQUITY .......................
========= ======== ======== ========== ======== ==============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 181
F-5C (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia LNG Corporation and Subsidiary
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CLG
CLNG CLG Combined Entries Consolidated
---- --- -------- ------- ------------
<S> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year ........................ * * * * *
Common stock issued -
Subsidiaries ......................................
Long-term incentive plan ..........................
Public offering ...................................
Reduction in par value ............................
Equity for debt recapitalization ..................
-------- -------- ----------- ------- -------------
Balance at end of year ..............................
-------- -------- ----------- ------- -------------
Additional Paid in Capital
Common stock issued -
Subsidiaries ......................................
Long-term incentive plan ..........................
Public offering ...................................
Reduction in par value - APIC .....................
Recapitalization -
Capital contributions .............................
-------- -------- ----------- ------- -------------
Balance at end of year ..............................
-------- -------- ----------- ------- -------------
Retained Earnings
Balance at beginning of year ........................
Net income (loss) ...................................
Cash dividends -
CG ................................................
Subsidiaries (to CG) ..............................
Other ...............................................
-------- -------- ----------- ------- -------------
Balance at end of year ..............................
-------- -------- ----------- ------- -------------
Reacquired Capital Stock ..............................
Accumulated Foreign Currency
Translation Adjustment ................................
Balance at beginning of year ........................
Translation adjustment ..............................
-------- -------- ----------- ------- -------------
Balance at end of year ..............................
-------- -------- ----------- ------- -------------
Unearned Employee Compensation
Balance at beginning of year ........................
Adjustment ..........................................
-------- -------- ----------- ------- -------------
Balance at end of year ..............................
-------- -------- ----------- ------- -------------
TOTAL COMMON STOCK EQUITY .............................
======== ======== =========== ======= =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 182
F-5D (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Services Corporation and Subsidiaries
Consolidating Statement of Common Stock Equity as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CES
CEM CPM CRC CSP ECC CES Combined Entries Consolidated
--- --- --- --- --- --- -------- ------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year ............ * * * * * * * * *
Common stock issued -
Subsidiaries .........................
Long-term incentive plan .............
Public offering ......................
Reduction in par value ...............
Equity for debt recapitalization .....
----- ----- ----- ------- ------ ------ -------- -------- ------------
Balance at end of year ..................
----- ----- ----- ------- ------ ------ -------- -------- ------------
Additional Paid in Capital
Balance at beginning of year ............
Common stock issued -
Subsidiaries .........................
Long-term incentive plan .............
Public offering ......................
Reduction in par value - APIC ........
Recapitalization -
Capital contributions ................
----- ----- ----- ------- ------ ------ -------- -------- ------------
Balance at end of year ..................
----- ----- ----- ------- ------ ------ -------- -------- ------------
Retained Earnings
Balance at beginning of year ............
Net income (loss) .......................
Cash dividends -
CG ...................................
Subsidiaries (to CG) .................
Other ..................................
----- ----- ----- ------- ------ ------ -------- -------- ------------
Balance at end of year ..................
----- ----- ----- ------- ------ ------ -------- -------- ------------
Reacquired Capital Stock .................
Accumulated Foreign Currency
Translation Adjustment ...................
Balance at beginning of year ............
Translation adjustment .................
----- ----- ----- ------- ------ ------ -------- -------- ------------
Balance at end of year ..................
----- ----- ----- ------- ------ ------ -------- -------- ------------
Unearned Employee Compensation
Balance at beginning of year ............
Adjustment .............................
----- ----- ----- ------- ------ ------ -------- -------- ------------
Balance at end of year ..................
----- ----- ----- ------- ------ ------ -------- -------- ------------
TOTAL COMMON STOCK EQUITY ................
===== ===== ===== ======= ====== ====== ======== ======== ============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 183
F-5E (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Network Services Corporation and Subsidiaries
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CNS
CMC EN CNS Combined Entries Consolidated
--- -- --- -------- ------- ------------
<S> <C> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year ............. * * * * * *
Common stock issued -
Subsidiaries ...........................
Long-term incentive plan ...............
Public offering ........................
Reduction in par value .................
Equity for debt recapitalization .......
------ ------- ------ -------- -------- -----------
Balance at end of year ...................
------ ------- ------ -------- -------- -----------
Additional Paid in Capital
Balance at beginning of year .............
Common stock issued -
Subsidiaries ...........................
Long-term incentive plan ...............
Public offering ........................
Reduction in par value - APIC ..........
Recapitalization -
Capital contributions ..................
------ ------- ------ -------- -------- -----------
Balance at end of year ...................
------ ------- ------ -------- -------- -----------
Retained Earnings
Balance at beginning of year .............
Net income (loss) ........................
Cash dividends -
CG .....................................
Subsidiaries (to CG) ...................
Other ....................................
------ ------- ------ -------- -------- -----------
Balance at end of year ...................
------ ------- ------ -------- -------- -----------
Reacquired Capital Stock ...................
Accumulated Foreign Currency
Translation Adjustment .....................
Balance at beginning of year .............
Translation adjustment ..................
------ ------- ------ -------- -------- -----------
Balance at end of year ...................
------ ------- ------ -------- -------- -----------
Unearned Employee Compensation
Balance at beginning of year .............
Adjustment ..............................
------ ------- ------ -------- -------- -----------
Balance at end of year ...................
------ ------- ------ -------- -------- -----------
TOTAL COMMON STOCK EQUITY ..................
====== ======= ====== ======== ======== ===========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 184
F-5F (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Resources, Inc. and Subsidiaries
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CER
CNR HH CU AD CER Combined Entries Consolidated
--- -- -- -- --- -------- ------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year .............. * * * * * * * *
Common stock issued -
Subsidiaries ............................
Long-term incentive plan ................
Public offering .........................
Reduction in par value ..................
Equity for debt recapitalization ........
------ ----- ------- ----- ----- ---------- ------- -----------
Balance at end of year ....................
------ ----- ------- ----- ----- ---------- ------- -----------
Additional Paid in Capital
Balance at beginning of year ..............
Common stock issued -
Subsidiaries ............................
Long-term incentive plan ................
Public offering .........................
Reduction in par value - APIC ...........
Recapitalization -
Capital contributions ...................
------ ----- ------- ----- ----- ---------- ------- -----------
Balance at end of year ....................
------ ----- ------- ----- ----- ---------- ------- -----------
Retained Earnings
Balance at beginning of year ..............
Net income (loss) .........................
Cash dividends -
CG ......................................
Subsidiaries (to CG) ....................
Other .....................................
------ ----- ------- ----- ----- ---------- ------- -----------
Balance at end of year ....................
------ ----- ------- ----- ----- ---------- ------- -----------
Reacquired Capital Stock ....................
Accumulated Foreign Currency
Translation Adjustment ......................
Balance at beginning of year ..............
Translation adjustment ..................
------ ----- ------- ----- ----- ---------- ------- -----------
Balance at end of year ....................
------ ----- ------- ----- ----- ---------- ------- -----------
Unearned Employee Compensation
Balance at beginning of year ..............
Adjustment ...............................
------ ----- ------- ----- ----- ---------- ------- -----------
Balance at end of year ....................
------ ----- ------- ----- ----- ---------- ------- -----------
TOTAL COMMON STOCK EQUITY ...................
====== ===== ======= ===== ===== ========== ======= ===========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 185
F-5G (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Pipeline Company and Subsidiary
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CPL
CDW CPL Combined Entries Consolidated
--- --- -------- ------- ------------
<S> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year ............................... * * * * *
Common stock issued -
Subsidiaries ............................................
Long-term incentive plan ................................
Public offering .........................................
Reduction in par value ..................................
Equity for debt recapitalization ........................
--------- -------- ------------- ---------- -------------
Balance at end of year ....................................
--------- -------- ------------- ---------- -------------
Additional Paid in Capital
Balance at beginning of year ...............................
Common stock issued -
Subsidiaries ............................................
Long-term incentive plan ................................
Public offering .........................................
Reduction in par value - APIC ...........................
Recapitalization -
Capital contributions ...................................
--------- -------- ------------- ---------- -------------
Balance at end of year .....................................
--------- -------- ------------- ---------- -------------
Retained Earnings
Balance at beginning of year ...............................
Net income (loss) .........................................
Cash dividends -
CG ......................................................
Subsidiaries (to CG) ....................................
Other .....................................................
--------- -------- ------------- ---------- -------------
Balance at end of year ....................................
--------- -------- ------------- ---------- -------------
Reacquired Capital Stock ....................................
Accumulated Foreign Currency
Translation Adjustment
Balance at beginning of year ..............................
Translation adjustment ...................................
--------- -------- ------------- ---------- -------------
Balance at end of year ....................................
--------- -------- ------------- ---------- -------------
Unearned Employee Compensation
Balance at beginning of year ..............................
Adjustment ...............................................
--------- -------- ------------- ---------- -------------
Balance at end of year ....................................
--------- -------- ------------- ---------- -------------
TOTAL COMMON STOCK EQUITY ...................................
========= ======== ============= ========== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 186
F-5H (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Finance Corporation and Subsidiary
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CFC
CAR CFC Combined Entries Consolidated
--- --- -------- ------- ------------
<S> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year ......................... * * * * *
Common stock issued -
Subsidiaries .......................................
Long-term incentive plan ...........................
Public offering ....................................
Reduction in par value .............................
Equity for debt recapitalization ...................
------- ------- ------------ -------- -------------
Balance at end of year ...............................
------- ------- ------------ -------- -------------
Additional Paid in Capital
Balance at beginning of year .........................
Common stock issued -
Subsidiaries .......................................
Long-term incentive plan ...........................
Public offering ....................................
Reduction in par value - APIC ......................
Recapitalization -
Capital contributions ..............................
------- ------- ------------ -------- -------------
Balance at end of year ...............................
------- ------- ------------ -------- -------------
Retained Earnings
Balance at beginning of year .........................
Net income (loss) ....................................
Cash dividends -
CG .................................................
Subsidiaries (to CG) ...............................
Other ................................................
------- ------- ------------ -------- -------------
Balance at end of year ...............................
------- ------- ------------ -------- -------------
Reacquired Capital Stock ...............................
Accumulated Foreign Currency
Translation Adjustment .................................
Balance at beginning of year .........................
Translation adjustment ...............................
------- ------- ------------ -------- -------------
Balance at end of year ...............................
------- ------- ------------ -------- -------------
Unearned Employee Compensation
Balance at beginning of year .........................
Adjustment ...........................................
------- ------- ------------ -------- -------------
Balance at end of year ...............................
------- ------- ------------ -------- -------------
TOTAL COMMON STOCK EQUITY ..............................
======= ======= ============ ======== =============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 187
F-5I (1 of 1)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Propane Corporation and Subsidiaries
Consolidating Statement of Common Stock Equity
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CPC
CPC PET CPLP CPH Combined Entries Consolidated
--- --- ---- --- -------- ------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Common Stock
Balance at beginning of year * * * * * * *
Common stock issued -
Subsidiaries
Long-term incentive plan
Public offering
Reduction in par value
Equity for debt recapitalization
------- -------- -------- ------ --------- ------- ------------
Balance at end of year
------- -------- -------- ------ --------- ------- ------------
Additional Paid in Capital
Balance at beginning of year
Common stock issued -
Subsidiaries
Long-term incentive plan
Public offering
Reduction in par value - APIC
Recapitalization -
Capital contributions
------- -------- -------- ------ --------- ------- ------------
Balance at end of year
------- -------- -------- ------ --------- ------- ------------
Retained Earnings
Balance at beginning of year
Net income (loss)
Cash dividends -
CG
Subsidiaries (to CG)
Other
------- -------- -------- ------ --------- ------- ------------
Balance at end of year
------- -------- -------- ------ --------- ------- ------------
Reacquired Capital Stock
Accumulated Foreign Currency
Translation Adjustment
Balance at beginning of year
Translation adjustment
------- -------- -------- ------ --------- ------- ------------
Balance at end of year
------- -------- -------- ------ --------- ------- ------------
Unearned Employee Compensation
Balance at beginning of year
Adjustment
------- -------- -------- ------ --------- ------- ------------
Balance at end of year
------- -------- -------- ------ --------- ------- ------------
TOTAL COMMON STOCK EQUITY
======= ======== ======== ====== ========= ======= ============
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 188
F-6 (1 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6 F-6 F-6 F-6 Consolidating
Page 2 Page 3 Page 4 Page 5 Combined Entries Consolidated
------ ------ ------ ------ -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Net Cash From Operations (See F-6 Page 6 for detail) * * * * * * 831,509
------ ------ ------ ------ -------- ------------- ------------
Investment Activities
Capital expenditures ............................. (462,333)
Acquisitions and other investments - net ......... (368,197)
------ ------ ------ ------ -------- ------------- ------------
Net Investment Activities .......................... (830,530)
------ ------ ------ ------ -------- ------------- ------------
Financing Activities
Dividends paid ................................... (71,844)
Capital contributions ............................ --
Retirement of long-term debt ..................... (52,451)
Issuance of common stock -
Issued by Registrant ........................... 15,516
Issued by Subsidiary to Registrant ............. --
Issuance of long-term debt -
Issued by Registrant ........................... --
Issued by Subsidiary to Registrant ............. --
Issuance (Repayment) of short-term debt .......... 320,708
Purchase of treasury stock ....................... (134,975)
Other financing activities ....................... (38,324)
------ ------ ------ ------ -------- ------------- ------------
Net Financing Activities ........................... 38,630
------ ------ ------ ------ -------- ------------- ------------
Increase in cash and temporary cash investments .... 39,609
Cash and temporary cash investments at
beginning of year ................................. 22,974
------ ------ ------ ------ -------- ------------- ------------
Cash and temporary cash investments at
end of year (a) ................................... 62,583
------ ------ ------ ------ -------- ------------- ------------
Supplemental Disclosures of Cash Flow Information
Cash paid for interest 149,255
Cash paid for income taxes (net of refunds) 61,712
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes intercompany money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 189
F-6 (2 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6 Page 2
CER (b) TCO CGT CLG (b) CKY Total
-------- ---------- --------- --------- --------- -----------
<S> <C> <C> <C> <C> <C> <C>
Net Cash From Operations (See F-6 Page 7 for detail) * 216,586 86,721 * * 303,307
-------- --------- --------- --------- --------- --------
Investment Activities
Capital expenditures ............................. (118,652) (55,198) (173,850)
Acquisitions and other investments- net .......... -- -- --
-------- ---------- --------- --------- --------- --------
Net Investment Activities .......................... (118,652) (55,198) (173,850)
-------- ---------- --------- --------- --------- --------
Financing Activities
Dividends paid ................................... (161,000) (46,200) (207,200)
Capital contributions ............................ -- -- --
Retirement of long-term debt ..................... -- -- --
Issuance of common stock -
Issued by Registrant ........................... -- -- --
Issued by Subsidiary to Registrant ............. -- -- --
Issuance of long-term debt -
Issued by Registrant ........................... -- 20,000 20,000
Issued by Subsidiary to Registrant ............. -- -- --
Issuance (Repayment) of short-term debt .......... 77,895 (2,708) 75,187
Purchase of treasury stock ....................... -- -- --
Other financing activities ....................... (14,706) (2,356) (17,062)
-------- ---------- --------- --------- --------- --------
Net Financing Activities ........................... (97,811) (31,264) (129,075)
-------- ---------- --------- --------- --------- --------
Increase in cash and temporary cash investments .... 123 259 382
Cash and temporary cash investments at
beginning of year ................................. 70 11 81
-------- ---------- --------- --------- --------- --------
Cash and temporary cash investments at
end of year (a) ................................... 193 270 463
-------- ---------- --------- --------- --------- --------
Supplemental Disclosures of Cash Flow Information
Cash paid for interest 44,009 5,255 49,264
Cash paid for income taxes (net of refunds) 29,813 10,847 40,660
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes intercompany money
(b) CER includes four subsidiaries and CLG includes one subsidiary as noted in
Item 1. Consolidating financial statements of CER and CLG are presented herewith
in Item 10, Exhibits F-1F through F-6F and F-1C through F-6C, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 190
F-6 (3 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6 Page 3
COH CMD CPA CGV CG Total
------- ------ ------ ------ ------ --------
<S> <C> <C> <C> <C> <C> <C>
Net Cash From Operations (See F-6 Page 8 for detail) 246,562 10,280 50,232 43,498 * *
------- ------ ------ ------- ------ --------
Investment Activities
Capital expenditures ............................. (39,139) (3,945) (27,233) (45,284)
Acquisitions and other investments - net ......... -- -- -- --
------- ------ ------ ------- ------ --------
Net Investment Activities .......................... (39,139) (3,945) (27,233) (45,284)
------- ------ ------ ------- ------ --------
Financing Activities
Dividends paid ................................... (73,690) (2,964) (31,497) --
Capital contributions ............................ -- -- -- --
Retirement of long-term debt ..................... -- -- -- --
Issuance of common stock -
Issued by Registrant ........................... -- -- -- --
Issued by Subsidiary to Registrant ............. -- -- -- --
Issuance of long-term debt -
Issued by Registrant ........................... -- -- -- 10,000
Issued by Subsidiary to Registrant ............. -- -- -- --
Issuance (Repayment) of short-term debt .......... (91,428) (1,203) 4,961 --
Purchase of treasury stock ....................... -- -- -- --
Other financing activities ....................... (3,159) (923) 2,565 (2,496)
------- ------ ------ ------ ------ --------
Net Financing Activities ........................... (168,277) (5,090) (23,971) 7,504
------- ------ ------ ------ ------ --------
Increase in cash and temporary cash investments .... 39,146 1,245 (972) 5,718
Cash and temporary cash investments at
beginning of year ................................. 3,266 103 1,020 1,028
------- ------ ------ ------ ------ --------
Cash and temporary cash investments at
end of year (a) ................................... 42,412 1,348 48 6,746
------- ------ ------ ------ ------ --------
Supplemental Disclosures of Cash Flow Information
Cash paid for interest 25,489 1,351 11,889 9,145
Cash paid for income taxes (net of refunds) 7,310 (266) 9,609 2,114
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes intercompany money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 191
F-6 (4 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6 Page 4
CS CIC CES (b) CPC (b) CEC (b) Total
-------- -------- -------- ------ ------- ----------
<S> <C> <C> <C> <C> <C> <C>
Net Cash From Operations (See F-6 Page 9 for detail) 212 * * * * *
-------- -------- -------- ------ ------- ----------
Investment Activities
Capital expenditures ............................. (4,881)
Acquisitions and other investments - net ......... --
-------- -------- -------- ------ ------- ----------
Net Investment Activities .......................... (4,881)
-------- -------- -------- ------ ------- ----------
Financing Activities
Dividends paid ................................... (1,304)
Capital contributions ............................ (12,700)
Retirement of long-term debt ..................... --
Issuance of common stock -
Issued by Registrant ........................... --
Issued by Subsidiary to Registrant ............. --
Issuance of long-term debt -
Issued by Registrant ........................... 12,700
Issued by Subsidiary to Registrant ............. --
Issuance (Repayment) of short-term debt .......... 6,058
Purchase of treasury stock ....................... --
Other financing activities ....................... (398)
-------- -------- -------- ------ ------- ----------
Net Financing Activities ........................... 4,356
-------- -------- -------- ------ ------- ----------
Increase in cash and temporary cash investments .... (313)
Cash and temporary cash investments at
beginning of year ................................. 433
-------- -------- -------- ------ ------- ----------
Cash and temporary cash investments at
end of year (a) ................................... 120
-------- -------- -------- ------ ------- ----------
Supplemental Disclosures of Cash Flow Information
Cash paid for interest 2,902
Cash paid for income taxes (net of refunds) 659
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes intercompany money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
(b) CES includes five subsidiaries, CPC includes three subsidiaries and CEC
includes sixteen subsidiaries as noted in Item 1. Consolidating financial
statements of CES, CPC and CEC are presented herewith in Item 10, Exhibits F-1D
through F-6D, F-1I through F-6I and F-1A through F-6A, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 192
F-6 (5 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6 Page 5
CCC (b) CAT CNS (b) CPL (b) CFC (b) Total
-------- -------- -------- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Net Cash From Operations (See F-6 Page 10 for detail) * * * * * *
-------- -------- -------- ------- -------- --------
Investment Activities
Capital expenditures ..............................
Acquisitions and other investments - net ..........
-------- -------- -------- ------- -------- --------
Net Investment Activities ...........................
-------- -------- -------- ------- -------- --------
Financing Activities
Dividends paid ....................................
Capital contributions .............................
Retirement of long-term debt .......................
Issuance of common stock -
Issued by Registrant .............................
Issued by Subsidiary to Registrant ...............
Issuance of long-term debt -
Issued by Registrant .............................
Issued by Subsidiary to Registrant ...............
Issuance (Repayment) of short-term debt ............
Purchase of treasury stock .........................
Other financing activities .........................
-------- -------- -------- ------- -------- --------
Net Financing Activities .............................
-------- -------- -------- ------- -------- --------
Increase in cash and temporary cash investments ......
Cash and temporary cash investments at
beginning of year ...................................
-------- -------- -------- ------- -------- --------
Cash and temporary cash investments at
end of year (a) .....................................
-------- -------- -------- ------- -------- --------
Supplemental Disclosures of Cash Flow Information
Cash paid for interest
Cash paid for income taxes (net of refunds)
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes intercompany money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
(b) CCC and CNS include two subsidiaries, CPL and CFC include one subsidiary as
noted in Item 1. Consolidating financial statements of CCC, CNS, CPL and CFC are
presented herewith in Item 10, Exhibits F-1B through F-6B, F-1E through F-6E,
F-1G through F-6G and F-1H through F-6H, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 193
F-6 (6 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6 F-6 F-6 F-6 Consolidating
Page 7 Page 8 Page 9 Page 10 Combined Entries Consolidated
------ ------ ------ ------- -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income (loss) ................................... * * * * * * 249,166
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations ................. 80,005
Loss on disposal .................................. 25,807
Equity in undistributed earnings of subsidiaries .. --
Depreciation and depletion ........................ 228,999
Deferred income taxes ............................. 45,111
Earnings from equity inv., net of distributions ... 22,966
Other - net ....................................... 53,533
Changes in components of working capital:
Accounts receivable, net .......................... (191,741)
Sale of accounts receivable ....................... 81,100
Gas inventory ..................................... 41,100
Prepayments ....................................... (8,670)
Accounts payable .................................. 98,277
Accrued taxes ..................................... 71,970
Accrued interest .................................. 15,111
Estimated rate refunds ............................ (37,803)
Estimated supplier obligations .................... (40,649)
Under/Overrecovered gas costs ..................... (35,734)
Exchange gas receivable/payable ................... 80,400
Other working capital ............................. 46,799
------ ------ ------ ------- -------- ------------- ---------
Net Cash From Continuing Operations ................... 825,747
Net Cash From Discontinued Operations ................. 5,762
------ ------ ------ ------- -------- ------------- ---------
Net Cash From Operating Activities .................... 831,509
====== ====== ====== ======= ======== ============= =========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 194
F-6 (7 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6 Page 7
CER (a) TCO CGT CLG (a) CKY Total
------- -------- -------- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income ....................................... * 184,895 37,614 * 13,864 *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations .............. -- -- --
Loss on disposal ............................... -- -- --
Equity in undistributed earnings of subsidiaries -- -- --
Depreciation and depletion ..................... 84,740 21,121 7,792
Deferred income taxes .......................... 29,393 (9,657) 2,290
Earnings from equity inv., net of distributions (6,684) 22,679 --
Other - net .................................... (22,098) 4,354 (855)
Changes in components of working capital:
Accounts receivable, net ....................... (9,025) 2,737 (10,303)
Sale of accounts receivable .................... -- -- --
Gas inventory .................................. -- -- 364
Prepayments .................................... (10,724) (2,571) 154
Accounts payable ............................... 32,318 6,136 86
Accrued taxes .................................. (1,151) 13,912 3,641
Accrued interest ............................... 484 (19) 109
Estimated rate refunds ......................... (41,872) (2,006) 159
Estimated supplier obligations ................. (40,649) -- --
Under/Overrecovered gas costs .................. -- -- (4,328)
Exchange gas receivable/payable ................ 18,142 1,107 3,990
Other working capital .......................... (1,183) (8,686) 4,435
------- -------- -------- ------- -------- --------
Net Cash From Continuing Operations ................ 216,586 86,721 21,398
Net Cash From Discontinued Operations .............. -- -- --
------- -------- -------- ------- -------- --------
Net Cash From Operating Activities ................. 216,586 86,721 21,398
======= ======== ======== ======= ======= ========
</TABLE>
(a) CER includes four subsidiaries and CLG includes one subsidiary as noted in
Item 1. Consolidating financial statements of CER and CLG are presented herewith
in Item 10, Exhibits F-1F through F-6F and F-1C through F-6C, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 195
F-6 (8 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6 Page 8
COH CMD CPA CGV CG Total
------- -------- -------- -------- -------- ----------
<S> <C> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income ....................................... 75,194 3,794 33,917 14,681 * *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations .............. -- -- -- --
Loss on disposal ............................... -- -- -- --
Equity in undistributed earnings of subsidiaries -- -- -- --
Depreciation and depletion ..................... 16,811 2,286 15,945 11,700
Deferred income taxes .......................... 14,307 2,360 8,073 653
Earnings from equity inv., net of distributions -- -- -- --
Other - net .................................... (12,566) 373 (1,123) 1,351
Changes in components of working capital:
Accounts receivable, net ....................... (18,646) (962) (13,969) (4,918)
Sale of accounts receivable .................... 81,100 -- -- --
Gas inventory .................................. 34,949 630 4,488 669
Prepayments .................................... 8,583 -- 53 (241)
Accounts payable ............................... (6,835) (558) (2,764) 5,745
Accrued taxes .................................. 7,573 (54) (2,386) 3,087
Accrued interest ............................... 64 (4) (34) 27
Estimated rate refunds ......................... 2,527 (61) 1,496 1,954
Estimated supplier obligations ................. -- -- -- --
Under/Overrecovered gas costs .................. (21,868) (5,592) (7,453) 3,507
Exchange gas receivable/payable ................ 40,343 5,900 7,540 4,335
Other working capital .......................... 25,026 2,168 6,449 948
------- -------- -------- -------- -------- ----------
Net Cash From Continuing Operations ................ 246,562 10,280 50,232 43,498
Net Cash From Discontinued Operations .............. -- -- -- --
------- -------- -------- -------- -------- ----------
Net Cash From Operating Activities ................. 246,562 10,280 50,232 43,498
======= ======== ======== ======== ======= ==========
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 196
F-6 (9 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6 Page 9
CS CIC CES (a) CPC (a) CEC (a) Total
--------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income (loss) ................................ 1,119 * * * * *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations .............. --
Loss on disposal ............................... --
Equity in undistributed earnings of subsidiaries --
Depreciation and depletion ..................... 4,140
Deferred income taxes .......................... 5,402
Earnings from equity inv., net of distributions --
Other - net .................................... (3,450)
Changes in components of working capital:
Accounts receivable, net ....................... (3,157)
Sale of accounts receivable .................... --
Gas inventory .................................. --
Prepayments .................................... 157
Accounts payable ............................... (4,378)
Accrued taxes .................................. (1,469)
Accrued interest ............................... 7
Estimated rate refunds ......................... --
Estimated supplier obligations ................. --
Under/Overrecovered gas costs .................. --
Exchange gas receivable/payable ................ --
Other working capital .......................... 1,841
-------- -------- -------- -------- -------- --------
Net Cash From Continuing Operations ................ 212
Net Cash From Discontinued Operations .............. --
-------- -------- -------- -------- -------- --------
Net Cash From Operating Activities ................. 212
======== ======== ======== ======== ======== ========
</TABLE>
(a) CES includes five subsidiaries, CPC includes three subsidiaries and CEC
includes sixteen subsidiaries as noted in Item 1. Consolidating financial
statements of CES, CPC and CEC are presented herewith in Item 10, Exhibits F-1D
through F-6D, F-1I through F-6I and F-1A through F-6A, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 197
F-6 (10 of 10)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6 Page 10
CCC (a) CAT CNS (a) CPL (a) CFC (a) Total
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income (loss) ................................ * * * * * *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations ..............
Loss on disposal ...............................
Equity in undistributed earnings of subsidiaries
Depreciation and depletion .....................
Deferred income taxes ..........................
Earnings from equity inv., net of distributions
Other - net ....................................
Changes in components of working capital:
Accounts receivable, net .......................
Sale of accounts receivable ....................
Gas inventory ..................................
Prepayments ....................................
Accounts payable ...............................
Accrued taxes ..................................
Accrued interest ...............................
Estimated rate refunds .........................
Estimated supplier obligations .................
Under/Overrecovered gas costs ..................
Exchange gas receivable/payable ................
Other working capital ..........................
-------- -------- -------- -------- -------- --------
Net Cash From Continuing Operations ................
Net Cash From Discontinued Operations ..............
-------- -------- -------- -------- -------- --------
Net Cash From Operating Activities .................
======== ======== ======== ======== ======== ========
</TABLE>
(a) CCC and CNS include two subsidiaries, CPL and CFC include one subsidiary as
noted in Item 1. Consolidating financial statements of CCC, CNS, CPL and CFC are
presented herewith in Item 10, Exhibits F-1B through F-6B, F-1E through F-6E,
F-1G through F-6G and F-1H through F-6H, respectively.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 198
F-6A (1 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6A F-6A F-6A Consolidating CEC
Page 2 Page 3 Page 4 Combined Entries Consolidated
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Net Cash From Operations (See F-6A Page 5 for detail) * * * * * *
-------- -------- -------- -------- -------- --------
Investment Activities
Capital expenditures ...............................
Acquisitions and other investments - net ...........
-------- -------- -------- -------- -------- --------
Net Investment Activities ............................
-------- -------- -------- -------- -------- --------
Financing Activities
Dividends paid .....................................
Capital contributions ..............................
Retirement of long-term debt .......................
Issuance of common stock -
Issued by Registrant .............................
Issued by Subsidiary to Registrant ...............
Issuance of long-term debt -
Issued by Registrant .............................
Issued by Subsidiary to Registrant ...............
Issuance (Repayment) of short-term debt ............
Other financing activities .........................
-------- -------- -------- -------- -------- --------
Net Financing Activities .............................
-------- -------- -------- -------- -------- --------
Increase in cash and temporary cash investments ......
Cash and temporary cash investments at
beginning of year ...................................
-------- -------- -------- -------- -------- --------
Cash and temporary cash investments at
end of year (a) .....................................
======== ======== ======== ======== ======== ========
Supplemental Disclosures of Cash Flow Information
Cash paid for interest
Cash paid for income tax (net of refunds)
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes intercompany money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 199
F-6A (2 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6A Page 2
CBG CBL CCL CEC CEH Total
-------- -------- -------- -------- -------- -----------
<S> <C> <C> <C> <C> <C> <C>
Net Cash From Operations (See F-6A Page 6 for detail) * * * * * *
-------- -------- -------- -------- -------- --------
Investment Activities
Capital expenditures ...............................
Acquisitions and other investments - net ...........
-------- -------- -------- -------- -------- --------
Net Investment Activities ............................
-------- -------- -------- -------- -------- --------
Financing Activities
Dividends paid .....................................
Capital contributions ..............................
Retirement of long-term debt .......................
Issuance of common stock -
Issued by Registrant .............................
Issued by Subsidiary to Registrant ...............
Issuance of long-term debt -
Issued by Registrant .............................
Issued by Subsidiary to Registrant ...............
Issuance (Repayment) of short-term debt ............
Other financing activities .........................
-------- -------- -------- -------- -------- --------
Net Financing Activities .............................
-------- -------- -------- -------- -------- --------
Increase in cash and temporary cash investments ......
Cash and temporary cash investments at
beginning of year ...................................
-------- -------- -------- -------- -------- --------
Cash and temporary cash investments at
end of year (a) .....................................
======== ======== ======== ======== ======== ========
Supplemental Disclosures of Cash Flow Information
Cash paid for interest
Cash paid for income tax (net of refunds)
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes intercompany money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 200
F-6A (3 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6A Page 3
CEK CEL CGG CGP CEPL CGR Total
-------- -------- -------- -------- -------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Net Cash From Operations (See F-6A Page 7 for detail) * * * * * * *
-------- -------- -------- -------- -------- -------- ---------
Investment Activities
Capital expenditures ...............................
Acquisitions and other investments - net ...........
-------- -------- -------- -------- -------- -------- ---------
Net Investment Activities ............................
-------- -------- -------- -------- -------- -------- ---------
Financing Activities
Dividends paid .....................................
Capital contributions ..............................
Retirement of long-term debt .......................
Issuance of common stock -
Issued by Registrant .............................
Issued by Subsidiary to Registrant ...............
Issuance of long-term debt -
Issued by Registrant .............................
Issued by Subsidiary to Registrant ...............
Issuance (Repayment) of short-term debt ............
Other financing activities .........................
-------- -------- -------- -------- -------- -------- ---------
Net Financing Activities .............................
-------- -------- -------- -------- -------- -------- ---------
Increase in cash and temporary cash investments ......
Cash and temporary cash investments at
beginning of year ...................................
-------- -------- -------- -------- -------- -------- ---------
Cash and temporary cash investments at
end of year (a) .....................................
======== ======== ======== ======== ======== ======== =========
Supplemental Disclosures of Cash Flow Information
Cash paid for interest
Cash paid for income tax (net of refunds)
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes intercompany money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 201
F-6A (4 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6A Page 4
CHC CLP CRL CVG CVL CLM Total
-------- -------- -------- -------- -------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Net Cash From Operations (See F-6A Page 8 for detail) * * * * * * *
-------- -------- -------- -------- -------- -------- ---------
Investment Activities
Capital expenditures ...............................
Acquisitions and other investments - net ...........
-------- -------- -------- -------- -------- -------- ---------
Net Investment Activities ............................
-------- -------- -------- -------- -------- -------- ---------
Financing Activities
Dividends paid .....................................
Capital contributions ..............................
Retirement of long-term debt .......................
Issuance of common stock -
Issued by Registrant .............................
Issued by Subsidiary to Registrant ...............
Issuance of long-term debt -
Issued by Registrant .............................
Issued by Subsidiary to Registrant ...............
Issuance (Repayment) of short-term debt ............
Other financing activities .........................
-------- -------- -------- -------- -------- -------- ---------
Net Financing Activities .............................
-------- -------- -------- -------- -------- -------- ---------
Increase in cash and temporary cash investments ......
Cash and temporary cash investments at
beginning of year ...................................
-------- -------- -------- -------- -------- -------- ---------
Cash and temporary cash investments at
end of year (a) .....................................
======== ======== ======== ======== ======== ======== =========
Supplemental Disclosures of Cash Flow Information
Cash paid for interest
Cash paid for income tax (net of refunds)
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes intercompany money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 202
F-6A (5 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6A F-6A F-6A Consolidating CEC
Page 6 Page 7 Page 8 Combined Entries Consolidated
------- -------- -------- -------- -------- ----------
<S> <C> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income (loss) ................................ * * * * * *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations ................
Loss on disposal .................................
Equity in undistributed earnings of subsidiaries
Depreciation and depletion .......................
Deferred income taxes ............................
Earnings from equity inv., net of distributions ..
Other - net ......................................
Changes in components of working capital:
Accounts receivable, net .........................
Sale of accounts receivable ......................
Gas inventory ....................................
Prepayments ......................................
Accounts payable .................................
Accrued taxes ....................................
Accrued interest .................................
Estimated rate refunds ...........................
Estimated supplier obligations ...................
Under/Overrecovered gas costs ....................
Exchange gas receivable/payable ..................
Other working capital ............................
------- -------- -------- -------- -------- -------
Net Cash From Continuing Operations ..................
Net Cash From Discontinued Operations ................
------- -------- -------- -------- -------- -------
Net Cash From Operating Activities ...................
======= ======== ======== ======== ======== =======
</TABLE>
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 203
F-6A (6 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6A Page 6
CBG CBL CCL CEC CEH Total
-------- ---------- --------- -------- --------- -----------
<S> <C> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income (loss) ..................................... * * * * * *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations....................
Loss on disposal.....................................
Equity in undistributed earnings of subsidiaries ....
Depreciation and depletion ..........................
Deferred income taxes ...............................
Earnings from equity inv., net of distributions .....
Other - net .........................................
Changes in components of working capital:
Accounts receivable, net.............................
Sale of accounts receivable..........................
Gas inventory .......................................
Prepayments .........................................
Accounts payable ....................................
Accrued taxes .......................................
Accrued interest ....................................
Estimated rate refunds ..............................
Estimated supplier obligations.......................
Under/Overrecovered gas costs .......................
Exchange gas receivable/payable......................
Other working capital ...............................
-------- ---------- --------- -------- --------- -----------
Net Cash From Continuing Operations......................
Net Cash From Discontinued Operations....................
-------- ---------- --------- -------- --------- -----------
Net Cash From Operating Activities.......................
======== ========== ========= ======== ========= ===========
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 204
F-6A (7 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6A Page 7
CEK CEL CGG CGP CEPL CGR Total
-------- ------- -------- ------- -------- ------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income (loss) ..................................... * * * * * * *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations....................
Loss on disposal.....................................
Equity in undistributed earnings of subsidiaries ....
Depreciation and depletion ..........................
Deferred income taxes ...............................
Earnings from equity inv., net of distributions .....
Other - net .........................................
Changes in Components of working capital:
Accounts receivable, net.............................
Sale of accounts receivable..........................
Gas inventory .......................................
Prepayments .........................................
Accounts payable ....................................
Accrued taxes .......................................
Accrued interest ....................................
Estimated rate refunds ..............................
Estimated supplier obligations.......................
Under/Overrecovered gas costs .......................
Exchange gas receivable/payable......................
Other working capital ...............................
-------- ------- -------- ------- -------- ------- -----------
Net Cash From Continuing Operations......................
Net Cash From Discontinued Operations....................
-------- ------- -------- ------- -------- ------- -----------
Net Cash From Operating Activities.......................
======== ======= ======== ======= ======== ======= ===========
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 205
F-6A (8 of 8)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Electric Corporation and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
F-6A Page 8
CHC CLP CRL CVG CVL CLM Total
-------- ------- -------- ------- -------- ------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income (loss) ..................................... * * * * * * *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations....................
Loss on disposal.....................................
Equity in undistributed earnings of subsidiaries ....
Depreciation and depletion ..........................
Deferred income taxes ...............................
Earnings from equity inv., net of distributions .....
Other - net .........................................
Changes in components of working capital:
Accounts receivable, net.............................
Sale of accounts receivable..........................
Gas inventory .......................................
Prepayments .........................................
Accounts payable ....................................
Accrued taxes .......................................
Accrued interest ....................................
Estimated rate refunds ..............................
Estimated supplier obligations.......................
Under/Overrecovered gas costs .......................
Exchange gas receivable/payable......................
Other working capital ...............................
-------- ------- -------- ------- -------- ------- -----------
Net Cash From Continuing Operations......................
Net Cash From Discontinued Operations....................
-------- ------- -------- ------- -------- ------- -----------
Net Cash From Operating Activities.......................
======== ======= ======== ======= ======== ======= ===========
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 206
F-6B (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Group Capital Corporation and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CCC
TGT CTC CCC Combined Entries Consolidated
-------- -------- -------- -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Net Cash From Operations (refer to F-6B (2 of 2))......... * * * * * *
-------- -------- -------- -------- ------------- ------------
Investment Activities
Capital expenditures ...................................
Acquisitions and other investments - net...............
-------- -------- -------- -------- ------------- ------------
Net Investment Activities ................................
-------- -------- -------- -------- ------------- ------------
Financing Activities
Dividends paid .........................................
Capital contributions ..................................
Retirement of long-term debt ...........................
Issuance of common stock -
Issued by Registrant .................................
Issued by Subsidiary to Registrant ...................
Issuance of long-term debt -
Issued by Registrant .................................
Issued by Subsidiary to Registrant ...................
Issuance (Repayment) of short-term debt ................
Other financing activities .............................
-------- -------- -------- -------- ------------- ------------
Net Financing Activities .................................
-------- -------- -------- -------- ------------- ------------
Increase in cash and temporary cash investments ..........
Cash and temporary cash investments at
beginning of year .......................................
-------- -------- -------- -------- ------------- ------------
Cash and temporary cash investments at
end of year (a) .........................................
======== ======== ======== ======== ============= ============
Supplemental Disclosures of Cash Flow Information
Cash paid for interest
Cash paid for income taxes (net of refunds)
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes intercompany money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 207
F-6B (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Group Capital Corporation and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CCC
TGT CTC CCC Combined Entries Consolidated
--------- --------- -------- -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income (loss) .................................... * * * * * *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations...................
Loss on disposal ...................................
Equity in undistributed earnings of subsidiaries ...
Depreciation and depletion .........................
Deferred income taxes ..............................
Earnings from equity inv., net of distributions ....
Other - net ........................................
Changes in components of working capital:
Accounts receivable, net............................
Sale of accounts receivable.........................
Gas inventory ......................................
Prepayments ........................................
Accounts payable ...................................
Accrued taxes ......................................
Accrued interest ...................................
Estimated rate refunds .............................
Estimated supplier obligations .....................
Under/Overrecovered gas costs ......................
Exchange gas receivable/payable.....................
Other working capital ..............................
--------- --------- -------- -------- ------------- ------------
Net Cash From Continuing Operations.....................
Net Cash From Discontinued Operations...................
--------- --------- -------- -------- ------------- ------------
Net Cash From Operating Activities......................
========= ========= ======== ======== ============= ============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 208
F-6C (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia LNG Corporation and Subsidiary
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CLG
CLNG CLG Combined Entries Consolidated
---------- -------- -------- ------------- ------------
<S> <C> <C> <C> <C> <C>
Net Cash From Operations (refer to F-6C (2 of 2))......... * * * * *
---------- -------- -------- ------------- ------------
Investment Activities
Capital expenditures ...................................
Acquisitions and other investments - net................
---------- -------- -------- ------------- ------------
Net Investment Activities ................................
---------- -------- -------- ------------- ------------
Financing Activities
Dividends paid .........................................
Capital contributions ..................................
Retirement of long-term debt ...........................
Issuance of common stock -
Issued by Registrant .................................
Issued by Subsidiary to Registrant ...................
Issuance of long-term debt -
Issued by Registrant .................................
Issued by Subsidiary to Registrant ...................
Issuance (Repayment) of short-term debt.................
Other financing activities..............................
---------- -------- -------- ------------- ------------
Net Financing Activities ................................
---------- -------- -------- ------------- ------------
Increase in cash and temporary cash investments ..........
Cash and temporary cash investments at
beginning of year .......................................
---------- -------- -------- ------------- ------------
Cash and temporary cash investments at
end of year (a) .........................................
---------- -------- -------- ------------- ------------
Supplemental Disclosures of Cash Flow Information
Cash paid for interest
Cash paid for income taxes (net of refunds)
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes intercompany money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 209
F-6C (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia LNG Corporation and Subsidiary
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CLG
CLNG CLG Combined Entries Consolidated
---------- --------- -------- ------------- ------------
<S> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income (loss) .................................... * * * * *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations...................
Loss on disposal ...................................
Depreciation and depletion .........................
Deferred income taxes ..............................
Earnings from equity inv., net of distributions ....
Other - net ........................................
Changes in components of working capital:
Accounts receivable, net............................
Sale of accounts receivable.........................
Gas inventory ......................................
Prepayments ........................................
Accounts payable ...................................
Accrued taxes ......................................
Accrued interest ...................................
Estimated rate refunds .............................
Estimated supplier obligations .....................
Under/Overrecovered gas costs ......................
Exchange gas receivable/payable.....................
Other working capital ..............................
---------- --------- -------- ------------- ------------
Net Cash From Continuing Operations.....................
Net Cash From Discontinued Operations...................
---------- --------- -------- ------------- ------------
Net Cash From Operating Activities......................
========== ========= ======== ============= ============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 210
F-6D (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Services Corporation and Subsidiaries
Consolidating Statement of Cash Flows as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CES
CEM CPM CRC CSP ECC CES Combined Entries Consolidated
----- ----- ----- ----- ----- ----- -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Net Cash From Operations (refer to F-6D (2 of 2)). * * * * * * * * *
----- ----- ----- ----- ----- ----- -------- ------------- ------------
Investment Activities
Capital expenditures ...........................
Acquisitions and other investments - net........
----- ----- ----- ----- ----- ----- -------- ------------- ------------
Net Investment Activities ........................
----- ----- ----- ----- ----- ----- -------- ------------- ------------
Financing Activities
Dividends paid .................................
Capital contributions ..........................
Retirement of long-term debt ...................
Issuance of common stock -
Issued by Registrant .........................
Issued by Subsidiary to Registrant ...........
Issuance of long-term debt -
Issued by Registrant .........................
Issued by Subsidiary to Registrant ...........
Issuance (Repayment) of short-term debt ........
Other financing activities .....................
----- ----- ----- ----- ----- ----- -------- ------------- ------------
Net Financing Activities .........................
----- ----- ----- ----- ----- ----- -------- ------------- ------------
Increase in cash and temporary cash investments ..
Cash and temporary cash investments at
beginning of year ...............................
----- ----- ----- ----- ----- ----- -------- ------------- ------------
Cash and temporary cash investments at
end of year (a) ................................
===== ===== ===== ===== ===== ===== ======== ============= ============
Supplemental Disclosures of Cash Flow Information
Cash paid for interest
Cash paid for income taxes (net of refunds)
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes intercompany money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 211
F-6D (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Services Corporation and Subsidiaries
Consolidating Statement of Cash Flows as of December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CES
CEM CPM CRC CSP ECC CES Combined Entries Consolidated
---- ---- ---- ---- ----- ----- -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income (loss) .................................. * * * * * * * * *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations.................
Loss on disposal..................................
Equity in undistributed earnings of subsidiaries .
Depreciation and depletion .......................
Deferred income taxes ............................
Earnings from equity inv., net of distributions ..
Other - net ......................................
Changes in components of working capital:
Accounts receivable, net...........................
Sale of accounts receivable........................
Gas inventory ....................................
Prepayments ......................................
Accounts payable .................................
Accrued taxes ....................................
Accrued interest .................................
Estimated rate refunds ...........................
Estimated supplier obligations ...................
Under/Overrecovered gas costs ....................
Exchange gas receivable/payable...................
Other working capital ............................
---- ---- ---- ---- ----- ----- -------- ------------- ------------
Net Cash From Continuing Operations....................
Net Cash From Discontinued Operations..................
---- ---- ---- ---- ----- ----- -------- ------------- ------------
Net Cash From Operating Activities.....................
==== ==== ==== ==== ===== ===== ======== ============= ============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 212
F-6E (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Network Services Corporation and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CNS
CMC EN CNS Combined Entries Consolidated
--------- --------- -------- -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Net Cash From Operations (refer to F-6E (2 of 2))... * * * * * *
--------- --------- -------- -------- ------------- ------------
Investment Activities
Capital expenditures ............................
Acquisitions and other investments - net..........
--------- --------- -------- -------- ------------- ------------
Net Investment Activities ..........................
--------- --------- -------- -------- ------------- ------------
Financing Activities
Dividends paid ...................................
Capital contributions ............................
Retirement of long-term debt .....................
Issuance of common stock -
Issued by Registrant ...........................
Issued by Subsidiary to Registrant .............
Issuance of long-term debt -
Issued by Registrant ...........................
Issued by Subsidiary to Registrant .............
Issuance (Repayment) of short-term debt ..........
Other financing activities .......................
--------- --------- -------- -------- ------------- ------------
Net Financing Activities ...........................
--------- --------- -------- -------- ------------- ------------
Increase in cash and temporary cash investments ....
Cash and temporary cash investments at
beginning of year .................................
--------- --------- -------- -------- ------------- ------------
Cash and temporary cash investments at
end of year (a) ..................................
========= ========= ======== ======== ============= ============
Supplemental Disclosures of Cash Flow Information
Cash paid for interest
Cash paid for income taxes (net of refunds)
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes inter-company money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 213
F-6E (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Network Services Corporation and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CNS
CMC EN CNS Combined Entries Consolidated
--------- --------- -------- -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income (loss) .................................... * * * * * *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations...................
Loss on disposal ...................................
Equity in undistributed earnings of subsidiaries ...
Depreciation and depletion .........................
Deferred income taxes ..............................
Earnings from equity inv., net of distributions ....
Other - net ........................................
Changes in components of working capital:
Accounts receivable, net............................
Sale of accounts receivable.........................
Gas inventory ......................................
Prepayments ........................................
Accounts payable ...................................
Accrued taxes ......................................
Accrued interest ...................................
Estimated rate refunds .............................
Estimated supplier obligations .....................
Under/Overrecovered gas costs ......................
Exchange gas receivable/payable.....................
Other working capital ..............................
--------- --------- -------- -------- ------------- ------------
Net Cash From Continuing Operations.....................
Net Cash From Discontinued Operations...................
--------- --------- -------- -------- ------------- ------------
Net Cash From Operating Activities......................
========= ========= ======== ======== ============= ============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 214
F-6F (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Resources, Inc. and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CER
CNR HH CU AD CER Combined Entries Consolidated
---- ---- ---- ---- ----- -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net Cash From Operations (refer to F-6C (2 of 2)).... * * * * * * * *
---- ---- ---- ---- ----- -------- ------------- ------------
Investment Activities
Capital expenditures ..............................
Acquisitions and other investments - net...........
---- ---- ---- ---- ----- -------- ------------- ------------
Net Investment Activities ...........................
---- ---- ---- ---- ----- -------- ------------- ------------
Financing Activities
Dividends paid ....................................
Capital contributions .............................
Retirement of long-term debt ......................
Issuance of common stock -
Issued by Registrant ............................
Issued by Subsidiary to Registrant ..............
Issuance of long-term debt -
Issued by Registrant ............................
Issued by Subsidiary to Registrant...............
Issuance (Repayment) of short-term debt............
Other financing activities.........................
---- ---- ---- ---- ----- -------- ------------- ------------
Net financing activities ............................
---- ---- ---- ---- ----- -------- ------------- ------------
Increase in cash and temporary cash investments .....
Cash and temporary cash investments at
beginning of year ..................................
---- ---- ---- ---- ----- -------- ------------- ------------
Cash and temporary cash investments at
end of year (a) ....................................
---- ---- ---- ---- ----- -------- ------------- ------------
Supplemental Disclosures of Cash Flow Information
Cash paid for interest
Cash paid for income taxes (net of refunds)
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes intercompany money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 215
F-6F (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Energy Resources, Inc. and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CER
CNR HH CU AD CER Combined Entries Consolidated
---- ---- ---- ---- ----- -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income (loss) ................................... * * * * * * * *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations..................
Loss on disposal...................................
Equity in undistributed earnings of subsidiaries ..
Depreciation and depletion ........................
Deferred income taxes .............................
Earnings from equity inv., net of distributions....
Other - net .......................................
Changes in components of working capital:
Accounts receivable, net...........................
Sale of accounts receivable........................
Prepayments .......................................
Accounts payable ..................................
Accrued taxes .....................................
Accrued interest ..................................
Estimated rate refunds ............................
Estimated supplier obligations ....................
Under/Overrecovered gas costs .....................
Exchange gas receivable/payable....................
Other working capital .............................
---- ---- ---- ---- ----- -------- ------------- ------------
Net Cash From Continuing Operations....................
Net Cash From Discontinued Operations..................
---- ---- ---- ---- ----- -------- ------------- ------------
Net Cash From Operating Activities.....................
==== ==== ==== ==== ===== ======== ============= ============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 216
F-6G (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Pipeline Company and Subsidiary
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CPL
CDW CPL Combined Entries Consolidated
---------- --------- -------- ------------- ------------
<S> <C> <C> <C> <C> <C>
Net Cash From Operations (refer to F-6G (2 of 2)).... * * * * *
---------- --------- -------- ------------- ------------
Investment Activities
Capital expenditures ..............................
Acquisitions and other investments - net...........
---------- --------- -------- ------------- ------------
Net Investment Activities ...........................
---------- --------- -------- ------------- ------------
Financing Activities
Dividends paid ....................................
Capital contributions .............................
Retirement of long-term debt ......................
Issuance of common stock -
Issued by Registrant ............................
Issued by Subsidiary to Registrant ..............
Issuance of long-term debt -
Issued by Registrant ............................
Issued by Subsidiary to Registrant ..............
Issuance (Repayment) of short-term debt ...........
Purchase of treasury stock ........................
Other financing activities ........................
---------- --------- -------- ------------- ------------
Net Financing Activities ...........................
---------- --------- -------- ------------- ------------
Increase in cash and temporary cash investments .....
Cash and temporary cash investments at
beginning of year ..................................
---------- --------- -------- ------------- ------------
Cash and temporary cash investments at
end of year (a) ....................................
---------- --------- -------- ------------- ------------
Supplemental Disclosures of Cash Flow Information
Cash paid for interest
Cash paid for income taxes (net of refunds)
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes intercompany money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 217
F-6G (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Pipeline Company and Subsidiary
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CPL
CDW CPL Combined Entries Consolidated
---------- --------- -------- ------------- ------------
<S> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income (loss) ..................................... * * * * *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations....................
Loss on disposal ....................................
Equity in undistributed earnings of subsidiaries ....
Depreciation and depletion ..........................
Deferred income taxes ...............................
Earnings from equity inv., net of distributions .....
Other - net .........................................
Changes in components of working capital:
Accounts receivable, net.............................
Sale of accounts receivable..........................
Gas inventory .......................................
Prepayments .........................................
Accounts payable ....................................
Accrued taxes .......................................
Accrued interest ....................................
Estimated rate refunds ..............................
Estimated supplier obligations ......................
Under/Overrecovered gas costs .......................
Exchange gas receivable/payable......................
Other working capital ...............................
---------- --------- -------- ------------- ------------
Net Cash From Continuing Operations......................
Net Cash From Discontinued Operations....................
---------- --------- -------- ------------- ------------
Net Cash From Operating Activities.......................
========== ========= ======== ============= ============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 218
F-6H (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Finance Corporation and Subsidiary
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CFC
CAR CFC Combined Entries Consolidated
---------- --------- -------- ------------- ------------
<S> <C> <C> <C> <C> <C>
Net Cash From Operations (refer to F-6H (2 of 2))...... * * * * *
---------- --------- -------- ------------- ------------
Investment Activities
Capital expenditures ................................
Acquisitions and other investments - net.............
---------- --------- -------- ------------- ------------
Net Investment Activities .............................
---------- --------- -------- ------------- ------------
Financing Activities
Dividends paid ......................................
Capital contributions ...............................
Retirement of long-term debt ........................
Issuance of common stock -
Issued by Registrant ..............................
Issued by Subsidiary to Registrant ................
Issuance of long-term debt -
Issued by Registrant ..............................
Issued by Subsidiary to Registrant ................
Issuance (Repayment) of short-term debt..............
Other financing activities...........................
---------- --------- -------- ------------- ------------
Net Financing Activities .............................
---------- --------- -------- ------------- ------------
Increase in cash and temporary cash investments .......
Cash and temporary cash investments at
beginning of year ....................................
---------- --------- -------- ------------- ------------
Cash and temporary cash investments at
end of year (a) ......................................
---------- --------- -------- ------------- ------------
Supplemental Disclosures of Cash Flow Information
Cash paid for interest
Cash paid for income taxes (net of refunds)
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes intercompany money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 219
F-6H (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Finance Corporation and Subsidiary
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CFC
CAR CFC Combined Entries Consolidated
---------- --------- -------- ------------- ------------
<S> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income (loss) .................................... * * * * *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations...................
Loss on disposal....................................
Equity in undistributed earnings of subsidiaries ...
Depreciation and depletion .........................
Deferred income taxes ..............................
Earnings from equity inv., net of distributions ....
Other - net ........................................
Changes in components of working capital:
Accounts receivable, net............................
Sale of accounts receivable.........................
Gas inventory ......................................
Prepayments ........................................
Accounts payable ...................................
Accrued taxes ......................................
Accrued interest ...................................
Estimated rate refunds .............................
Estimated supplier obligations .....................
Under/Overrecovered gas costs ......................
Exchange gas receivable/payable.....................
Other working capital ..............................
---------- --------- -------- ------------- ------------
Net Cash From Continuing Operations.....................
Net Cash From Discontinued Operations...................
---------- --------- -------- ------------- ------------
Net Cash From Operating Activities......................
========== ========= ======== ============= ============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 220
F-6I (1 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Propane Corporation and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CPC
CPC PET CPLP CPH Combined Entries Consolidated
----- ----- ---- ----- -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Net Cash From Operations (refer to F-6I (2 of 2))... * * * * * * *
----- ----- ---- ----- -------- ------------- ------------
Investment Activities
Capital expenditures ............................
Acquisitions and other investments - net..........
----- ----- ---- ----- -------- ------------- ------------
Net Investment Activities ..........................
----- ----- ---- ----- -------- ------------- ------------
Financing Activities
Dividends paid ...................................
Capital contributions ............................
Retirement of long-term debt .....................
Issuance of common stock -
Issued by Registrant ...........................
Issued by Subsidiary to Registrant .............
Issuance of long-term debt -
Issued by Registrant ...........................
Issued by Subsidiary to Registrant .............
Issuance (Repayment) of short-term debt ..........
Other financing activities .......................
----- ----- ---- ----- -------- ------------- ------------
Net Financing Activities ...........................
----- ----- ---- ----- -------- ------------- ------------
Increase in cash and temporary cash investments ....
Cash and temporary cash investments at
beginning of year .................................
----- ----- ---- ----- -------- ------------- ------------
Cash and temporary cash investments at
end of year (a) ..................................
===== ===== ==== ===== ======== ============= ============
Supplemental Disclosures of Cash Flow Information
Cash paid for interest
Cash paid for income taxes (net of refunds)
</TABLE>
(a) The Corporation considers all highly liquid debt instruments to be cash
equivalents. Balance includes inter-company money pool balances, which are
reported as intercompany accounts receivable on the balance sheet.
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 221
F-6I (2 of 2)
COLUMBIA ENERGY GROUP AND SUBSIDIARIES
Columbia Propane Corporation and Subsidiaries
Consolidating Statement of Cash Flows
Year Ended December 31, 1999
(Not Covered by Report of Independent Public Accountants)
($ Thousands)
<TABLE>
<CAPTION>
Consolidating CPC
CPC PET CPLP CPH Combined Entries Consolidated
----- ----- ---- ----- -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Net Income Reconciliation
Net income (loss) ................................... * * * * * * *
Adjustments to reconcile net income
to net cash from continuing operations:
Loss from discontinued operations..................
Loss on disposal ..................................
Equity in undistributed earnings of subsidiaries ..
Depreciation and depletion ........................
Deferred income taxes .............................
Earnings from equity inv., net of distributions ...
Other - net .......................................
Changes in components of working capital:
Accounts receivable ...............................
Sale of accounts receivable........................
Gas inventory .....................................
Prepayments .......................................
Accounts payable ..................................
Accrued taxes .....................................
Accrued interest ..................................
Estimated rate refunds ............................
Estimated supplier obligations ....................
Under/Overrecovered gas costs .....................
Exchange gas receivable/payable....................
Other working capital .............................
----- ----- ---- ----- -------- ------------- ------------
Net Cash From Continuing Operations....................
Net Cash From Discontinued Operations..................
----- ----- ---- ----- -------- ------------- ------------
Net Cash From Operating Activities.....................
===== ===== ==== ===== ======== ============= ============
</TABLE>
*CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 222
SIGNATURE
The registrant has duly caused this 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: April 28, 2000
89
<PAGE> 223
Item 10. Continued
Exhibits filed as a part of this Report:
A - Securities Exchange Act of 1934 Reports incorporated by
reference
B - Index to Corporate Organization & By-Laws Exhibits in the
Report filed herewith and/or filed under cover of Form SE
C - Indentures or Contracts incorporated by reference
D - Tax Allocation Agreement for 1999 filed herewith
E - Other Documents Prescribed by Rule or Order
F - Report of Independent Public Accountants filed herewith
G - Financial Data Tables
H - Organizational Chart of Exempt Wholesale Generators or
Foreign Utility Holding Companies
I - Audited Financial Statements of Exempt Wholesale
Generators or Foreign Utility Holding Companies
90
<PAGE> 224
EXHIBIT A
The financial statements listed below included in Columbia Energy
Group's 1999 Form 10-K filed with the Commission on March 2, 2000
are incorporated herein by reference. The report of Arthur
Andersen LLP, independent public accountants, dated January 25,
2000 regarding such financial statements is included on Exhibit F
filed herewith. The Corporation's 1999 Annual Report to
Shareholders is filed under cover of Form SE.
Financial Statements:
<TABLE>
<CAPTION>
Annual
Report
Page
No.
---------
<S> <C>
Statements of Consolidated Income for the year ended December 31, 1999 ............... 43
Consolidated Balance Sheets as of December 31, 1999 ................................... 44-45
Consolidated Statements of Cash Flows for the year ended December 31, 1999 ............ 46
Statements of Consolidated Common Stock Equity for the year ended December 31, 1999 ... 47
Notes to Consolidated Financial Statements ............................................ 48-69
</TABLE>
<PAGE> 225
EXHIBIT B
Exhibit B. Index to corporate organization and by-laws exhibits filed pursuant
to the Public Utility Holding Company Act of 1935.
<TABLE>
<CAPTION>
Exhibit B Notes
---------------------------------
Articles of By-Laws or
Incorporation Regulations
------------- -----------
<S> <C> <C>
Columbia Energy Group........................................... 1-A, 2-A (1) (2)
Atlantic Energy, Inc............................................ (3) (4)
Columbia Atlantic Trading Corporation .......................... (5) (6)
Columbia Energy Services Corporation............................ (7) (8)
Columbia Energy Marketing Corporation ...................... (9) (10)
Columbia Energy Power Marketing Corporation................. 3-A (11) (12)
Columbia Energy Retail Corporation.......................... 4-A (13) 1-B (14)
Energy.com Corporation ..................................... (15) (16)
Columbia Service Partners, Inc.............................. (17) (18)
Columbia Assurance Agency, Inc............................ 5-A (19) (20)
Columbia Gas of Kentucky, Inc................................... (21) (22)
Columbia Gas of Maryland, Inc................................... (23) (24)
Columbia Gas of Ohio, Inc. ..................................... (25) (26)
Columbia Gas of Pennsylvania, Inc. ............................. (27) (28)
Columbia Energy Group Service Corporation ...................... (29) (30)
Columbia Gas Transmission Corporation........................... (31) (32)
Columbia Transmission Investment Corporation ............... (33) (34)
Columbia Gulf Transmission Company ............................. (35) (36)
Columbia Pipeline Corporation .................................. (37) (38)
Columbia Deep Water Services Company....................... (39) (40)
Columbia Insurance Corporation, Ltd............................. (41) (42)
Columbia LNG Corporation ....................................... 6-A (43) (44)
CLNG Corporation............................................. (45) (46)
Columbia Energy Resources, Inc................................. (47) (48)
Columbia Natural Resources, Inc............................. (49) (50)
Alamco, Inc................................................. (51) (52)
Alamco-Delaware, Inc........................................ (53) (54)
Hawg Hauling & Disposal, Inc................................ (55) (56)
Columbia Natural Resources Canada, Ltd...................... (57) (58)
Columbia Networks Services Corporation.......................... (59) (60)
CNS Microwave, Inc.......................................... (61) (62)
Energy Net L.L.C............................................ (63) (64)
Columbia Finance Corporation.................................... 7-A (65) 2-B (66)
Columbia Accounts Receivable Corporation..................... 8-A (67) 3-B (68)
Columbia Propane Corporation.................................... (69) (70)
Columbia Petroleum Corporation............................... 9-A (71) 4-B (72)
CP Holdings, Inc............................................. 10-A (73) 5-B (74)
Columbia Propane LP.......................................... 11-A, 12-A, 13-A, 14-A (75) 6-B, 7-B (76)
Columbia Gas of Virginia, Inc................................... (77) (78)
Columbia Energy Group Capital Corporation ...................... (79) (80)
TriStar Gas Technologies, Inc. ............................. (81) (82)
Columbia Transmission Communications Corporation. .......... (83) (84)
Columbia Electric Corporation................................... (85) (86)
Columbia Electric Pedrick General Corporation............... (87) (88)
Columbia Electric Pedrick Limited Corporation .............. (89) (90)
</TABLE>
<PAGE> 226
<TABLE>
<S> <C> <C>
Columbia Electric Binghamton General Corporation ........... (91) (92)
Columbia Electric Binghamton Limited Corporation ........... (93) (94)
Columbia Electric Vineland General Corporation............... (95) (96)
Columbia Electric Vineland Limited Corporation............... (97) (98)
Columbia Electric Rumford Limited Corporation................ (99) (100)
Columbia Electric Limited Holdings Corporation .............. (101) (102)
Columbia Electric Liberty Corporation........................ (103) (104)
Columbia Electric Pedrick Limited II Corporation............. 15-A (105) 8-B (106)
Columbia Electric Pedrick General II Corporation............. 16-A (107) 9-B (108)
Columbia Electric Liberty Member Corporation................. 17-A (109) 10-B (110)
Columbia Electric Gregory General Corporation................ 18-A (111) 11-B (112)
Columbia Electric Gregory Remington Corporation.............. 19-A (113) 12-B (114)
Columbia Electric Kelson Corporation......................... 20-A (115) 13-B (116)
Columbia Electric Haverstraw Corporation..................... 21-A (117) 14-B (118)
Columbia Electric Liberty Member II Corporation.............. 22-A (119) 15-B (120)
Columbia Electric Liberty II Corporation..................... 23-A (121) 16-B (122)
Unconsolidated
Columbia Capacity, LLC.................................. 24-A (123) 17-B (124)
</TABLE>
<PAGE> 227
EXHIBIT B (Continued)
NOTES:
(1) Restated Certificate of Incorporation as adopted by action
of the Board of Directors on October 19, 1988, filed as
Exhibit 1-A to Form U5S (1988); corrected copy as of July
15, 1991, filed as Exhibit 1-A to Form U5S (1991);
restated copy as of November 28, 1995, filed pursuant to
Item 14 of Form 10-K (1995); Certificate of Amendment of
Certificate of Incorporation of Columbia Energy Group,
dated January 16, 1998, filed herewith as Exhibit 1-A to
Form U5S (1997); Corrected Certificate of Amendment of
Restated Certificate of Incorporation of Columbia Energy
Group dated June 1, 1999, filed herewith as Exhibit 1-A
and Certificate of Amendment of Restated Certificate of
Incorporation of Columbia Energy Group dated June 2, 1999,
filed herewith as Exhibit 2-A to Form U5S (1999).
(2) By-Laws as of May 28, 1986, filed as Exhibit 1-B to Form
U5S (1986); amendments dated May 13, 1987 and November 18,
1987, filed as Exhibit B, pages 13-15, to Form U5S (1987);
amendment dated January 16, 1998, filed as Exhibit 1-B to
Form U5S (1998).
(3) Certificate of Incorporation of Atlantic Energy, Inc. as
amended through April 28, 1972, filed as Exhibit 1-A to
Form U5S (1981).
(4) By-Laws of Atlantic Energy, Inc. as amended through
January 20, 1982, filed as Exhibit 1-Bto Form U5S (1981);
amendment dated April 17, 1995, filed herewith as Exhibit
1-B to form U5S (1996).
(5) CAT Restated Certificate of Incorporation as filed on
February 27, 1989, filed as Exhibit 2-A to Form U5S
(1988); amendment dated August 18, 1997, filed herewith as
Exhibit 2-A to Form U5S (1997).
(6) CAT By-Laws as amended effective February 27, 1989, filed
as Exhibit 1-B to Form U5S (1988).
(7) Certificate of Incorporation of Columbia Energy Services
Corporation (formerly The Inland Gas Company, Inc.) dated
June 25, 1993, filed under cover of Form SE as Exhibit 1-B
to Form U5S (1993).
(8) By-Laws of Columbia Energy Services Corporation dated May
28, 1993, filed as Exhibit 2-B to Form U5S (1993).
(9) Certificate of Incorporation of Columbia Energy Marketing
Corporation dated August 3, 1995, filed as Exhibit 1-A to
Form U5S (1995).
(10) By-Laws of Columbia Energy Marketing Corporation dated
August 3, 1995, filed as Exhibit 1-B to Form U5S (1995).
(11) Certificate of Incorporation of Columbia Power Marketing
Corporation dated June 19, 1997 filed herewith as Exhibit
3-A and amendment changing name to Columbia Energy Power
Marketing Corporation dated March 2, 1998, filed herewith
as Exhibit 4-A to Form U5S (1997); amendment dated
January 16, 1998, filed herewith as Exhibit 3-A to Form
U5S (1999).
(12) By laws of Columbia Power Marketing Corporation as adopted
June 23, 1997 filed herewith as Exhibit 1-B to Form U5S
(1997).
(13) Certificate of Incorporation of Columbia Energy Retail
Corporation dated October 28, 1998, filed herewith as
Exhibit 4-A to Form U5S (1999).
(14) By-Laws of Columbia Energy Retail Corporation dated
December 1, 1998, filed herewith as Exhibit 1-B to Form
U5S (1999).
<PAGE> 228
(15) Certificate of Incorporation of Energy.com Corporation
dated December 15, 1997, filed as Exhibit 1-A to Form U5S
(1998).
(16) By-Laws of Energy.com Corporation dated January 5, 1998,
filed as Exhibit 2-B to Form U5S (1998).
(17) Certificate of Incorporation of Columbia Service Partners,
Inc. dated March 21, 1996 file herewith as Exhibit 1-A to
Form U5S (1996).
(18) By laws of Columbia Service Partners, Inc. as adopted
April 17, 1996 file herewith as Exhibit 2-B to Form U5S
(1996).
(19) Article of Incorporation of Columbia Assurance Agency,
Inc., dated June 23, 1997, filed as Exhibit 2-A to Form
U5S (1998); amendment dated May 3, 1999, filed herewith as
Exhibit 5-A to Form U5S (1999).
(20) Code of Regulations of Columbia Assurance Agency, Inc.,
dated July 30, 1997, filed as Exhibit 3-B to Form U5S
(1998).
(21) Articles of Incorporation, as amended to January 1, 1958,
filed as Exhibit 2-A to Form U5S (1957); amendment dated
December 21, 1981, filed as Exhibit 3-A to Form U5S
(1981); amendment dated November 15, 1988, filed as
Exhibit 2-A to Form U5S (1988); amendment dated March 13,
1995, filed as Exhibit 2-A to Form U5S (1995); amendment
dated February 15, 1995, filed as Exhibit 3-A to Form U5S
(1995); amendment dated January 12, 1996, filed as Exhibit
4-A to Form U5S (1995).
(22) By-Laws, as amended to September 1, 1968, filed as Exhibit
4-B to Form U5S (1968); amendment dated June 16, 1970,
filed as Exhibit 4-B to Form U5S (1970); amendment dated
September 24, 1975, filed as Exhibit 1-B to Form U5S
(1975); amendment dated May 4, 1977, filed as Exhibit 3-B
to Form U5S (1977); amendment dated May 1, 1985, filed as
Exhibit 2-B to Form U5S (1985); amendment dated December
8, 1988, filed as Exhibit 3-B to Form U5S (1988);
amendment dated June 15, 1989, filed as Exhibit 1-B to
Form U5S (1989); amendment dated January 9, 1996 filed as
Exhibit 2-B to Form U5S (1995); amendment dated November
1, 1997, filed herewith as Exhibit 2-B to Form U5S (1997).
(23) Certificate of Incorporation as adopted July 1, 1958,
filed as Exhibit 1-A to Form U5S (1961); amendment dated
January 17, 1980, filed as Exhibit 1-A to Form U5S (1979);
amendment dated February 15, 1995 filed as Exhibit 5A to
Form U5S (1995).
(24) By-Laws, as amended to May 2, 1972, filed as Exhibit 4-B
to Form U5S (1972); amendment dated May 1, 1985, filed as
Exhibit 3-B to Form U5S (1985); amendment dated December
8, 1988, filed as Exhibit 4-B to Form U5S (1988);
amendment dated June 15, 1989, filed as Exhibit 2-B to
Form U5S (1989); amendment dated January 9, 1996 filed as
Exhibit 3-B to Form U5S (1995); amendment dated June 30,
1997, filed herewith as Exhibit 3-B and amendment dated
November 1, 1997, filed herewith as Exhibit 4-B to Form
U5S (1997).
(25) Articles of Incorporation as adopted October 6, 1961,
filed as Exhibit 1-A to Form U5S (1964); amendment dated
December 27, 1963, filed as Exhibit 2-A to Form U5S
(1964); amendment dated February 21, 1964, filed as
Exhibit 3-A to Form U5S (1964); Certificate of Merger of
Columbia Gas of Ohio, Inc. and The Ohio Valley Gas Company
effective December 31, 1974, filed as Exhibit 5-A to Form
U5S (1974); amendment dated January 8, 1982, filed as
Exhibit 2-A to Form U5S (1982); amendment dated February
16, 1995, filed as exhibit 6-A to Form U5S (1995).
<PAGE> 229
(26) Regulations as adopted October 16, 1961, filed as Exhibit
2-B to Form U5S (1964); amendment dated August 19, 1968,
filed as Exhibit 5-B to Form U5S (1968); amendment dated
May 1, 1985, filed as Exhibit 5-B to Form U5S (1985);
amendment dated December 9, 1985, filed as Exhibit 6-B to
Form U5S (1985); amendment dated December 8, 1988, filed
as Exhibit 6-B to Form U5S (1988); amendment dated June
15, 1989, filed as Exhibit 4-B to Form U5S (1989);
amendment dated January 9, 1996, filed as Exhibit 4-B to
Form U5S (1995); amendment dated November 1, 1997, filed
herewith as Exhibit 5-B to Form U5S (1997).
(27) Articles of Incorporation as adopted during the year 1960,
filed as Exhibit 1-A to Form U5S (1962); amendment dated
December 21, 1981, filed as Exhibit 4-A to Form U5S
(1981); amendment dated February 15, 1995, filed as
Exhibit 7-A to Form U5S (1995).
(28) By-Laws, as amended to May 2, 1972, filed as Exhibit 6-B
to Form U5S (1972); amendment dated May 1, 1985, filed as
Exhibit 7-B to Form U5S (1985); amendment dated December
8, 1988, filed as Exhibit 7-B to Form U5S (1988);
amendment dated June 15, 1989, filed as Exhibit 5-B to
Form U5S (1989); amendment dated January 9, 1996, filed as
Exhibit 5-B to Form U5S (1995); amendment dated November
1, 1997, filed herewith as Exhibit 6-B to Form U5S (1997).
(29) Certificate of Incorporation, as amended through May 17,
1991, filed as Exhibit 3-A to Form U5S (1991); amendment
dated June 30, 1997, filed herewith as Exhibit 5-A to Form
U5S (1997); amendment dated January 16, 1998, filed
herewith as Exhibit 3-A to Form U5S (1998).
(30) By-Laws, as amended February 10, 1988, filed as Exhibit
8-B to Form U5S (1988); amendment dated December 29, 1997,
filed herewith as Exhibit 7-B to Form U5S (1997).
(31) Restated Certificate of Incorporation of Columbia Gas
Transmission Corporation dated March 3, 1982, filed as
Exhibit 3-A to Form U5S (1982); amendment dated October
22, 1984, filed as Exhibit 3-A to Form U5S (1984);
Certificate of Merger of Commonwealth Gas Pipeline Corp.
into Columbia Gas Transmission Corp. dated October 26,
1990, filed as Exhibit 1-A to Form U5S (1990); amendment
dated November 28, 1995, filed herewith as Exhibit 6-A and
amendment dated June 30, 1997, filed herewith as Exhibit
7-A to Form U5S (1997).
(32) By-Laws of Columbia Gas Transmission Corporation as
amended through May 9, 1991, filed as Exhibit 1-B to Form
U5S (1991); amendment dated January 17, 1996, file
herewith as Exhibit 3-B to Form U5S (1996).
(33) Certificate of Incorporation as adopted March 18, 1992,
filed as Exhibit 4-A to Form U5S (1991).
(34) By-Laws as of March 18, 1992, filed as Exhibit 4-B to Form
U5S (1991).
(35) Certificate of Incorporation as adopted May 26, 1958,
filed as Exhibit 3-A to Form U5S (1958); amendment dated
November 10, 1981, filed as Exhibit 6-A to Form U5S
(1981); amendment dated December 23, 1994, filed as
Exhibit 2-A to Form U5S (1994); amendment dated June 30,
1997, filed herewith as Exhibit 8-A to Form U5S (1997).
(36) By-Laws of Columbia Gulf Transmission Company as amended
through May 9, 1991, filed as Exhibit 2-B to Form U5S
(1991); amendment dated January 17, 1996, file herewith as
Exhibit 4B to Form U5S (1996).
(37) Certificate of Incorporation of Columbia Pipeline
Corporation dated October 13, 1998, filed as Exhibit 4-A
to Form U5S (1998).
(38) By-Laws of Columbia Pipeline Corporation dated November 1,
1998, filed as Exhibit 4-B to Form U5S (1998).
(39) Certificate of Incorporation of Columbia Deep Water
Services Company dated January 7, 1998, filed as Exhibit
5-A to Form U5S (1998).
<PAGE> 230
(40) By-Laws of Columbia Deep Water Services Company dated
January 8, 1998, filed as Exhibit 5-B to Form U5S (1998).
(41) Certificate of Incorporation of Columbia Insurance
Corporation, Ltd. dated November 1, 1996, filed herewith
as Exhibit 2-A to Form U5S (1996).
(42) By-laws of Columbia Insurance Corporation, Ltd. as adopted
November 4, 1996, file herewith as Exhibit 5-B to Form U5S
(1996).
(43) Restated Certificate of Incorporation of Columbia LNG
Corporation as amended to December 18, 1989, filed as
Exhibit 18-A to Form U5S (1989); amendments dated January
31, 1992, November 2, 1992, June 13, 1994 and April 13,
1995 filed as Exhibits 3-A-1, 3-A-2, 3-A-3 and 3-A-4,
respectively to Form U5S; amendment dated January 15,
1997, filed herewith as Exhibit 9-A to Form U5S (1997;
Unanimous Written Consent in Lieu of an Organizational
Meeting of the Board of Directors dated July 10, 1998,
filed herewith as Exhibit 6-A to Form U5S (1999).
(44) By-Laws of Columbia LNG Corporation as amended through
October 10, 1990, filed as Exhibit 1-B to Form U5S (1990);
amendment dated July 27, 1992, filed as Exhibit 3-B to
Form U5S (1992); amendment dated December 21, 1994 filed
as Exhibit 1-B to Form U5S (1994); amendment dated October
17, 1995 and amendment dated June 1, 1996, filed herewith
as Exhibits 6B and 7B to Form U5S (1996).
(45) Certificate of Incorporation of CLNG Corporation as
adopted January 21, 1994, filed as Exhibit 4-A to Form U5S
(1994).
(46) By-Laws of CLNG Corporation as amended through December
21, 1994 filed as Exhibit -B to Form U5S (1994).
(47) Certificate of Amendment of Certificate of Incorporation
of Columbia Natural Resources, Inc. (changing name to
Columbia Energy Resources, Inc.) dated September 28, 1998,
filed as Exhibit 6-A to Form U5S (1998).
(48) By-Laws of Columbia Energy Resources, Inc. dated September
30, 1998, filed as Exhibit 6-B to Form U5S (1998).
(49) Certificate of Incorporation of Columbia Natural
Resources, Inc. adopted on November 21, 1984, filed as
Exhibit 4-A to Form U5S (1984).
(50) By-Laws as of November 26, 1984, filed as Exhibit 2-B to
Form U5S (1984).
(51) Amended and Restated Certificate of Incorporation of
Alamco, Inc. dated August 7, 1997, filed herewith as
exhibit 10-A to Form U5S (1997); Alamco, Inc. merged with
and into Columbia Natural Resources, Inc., on October 1,
1998.
(52) Amended and Restated Bylaws of Alamco, Inc. as adopted
August 7, 1997, filed herewith as Exhibit 8-B to Form U5S
(1997).
(53) Certificate of Incorporation of Alamco-Delaware, dated
July 21, 1994, filed herewith as Exhibit 11-A to Form U5S
(1997).
(54) By-Laws of Alamco-Delaware filed as Exhibit 9-B to Form
U5S (1997).
(55) Certificate of Incorporation of Hawg Hauling & Disposal,
Inc. dated March 17, 1993, filed herewith as Exhibit 12-A
to Form U5S (1997.
<PAGE> 231
(56) By-Laws of Hawg Hauling & Disposal, Inc. dated March 17,
1993, filed herewith as Exhibit 10-B to Form U5S (1997.
(57) Article of Incorporation of 758117 Alberta Ltd. dated
October 6, 1997, filed as Exhibit 7-A and amendment
changing name to Columbia Natural Resources Canada, Ltd.,
dated December 12, 1997, filed as Exhibit 8-A to Form U5S
(1998).
(58) By-laws of 758117 Alberta Ltd., dated December 12, 1997,
filed as Exhibit 7-B to Form U5S (1998).
(59) Certificate of Incorporation of Columbia Network Services
Corporation dated June 7, 1996, filed herewith as Exhibit
3-A Form U5S (1996).
(60) By-Laws of Columbia Network Services Corporation as
adopted August 29, 1996, filed herewith as Exhibit 8-B to
Form U5S (1996).
(61) Certificate of Incorporation of CNS Microwave Inc., dated
October 15, 1996, filed herewith as Exhibit 4-A to Form
U5S (1996).
(62) By-Laws of CNS Microwave, Inc. as adopted October 25,
1996, filed herewith as Exhibit 9-B to Form U5S (1996).
(63) Certificate Formation of EnergyNet, L.L.C., dated June 13,
1997, filed herewith as Exhibit 13-A to Form U5S (1997) .
(64) By-Laws of EnergyNet, L.L.C., dated June 13, 1997, filed
herewith as Exhibit 11-B to Form U5S (1997).
(65) Certificate of Incorporation of Columbia Finance
Corporation dated November 5, 1998, filed herewith as
Exhibit 7-A to Form U5S (1999).
(66) By-Laws of Columbia Finance Corporation dated November 5,
1998, filed herewith as Exhibit 2-B to Form U5S (1999).
(67) Certificate of Incorporation of Columbia Accounts
Receivable Corporation dated November 5, 1998, filed
herewith as Exhibit 8-A to Form U5S (1999).
(68) By-Laws of Columbia Accounts Receivable Corporation dated
November 5, 1998, filed herewith as Exhibit 3-B to Form
U5S (1999).
(69) Certificate of Incorporation as adopted August 19, 1957,
filed as Exhibit 3-A to Form U5S (1959); amendment dated
December 18, 1989, filed as Exhibit 1-A to Form U5S
(1989); Certificate of Merger of CPI with and into CPC
dated October 1, 1997, filed herewith as Exhibit 14-A and
amendment dated October 1, 1997, filed herewith as Exhibit
15-A to Form U5S (1997).
(70) By-Laws, as amended to December 4, 1957, filed as Exhibit
4-B to Form U5S (1959); amendment dated May 31, 1966,
filed as Exhibit 2-B to Form U5S (1966); amendment dated
August 3, 1967, filed as Exhibit 4-B to Form U5S (1967);
amendment dated October 3, 1968, filed as Exhibit 6-B to
Form U5S (1968); amendment dated February 4, 1971, filed
as Exhibit 4-B to Form U5S (1971); amendment dated March
11, 1981, filed as Exhibit 2-B to Form U5S (1981);
amendment dated June 14, 1989, filed as Exhibit 8-B to
Form U5S (1989); amendment dated October 1, 1997, filed as
Exhibit 12-B to Form U5S (1997).
(71) Certificate of Incorporation of Columbia Petroleum
Corporation dated March 12, 1999, filed herewith as
Exhibit 9-A to Form U5S (1999).
<PAGE> 232
(72) By-Laws of Columbia Petroleum Corporation dated March 12,
1999, filed herewith as Exhibit 4-B to Form U5S (1999).
(73) Certificate of Incorporation of CP Holdings, Inc. dated
March 23, 1999, filed herewith as Exhibit 10-A to Form U5S
(1999).
(74) By-Laws of CP Holdings, Inc. dated March 23, 1999, filed
herewith as Exhibit 5-B to Form U5S (1999).
(75) Certificate of Limited Partnership of Columbia Propane,
L.P. dated March 25, 1999, filed herewith as Exhibit 11-A,
Certificate of Merger of National Propane Partner, L.P.
into Columbia Propane, L.P. dated July 19, 1999, filed
herewith as Exhibit 12-A, Certificate of Cancellation of
Certificate of Limited Partnership of Columbia Propane
L.P. dated August 16, 1999, filed herewith as Exhibit 13-A
and Certificate of Amendment of Certificate of Limited
Partnership of National Propane, L.P. dated August 17,
1999, filed herewith as Exhibit 14-A to Form U5S (1999).
(76) Agreement of Limited Partnership of Columbia Propane, L.P.
dated March 30, 1999, filed herewith as Exhibit 6-B and
Amended and Restated Agreement of Limited Partnership of
National Propane dated June 21, 1999, filed herewith as
Exhibit 7-B to Form U5S (1999).
(77) Certificate of Incorporation of Commonwealth Gas Services,
Inc. as amended through December 19, 1958, and including
the Certificate of Merger dated December 18, 1979, filed
as Exhibit 8-A to Form U5S (1981); amendment dated
December 30, 1987, filed as Exhibit B, page 17, to Form
U5S (1987); amendment dated February 15, 1995, filed as
Exhibit 8-A to Form U5S (1995); amendment dated January
16, 1998, filed herewith as Exhibit 16-A to Form U5S
(1997).
(78) By-Laws of Commonwealth Gas Services, Inc. as amended
through March 5, 1985, filed as Exhibit 9-B to Form U5S
(1985); amendment dated April 21, 1986, filed as Exhibit
6-B to Form U5S (1986); amendment dated April 20, 1987,
filed as Exhibit B, page 18, to Form U5S (1987); amendment
dated January 1, 1989, filed as Exhibit 9-B to Form U5S
(1988); amendment dated June 15, 1989, filed as Exhibit
9-B to Form U5S (1989); amendment dated May 6, 1991, filed
as Exhibit 3-B to Form U5S (1991); amendment dated
December 7, 1992, filed as Exhibit 2-B to Form U5S
(1992);amendment dated November 1, 1997, filed herewith as
Exhibit 13-B to Form U5S (1997).
(79) Certificate of Incorporation of TriStar Capital
Corporation dated August 2, 1990, filed as Exhibit 2-A to
Form U5S (1990); amendment dated June 30, 1997, filed
herewith as Exhibit 17-A to Form U5S (1997); amendment
changing name to Columbia Energy Group Capital Corporation
dated June 2, 1998, filed herewith as Exhibit 9-A to Form
U5S (1998).
(80) By-Laws of TriStar Capital Corporation dated August 2,
1990, filed as Exhibit 4-B to Form U5S (1990).
(81) Certificate of Incorporation of TriStar Gas Technologies,
Inc. dated August 2, 1990, filed as Exhibit 3-A to Form
U5S (1990).
(82) By-Laws of TriStar Gas Technologies, Inc. dated August 2,
1990, filed as Exhibit 5-B to Form U5S (1990).
(83) Certificate of Incorporation of Columbia Energy
Telecommunications Company dated April 17, 1998 filed as
Exhibit 10-A and amendment changing name to Columbia
Transmission Communications Corporation, dated September
24, 1997 filed as Exhibit 11-A to Form U5S (1998).
(84) By-Laws of Columbia Energy Telecommunications Company
dated May 11, 1998, filed as Exhibit 8-B to Form U5S
(1998).
<PAGE> 233
(85) Restated Certificate of Incorporation of TriStar Ventures
Corporation as of July 22, 1986, filed as Exhibit 2-A to
Form U5S (1986); amendment dated June 1, 1997, filed
herewith as Exhibit 18-A and amendment changing name to
Columbia Electric Corporation dated January 16, 1998,
filed herewith as Exhibit 19-A to Form U5S (1997).
(86) By-Laws as of March 22, 1984, filed as Exhibit 1-B to Form
U5S (1984); amended to change the name from Columbia Gas
Brokerage Corporation to TriStar Ventures Corporation by
the Consent to Action in Lieu of a Special Meeting of the
Board of Directors dated July 11, 1986, filed as Exhibit
10-B to Form U5S (1986).
(87) Certificate of Incorporation of TriStar CPA Corporation
dated April 29, 1988, filed as Exhibit 2-A to Form U5S
(1989); amendment changing name to TriStar Pedrick General
Corporation, dated August 2, 1989, filed as Exhibit 3-A to
Form U5S (1989); amendment changing name to Columbia
Electric Pedrick General Corporation dated August 4, 1998,
filed as Exhibit 13-A to Form U5S (1998).
(88) By-Laws of TriStar CPA Corporation (name later changed to
TriStar Pedrick General Corporation) dated April 29, 1988,
filed as Exhibit 14-B to Form U5S (1989).
(89) Certificate of Incorporation of TriStar Rumford
Corporation dated April 29, 1988, filed as Exhibit 4-A to
Form U5S (1989); amendment changing name to TriStar
Pedrick Limited Corporation, dated August 2, 1989, filed
as Exhibit 5-A to Form U5S (1989); amendment changing name
to Columbia Electric Pedrick Limited Corporation, dated
August 4, 1998, filed as Exhibit 14-A to Form U5S (1998).
(90) By-Laws of TriStar Rumford Corporation (name later changed
to TriStar Pedrick Limited Corporation) dated April 29,
1988, filed as Exhibit 15-B to Form U5S (1989).
(91) Certificate of Incorporation of TVC Two Corporation dated
December 28, 1989, filed as Exhibit 7-A to Form U5S
(1989); amendment changing name to TriStar Binghamton
General Corporation, dated May 8, 1990, filed as Exhibit
6-A to Form U5S (1990); amendment changing name to
Columbia Electric Binghamton General Corporation, dated
August 4, 1998, filed as Exhibit 16-A to Form U5S (1998).
(92) By-Laws of TVC Two Corporation (name later changed to
TriStar Binghamton General Corporation) dated December 28,
1989, filed as Exhibit 17-B to Form U5S (1989).
(93) Certificate of Incorporation of TVC Three Corporation
dated December 28, 1989, filed as Exhibit 8-A to Form U5S
(1989); amendment changing name to TriStar Binghamton
Limited Corporation, dated May 8, 1990, filed as Exhibit
7-A to Form U5S (1990); amendment changing name to
Columbia Electric Binghamton Limited Corporation, dated
August 4, 1998, filed as Exhibit 17-A to Form U5S (1998).
(94) By-Laws of TVC Three Corporation (name later changed to
TriStar Binghamton Limited Corporation) dated December 28,
1989, filed as Exhibit 18-B to Form U5S (1989).
(95) Certificate of Incorporation of TVC Six Corporation dated
December 28, 1989, filed as Exhibit 11-A to Form U5S
(1989); amendment changing name to TriStar Vineland
General Corporation, dated May 8, 1990, filed as Exhibit
10-A to Form U5S (1990); amendment changing name to
Columbia Electric Vineland General Corporation, dated
August 4, 1998, filed as Exhibit 20-A to Form U5S (1998).
(96) By-Laws of TVC Six Corporation (name later changed to
TriStar Vineland General Corporation) dated December 28,
1989, filed as Exhibit 21-B to Form U5S (1989).
<PAGE> 234
(97) Certificate of Incorporation of TVC Seven Corporation
dated December 28, 1989, filed as Exhibit 12-A to Form U5S
(1989); amendment changing name to TriStar Vineland
Limited Corporation, dated May 8, 1990, filed as Exhibit
11-A to Form U5S (1990); amendment changing name to
Columbia Electric Vineland Limited Corporation, dated
August 4, 1998, filed as Exhibit 21-A to Form U5S (1998).
(98) By-Laws of TVC Seven Corporation (name later changed to
TriStar Vineland Limited Corporation) dated December 28,
1989, filed as Exhibit 22-B to Form U5S (1989).
(99) Certificate of Incorporation of TVC Eight Corporation
dated December 28, 1989, filed as Exhibit 13-A to Form U5S
(1989); amendment changing name to TriStar Rumford Limited
Corporation, dated September 26, 1990, filed as Exhibit
12-A to Form U5S (1990); amendment changing name to
Columbia Electric Rumford Limited Corporation, dated
August 4, 1998, filed as Exhibit 22-A to Form U5S (1998).
(100) By-Laws of TVC Eight Corporation (name later changed to
TriStar Rumford Limited Corporation) dated December 28,
1989, filed as Exhibit 23-B to Form U5S (1989).
(101) Certificate of Incorporation of TVC Nine Corporation dated
December 28, 1989, filed as Exhibit 14-A to Form U5S
(1989); amendment changing name to Columbia Electric
Limited Holdings Corporation, dated August 4, 1998, filed
as Exhibit 23-A to Form U5S (1998).
(102) By-Laws of TVC Nine Corporation dated December 28, 1989,
filed as Exhibit 24-B to Form U5S (1989).
(103) Certificate of Incorporation of TVC Ten Corporation dated
December 28, 1989, filed as Exhibit 15-A to Form U5S
(1989); amendment changing name to Columbia Electric
Liberty Corporation, date August 4, 1998, filed as Exhibit
24-A to Form U5S (1998).
(104) By-Laws of TVC Ten Corporation dated December 28, 1989,
filed as Exhibit 25-B to Form U5S (1989).
(105) Certificate of Incorporation of Columbia Electric Pedrick
Limited II Corporation dated November 29, 1999, filed
herewith as Exhibit 15-A to Form U5S (1999).
(106) By-Laws of Columbia Electric Pedrick Limited II
Corporation dated November 29, 1999, filed herewith as
Exhibit 8-B to Form U5S (1999).
(107) Certificate of Incorporation of Columbia Electric Pedrick
General II Corporation dated November 30, 1999, filed
herewith as Exhibit 16-A to Form U5S (1999).
(108) By-Laws of Columbia Electric Pedrick General II
Corporation dated November 30, 1999, filed herewith as
Exhibit 9-B to Form U5S (1999).
(109) Certificate of Incorporation of Columbia Electric Liberty
Member Corporation dated December 23, 1999, filed herewith
as Exhibit 17-A to Form U5S (1999).
(110) By-Laws of Columbia Electric Liberty Member Corporation
dated December 23, 1999, filed herewith as Exhibit 10-B to
Form U5S (1999).
(111) Certificate of Incorporation of Columbia Electric Gregory
General Corporation dated May 21, 1998, filed herewith as
Exhibit 18-A to Form U5S (1999).
(112) By-Laws of Columbia Electric Gregory General Corporation
dated May 21, 1998, filed herewith as Exhibit 11-B to Form
U5S (1999).
<PAGE> 235
(113) Certificate of Incorporation of Columbia Electric Gregory
Remington Corporation dated May 21, 1998, filed herewith
as Exhibit 19-A to Form U5S (1999).
(114) By-Laws of Columbia Electric Gregory Remington Corporation
dated May 21, 1998, filed herewith as Exhibit 12-B to Form
U5S (1999).
(115) Certificate of Incorporation of Columbia Electric Kelson
Corporation dated November 10, 1999, filed herewith as
Exhibit 20-A to Form U5S (1999).
(116) By-Laws of Columbia Electric Kelson Corporation dated
November 10, 1999, filed herewith as Exhibit 13-B to Form
U5S (1999).
(117) Certificate of Incorporation of Columbia Electric
Haverstraw Corporation dated September 14, 1999, filed
herewith as Exhibit 21-A to Form U5S (1999).
(118) By-Laws of Columbia Electric Haverstraw Corporation dated
September 14, 1999, filed herewith as Exhibit 14-B to Form
U5S (1999).
(119) Certificate of Incorporation of Columbia Electric Liberty
Member II Corporation dated September 14, 1999, filed
herewith as Exhibit 22-A to Form U5S (1999).
(120) By-Laws of Columbia Electric Liberty Member II Corporation
dated September 14, 1999, filed herewith as Exhibit 15-B
to Form U5S (1999).
(121) Certificate of Incorporation of Columbia Electric Liberty
II Corporation dated September 14, 1999, filed herewith as
Exhibit 23-A to Form U5S (1999).
(122) By-Laws of Columbia Electric Liberty II Corporation dated
September 14, 1999, filed herewith as Exhibit 16-B to Form
U5S (1999).
(123) Certificate of Formation of Columbia Capacity, LLC dated
August 11, 1999, filed herewith as Exhibit 24-A to Form
U5S (1999).
(124) Limited Liability Company Agreement of Columbia Capacity,
LLC dated August 11, 1999, filed herewith as Exhibit 17-B
to Form U5S (1999).
<PAGE> 236
EXHIBIT C
(a) *Reference is made to Columbia Energy Group's 1999 Form 10- K,
pages 74 through 76, filed with the Commission on March 2, 2000,
for the indentures and other fundamental documents defining the
rights of security holders.
*Incorporated herein by reference.
<PAGE> 237
EXHIBIT D
A copy of the System Tax Allocation Agreement (Agreement) is filed
herewith as Exhibit D to Form U5S (1999).
<PAGE> 238
EXHIBIT E
Copies of other documents prescribed by rule or order.
The Registrant's Chart of Accounts was filed on November 24, 1975,
as Amendment No. 1 to Form U5S (1974), modified by Amendment No. 1
to Form U5S (1980), filed on July 10, 1981, and by Amendment No. 1
to Form U5S (1981), filed on September 24, 1982. No changes, other
than those required by the Federal Energy Regulatory Commission,
occurred during the year 1996.
Columbia's personnel policy of general application, permitting
retirees to secure subsidiary contingent tax liabilities relating
to Pension Restoration Plan distributions, effective as of
December 1, 1993, filed as Exhibit E to Form U5S (1993), is
incorporated herein by reference.
<PAGE> 239
EXHIBIT F
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Shareholders of Columbia Energy Group:
We have audited the consolidated balance sheets of Columbia Energy Group (a
Delaware corporation, the "Corporation") and subsidiaries as of December 31,
1999 and 1998, and the related statements of consolidated income, cash flows and
common stock equity for each of the three years in the period ended December 31,
1999. These financial statements are the responsibility of the Corporation's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of the Corporation and
subsidiaries as of December 31, 1999 and 1998, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1999, in conformity with generally accepted accounting principles.
ARTHUR ANDERSEN LLP
New York, New York
January 25, 2000
<PAGE> 240
EXHIBIT G
Financial Data Tables are filed herewith as Exhibit 27.
<PAGE> 241
EXHIBIT H
Organizational Chart of Exempt Wholesale Generators
CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 242
EXHIBIT I
Audited Financial Statements of Exempt Wholesale Generators
CONFIDENTIAL TREATMENT REQUESTED
<PAGE> 1
COLUMBIA ENERGY GROUP
FORM U5S ANNUAL REPORT
FOR THE YEAR ENDED DECEMBER 31, 1999
EXHIBITS
<PAGE> 2
COLUMBIA ENERGY GROUP
FORM U5S ANNUAL REPORT
FOR THE YEAR ENDED DECEMBER 31, 1999
EXHIBITS
Exhibit 1-A: Corrected Certificate of Amendment of Restated Certificate of
Incorporation of Columbia Energy Group dated June 1, 1999.
Exhibit 2-A: Certificate of Amendment of Restated Certificate of
Incorporation of Columbia Energy Group dated June 2, 1999.
Exhibit 3-A: Certificate of Amendment of Certificate of Incorporation of
Columbia Power Marketing Corporation dated January 16, 1998.
Exhibit 4-A: Certificate of Incorporation of Columbia Energy Retail
Corporation dated October 28, 1998.
Exhibit 5-A: Amendment of Articles of Incorporation of Columbia Assurance
Agency, Inc. dated May 3, 1999.
Exhibit 6-A: Unanimous Written Consent in Lieu of an Organizational Meeting
of the Board of Directors of Columbia LNG Corporation dated
July 10, 1998.
Exhibit 7-A: Certificate of Incorporation of Columbia Finance Corporation
dated November 5, 1998.
Exhibit 8-A: Certificate of Incorporation of Columbia Accounts Receivable
Corporation dated November 5, 1998.
Exhibit 9-A: Certificate of Incorporation of Columbia Petroleum Corporation
dated March 12, 1999.
Exhibit 10-A: Certificate of Incorporation of CP Holdings, Inc. dated March
23, 1999.
Exhibit 11-A: Certificate of Limited Partnership of Columbia Propane, L.P.
dated March 25, 1999.
Exhibit 12-A: Certificate of Merger of National Propane Partner, L.P. into
Columbia Propane, L.P. dated July 19, 1999.
Exhibit 13-A: Certificate of Cancellation of Certificate of Limited
Partnership of Columbia Propane, L.P. dated August 16, 1999.
<PAGE> 3
Exhibit 14-A: Certificate of Amendment of Certificate of Limited Partnership
of National Propane, L.P. dated August 17, 1999.
Exhibit 15-A: Certificate of Incorporation of Columbia Electric Pedrick
Limited II Corporation dated November 29, 1999.
Exhibit 16-A: Certificate of Incorporation of Columbia Electric Pedrick
General II Corporation dated November 30, 1999.
Exhibit 17-A: Certificate of Incorporation of Columbia Electric Liberty
Member Corporation dated December 23, 1999.
Exhibit 18-A: Certificate of Incorporation of Columbia Electric Gregory
General Corporation dated May 21, 1998.
Exhibit 19-A: Certificate of Incorporation of Columbia Electric Gregory
Remington Corporation dated May 21, 1998.
Exhibit 20-A: Certificate of Incorporation of Columbia Electric Kelson
Corporation dated November 10, 1999.
Exhibit 21-A: Certificate of Incorporation of Columbia Electric Haverstraw
Corporation dated September 14, 1999.
Exhibit 22-A: Certificate of Incorporation of Columbia Electric Liberty
Member II Corporation dated September 14, 1999.
Exhibit 23-A: Certificate of Incorporation of Columbia Electric Liberty II
Corporation dated September 14, 1999.
Exhibit 24-A: Certificate of Formation of Columbia Capacity, LLC dated
August 11, 1999.
Exhibit 1-B: By-Laws of Columbia Energy Retail Corporation dated December
1, 1998.
Exhibit 2-B: By-Laws of Columbia Finance Corporation dated November 5,
1998.
Exhibit 3-B: By-Laws of Columbia Accounts Receivable Corporation dated
November 5, 1998.
Exhibit 4-B: By-Laws of Columbia Petroleum Corporation dated March 12,
1999.
Exhibit 5-B: By-Laws of CP Holdings, Inc. dated March 23, 1999.
Exhibit 6-B: Agreement of Limited Partnership of Columbia Propane, L.P.
dated March 30, 1999.
<PAGE> 4
Exhibit 7-B: Amended and Restated Agreement of Limited Partnership of
National Propane dated June 21, 1999.
Exhibit 8-B: By-Laws of Columbia Electric Pedrick Limited II Corporation
dated November 29, 1999.
Exhibit 9-B: By-Laws of Columbia Electric Pedrick General II Corporation
dated November 30, 1999.
Exhibit 10-B: By-Laws of Columbia Electric Liberty Member Corporation dated
December 23, 1999.
Exhibit 11-B: By-Laws of Columbia Electric Gregory General Corporation dated
May 21, 1998.
Exhibit 12-B: By-Laws of Columbia Electric Gregory Remington Corporation
dated May 21, 1998.
Exhibit 13-B: By-Laws of Columbia Electric Kelson Corporation dated November
10, 1999.
Exhibit 14-B: By-Laws of Columbia Electric Haverstraw Corporation dated
September 14, 1999.
Exhibit 15-B: By-Laws of Columbia Electric Liberty Member II Corporation
dated September 14, 1999.
Exhibit 16-B: By-Laws of Columbia Electric Liberty II Corporation dated
September 14, 1999.
Exhibit 17-B: Limited Liability Company Agreement of Columbia Capacity, LLC
dated August 11, 1999.
Exhibit D: Tax Allocation dated 1999.
Exhibit 27: Financial Data Tables.
<PAGE> 5
Exhibit 1-A
Page 1 of 1
CORRECTED CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF COLUMBIA ENERGY GROUP
The Corporation hereby files this Corrected Certificate of Amendment
pursuant to Section 103 of the General Corporation Law of the State of Delaware
correcting the statement regarding the deletion and substitution of text to be
made in the first paragraph of Article IV of the Restated Certificate of
Incorporation, which statement is contained in the second paragraph, FIRST
section of the Certificate of Amendment of Restated Certificate of Incorporation
filed on May 28, 1999 as follows:
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF COLUMBIA ENERGY GROUP
Columbia Energy Group (the "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, at a meeting
duly held, adopted a resolution proposing and declaring advisable the following
amendment to the Restated Certificate of Incorporation of said corporation:
RESOLVED, that the Board of Directors of the Corporation hereby finds
it advisable that the Restated Certificate of Incorporation of the Corporation
be amended to delete in its entirety the first paragraph of Article IV and to
insert in lieu thereof the following paragraph:
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Two hundred forty
million (240,000,000), of which Forty million (40,000,000)
shares, of the par value of One cent ($.01) each, are to be of
a class designated Preferred Stock and Two hundred million
(200,000,000) shares, of the par value of One cent ($.01)
each, are to be of a class designated Common Stock.
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of the stockholders of said corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware at which meeting the necessary number
of shares as required by statute were voted in favor of the amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this certificate to be
signed by Carolyn McKinney Afshar, its Secretary, this 1st day of June, 1999.
--------------------------------
By: Secretary
<PAGE> 6
Exhibit 2-A
Page 1 of 1
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF COLUMBIA ENERGY GROUP
Columbia Energy Group (the "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, at a meeting
duly held, adopted a resolution proposing and declaring advisable the following
amendment to the Restated Certificate of Incorporation of said corporation:
RESOLVED, that the Restated Certificate of Incorporation of Columbia
Energy Group be amended by deleting in its entirety the first paragraph of
Article IV thereof so that, as amended, said Article shall be and read as
follows:
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Two hundred forty
million (240,000,000), of which Forty million (40,000,000)
shares, of the par value of One cent ($.01) each, are to be of
a class designated Preferred Stock and Two hundred million
(200,000,000) shares, of the par value of One cent ($.01)
each, are to be of a class designated Common Stock.
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of the stockholders of said corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware at which meeting the necessary number
of shares as required by statute were voted in favor of the amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this certificate to be
signed by Carolyn McKinney Afshar, its Secretary, this __________ day of
_________________________, 1999.
_________________________________
By: Secretary
<PAGE> 7
Exhibit 3-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
RESOLVED, that after approval of such amendment by the
stockholders
<PAGE> 8
Exhibit 3-A
Page 2 of 2
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:
--------------------------
President
ATTEST:
-----------------------------
Assistant Secretary
<PAGE> 9
Exhibit 4-A
Page 1 of 3
CERTIFICATE OF INCORPORATION
OF
COLUMBIA ENERGY RETAIL CORPORATION
* * *
FIRST. The name of the Corporation is COLUMBIA ENERGY RETAIL
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 Twenty Thousand (20,000) all of
which are to have a par value of Ten Dollars ($10.00) per share.
FIFTH. The name and mailing address of the incorporator is Sarah Bloom
Raskin, 13880 Dulles Corner Lane, Herndon, Virginia 20171. The name and mailing
address of each person who is to serve as a director until the first annual
meeting of the stockholders or until a successor is elected and qualified is as
follows:
Paul J. Feldman 13880 Dulles Corner Lane, Herndon, VA 20171
Don R. McClure 13880 Dulles Corner Lane, Herndon, VA 20171
Sarah Bloom Raskin 13880 Dulles Corner Lane, Herndon, VA 20171
SIXTH. The Corporation is to have perpetual existence.
<PAGE> 10
Exhibit 4-A
Page 2 of 3
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 fixed by, or in the manner provided in, the Bylaws. 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 Bylaws of the Corporation, subject
to the power of the stockholders of the Corporation to alter or repeal any
Bylaws whether adopted by the stockholders or otherwise.
b. To exercise the powers and authorities as are provided in
the Bylaws then in effect, subject to applicable limitations as provided in such
Bylaws.
EIGHTH. Meetings of stockholders may be held within or without the
State of Delaware, as the Bylaws may provide. The books of the Corporation may
be kept (subject to any provision contained in the statutes) outside the State
of Delaware at such place or places as may be designated from time to time by
the Board of Directors or in the Bylaws of the Corporation. The election of
directors need not be by written ballot except to the extent provided in the
Bylaws 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 such exemption from liability or
limitation thereof is not permitted under the General
<PAGE> 11
Exhibit 4-A
Page 3 of 3
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 her act and deed this day of October,
1998.
----------------------------
Sarah Bloom Raskin
<PAGE> 12
Exhibit 5-A
Page 1 of 2
AMENDMENT OF ARTICLES OF INCORPORATION
Columbia Service Partners, Inc., as the sole shareholder of or
subscriber to the shares of Columbia Assurance Agency, Inc., HEREBY ADOPTS,
APPROVES AND AUTHORIZES the amendment of Article 4 and Article 8 of the Articles
of Incorporation of Columbia Assurance Agency, Inc. in accordance with the
following resolutions adopted by the Board of Directors of the Corporation by
unanimous written consent dated May 3, 1999:
RESOLVED, that the Board of Directors of this Corporation,
pursuant to Section 1701.70(B)(3) of the Ohio Revised Code, hereby
declares it advisable that the Articles of Incorporation of this
Corporation be amended to eliminate the nonvoting class of shares, the
amendment to be effective by deleting Article 4 and Article 8 of said
Articles of Incorporation in their entirety and inserting in lieu
thereof the following:
ARTICLE 4. CAPITAL STOCK
The number of shares of capital stock which the
Corporation is authorized to have outstanding is 850 common
shares, without par value.
ARTICLE 8. AUTHORITY TO REPURCHASE CAPITAL STOCK
The Corporation, by its board of directors, is
authorized to repurchase, redeem or otherwise acquire, from
time to time at any time, shares of any class of capital stock
issued by it.
RESOLVED, that the foregoing amendment is advisable and its
adoption is in the best interests of the Corporation and its
shareholders and, to effectuate the foregoing, it is hereby directed
that the foregoing amendment be considered at the next annual meeting
of the shareholders unless earlier approved by written consent in
accordance with Section 1701.54 of the Ohio Revised Code; and
RESOLVED, that at any time prior to the filing of the
foregoing amendment to the Corporation's Articles of Incorporation with
the Secretary of State of the State of Ohio, notwithstanding
authorization of such amendment by the shareholders of the Corporation,
the Board of Directors of the Corporation may abandon such amendment
without further action by the shareholders of the Corporation; and
<PAGE> 13
Exhibit 5-A
Page 2 of 2
RESOLVED, that after approval of such amendment by the
shareholders of the Corporation, the officers of the Corporation hereby
are authorized and directed to execute, acknowledge and file with the
Secretary of State of the State of Ohio a Certificate of Amendment to
evidence the foregoing amendment to the Corporation's Articles of
Incorporation;
RESOLVED, that upon the filing of such amendment with the
Secretary of State of the State of Ohio, each share of Class A voting
shares and each share of Class B nonvoting shares shall automatically
be converted into one share of common stock without par value; and
RESOLVED, that the officers of the Corporation 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.
<PAGE> 14
Exhibit 6-A
Page 1 of 2
UNANIMOUS WRITTEN CONSENT
IN LIEU OF AN ORGANIZATIONAL MEETING
OF THE BOARD OF DIRECTORS OF
COLUMBIA LNG CORPORATION
The undersigned, being all the members of the Board of Directors of
Columbia LNG Corporation, a Delaware corporation (the "Corporation"), hereby
waive notice of and holding of an organizational meeting and consent to and
adopt the following resolutions in lieu of action at an organizational meeting
of the Board of Directors:
ELECTION OF OFFICERS
RESOLVED, that the following individuals be, and they hereby
are, elected to the offices set forth opposite their respective names
to serve until the next organizational meeting or until their
respective successors are duly appointed and qualified:
President and Chief Executive Officer L. M. Bridges
Vice President F. Kolb
Vice President J. W. Trost*
Controller S. T. MacQueen
Secretary S. B. Heaton
* Whose duties shall consist of and be limited to the
following: to sign, execute and deliver on behalf of the Corporation,
applications, pleadings, corporate undertakings, reports and other
documents necessary or appropriate to proceedings before state and
federal regulatory authorities.
AMENDMENT OF BYLAWS
WHEREAS, the Board desires to amend Article III, Section 1 of the
Corporation's Bylaws, adopted on December 21, 1994, to make the minimum number
of directors stated in the Bylaws consistent with the minimum number of
directors stated in the Corporation's Certificate of Incorporation;
NOW THEREFORE, BE IT:
RESOLVED, that Article III, Section 1 of the Corporation's
Bylaws, adopted on December 21, 1994, be amended in its entirety to
read as follows:
Section 1. The number of directors which shall constitute the
whole Board shall be not less than three nor more than ten. 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
<PAGE> 15
Exhibit 6-A
Page 2 of 2
Section 2 of this Article, and each director elected shall hold office
until his successor is elected and qualified. Directors need not be
stockholders.
IN WITNESS WHEREOF, the foregoing constitutes the action of the Board
of Directors, all as of the 10th day of July, 1998.
-------------------------------
L. Michael Bridges
-------------------------------
Raymond R. Kaskel
-------------------------------
Michael W. O'Donnell
-------------------------------
Oliver G. Richard III
-------------------------------
Peter M. Schwolsky
<PAGE> 16
Exhibit 7-A
Page 1 of 4
CERTIFICATE OF INCORPORATION
OF
COLUMBIA FINANCE CORPORATION
*****
FIRST. The name of the corporation is Columbia Finance Corporation.
SECOND. The address of its registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or
promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares of stock which the corporation shall
have authority to issue is: One Hundred (100) and the par value of each of such
shares is No Dollars and One Cents ($0.01) amounting in the aggregate to One
Dollars and Zero Cents ($1).
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof are as follows:
NONE
At all elections of directors of the corporation, each stockholder
shall be entitled to as many votes as shall equal the number of votes which
(except for such provision as to cumulative voting) he would be entitled to cast
for the election of directors with respect to his shares of stock multiplied by
the number of directors to be elected by him, and he may cast all of such votes
for a single director or may distribute them among the number to be voted for,
or for any two or more of them as he may see fit.
FIFTH. The name and mailing address of each incorporator is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
Judith Argao 1025 Vermont Ave., NW, Washington, DC 20005
April Anderson 1025 Vermont Ave., NW, Washington, DC 20005
Jennifer Cottrell 1025 Vermont Ave., NW, Washington, DC 20005
</TABLE>
<PAGE> 17
Exhibit 7-A
Page 2 of 4
The name and mailing address of each person who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
Michael W. O'Donnell 13880 Dulles Corner Lane, Herndon, VA 20171
Jim W. Trost 13880 Dulles Corner Lane, Herndon, VA 20171
</TABLE>
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 make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
To 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. The by-laws may provide
that in the absence or disqualification of a member of a committee, the member
or members present at any meeting and not disqualified from voting, whether or
not such member or members 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, or in the by-laws of the corporation,
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 matters: (i) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the Delaware General
Corporation Law to be submitted to stockholders for approval or (ii) adopting,
amending or repealing any by-law of the corporation.
When and as authorized by the stockholders in accordance with law, 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
<PAGE> 18
Exhibit 7-A
Page 3 of 4
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.
EIGHTH. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
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.
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 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.
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 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 for liability (i) for any breach of the 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) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
<PAGE> 19
Exhibit 7-A
Page 4 of 4
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this Certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this Fifth day of
November, 1998.
--------------------------------
JUDITH ARGAO
--------------------------------
APRIL ANDERSON
--------------------------------
JENNIFER COTTRELL
<PAGE> 20
Exhibit 8-A
Page 1 of 4
CERTIFICATE OF INCORPORATION
OF
Columbia Accounts Receivable Corporation
*****
FIRST. The name of the corporation is Columbia Accounts Receivable
Corporation.
SECOND. The address of its registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or
promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares of stock which the corporation shall
have authority to issue is: One Hundred (100) and the par value of each of such
shares is No Dollars and One Cents ($0.01) amounting in the aggregate to One
Dollars and Zero Cents ($1).
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof are as follows:
NONE
At all elections of directors of the corporation, each stockholder
shall be entitled to as many votes as shall equal the number of votes which
(except for such provision as to cumulative voting) he would be entitled to cast
for the election of directors with respect to his shares of stock multiplied by
the number of directors to be elected by him, and he may cast all of such votes
for a single director or may distribute them among the number to be voted for,
or for any two or more of them as he may see fit.
FIFTH. The name and mailing address of each incorporator is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
JUDITH ARGAO 1025 VERMONT AVE., NW, WASHINGTON, DC 20005
APRIL ANDERSON 1025 VERMONT AVE., NW, WASHINGTON, DC 20005
JENNIFER COTTRELL 1025 VERMONT AVE., NW, WASHINGTON, DC 20005
</TABLE>
<PAGE> 21
Exhibit 8-A
Page 2 of 4
The name and mailing address of each person who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
MICHAEL W. O'DONNELL 13880 DULLES CORNER LANE, HERNDON, VA 20171
PHILIP R. ALDRIDGE 13880 DULLES CORNER LANE, HERNDON, VA 20171
</TABLE>
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 make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
To 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. The by-laws may provide
that in the absence or disqualification of a member of a committee, the member
or members present at any meeting and not disqualified from voting, whether or
not such member or members 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, or in the by-laws of the corporation,
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 matters: (i) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the Delaware General
Corporation Law to be submitted to stockholders for approval or (ii) adopting,
amending or repealing any by-law of the corporation.
When and as authorized by the stockholders in accordance with law, 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
<PAGE> 22
Exhibit 8-A
Page 3 of 4
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.
EIGHTH. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
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.
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 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.
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 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 for liability (i) for any breach of the 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) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
<PAGE> 23
Exhibit 8-A
Page 4 of 4
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this Certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this Fifth day of
November, 1998.
--------------------------------
JUDITH ARGAO
--------------------------------
APRIL ANDERSON
--------------------------------
JENNIFER COTTRELL
<PAGE> 24
Exhibit 9-A
Page 1 of 4
CERTIFICATE OF INCORPORATION
OF
COLUMBIA PETROLEUM CORPORATION
1. The name of the corporation is Columbia Petroleum Corporation.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. 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: One Dollars ($1.00) amounting in the aggregate to Three Thousand
Dollars ($3,000.00).
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof are as follows:
Common
At all elections of directors of the corporation, each stockholder shall be
entitled to as many votes as shall equal the number of votes which (except for
such provision as to cumulative voting) he would be entitled to cast for the
election of directors with respect to his shares of stock multiplied by the
number of directors to be elected by him, and he may cast all of such votes for
a single director or may distribute them among the number to be voted for, or
for any two or more of them as he may see fit.
5. The name and mailing address of each incorporator is as follows:
<PAGE> 25
Exhibit 9-A
Page 2 of 4
The name and mailing address of each person who is to serve as a director
until the first annual meeting of the stockholders or until a successor is
elected and qualified, is as follows:
<TABLE>
<S> <C>
A. Mason Brent 9200 Arboretum Parkway, Suite 140
Richmond, VA 23236
Sharon B. Heaton 13880 Dulles Corner Lane
Herndon, VA 20171-4600
Thomas E. Perkins, Jr. 9200 Arboretum Parkway, Suite 140
Richmond, VA 23236
</TABLE>
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real and
personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it were created.
By a majority of the whole board, to 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. The by-laws may provide that 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,
or in the by-laws of the corporation, 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 Certificate 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; and, unless the resolution or by-laws expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
<PAGE> 26
Exhibit 9-A
Page 2 of 4
When and as authorized by the stockholders in accordance with law, 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.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
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.
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 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 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.
9. 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.
10. 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 for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
<PAGE> 27
Exhibit 9-A
Page 4 of 4
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the
director derived any improper personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this Certificate, hereby declaring and
certifying that this is our act and deed and the facts herein stated are true,
and accordingly have hereunto set our hands this ______________ day of
____________, 1999.
______________________________________
______________________________________
______________________________________
<PAGE> 28
Exhibit 10-A
Page 1 of 4
CERTIFICATE OF INCORPORATION
OF
CP HOLDINGS, INC.
1. The name of the corporation is CP Holdings, Inc.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted
is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
4. 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: One Dollars ($1.00) amounting in the aggregate to Three Thousand
Dollars ($3,000.00).
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof are as follows:
Common
At all elections of directors of the corporation, each stockholder shall be
entitled to as many votes as shall equal the number of votes which (except for
such provision as to cumulative voting) he would be entitled to cast for the
election of directors with respect to his shares of stock multiplied by the
number of directors to be elected by him, and he may cast all of such votes for
a single director or may distribute them among the number to be voted for, or
for any two or more of them as he may see fit.
5. The name and mailing address of each incorporator is as follows:
<TABLE>
<S> <C>
John J. Leary 13880 Dulles Corner Lane, Herndon, Va 20171-4600
</TABLE>
<PAGE> 29
Exhibit 10-A
Page 2 of 4
The name and mailing address of each person who is to serve as a director
until the first annual meeting of the stockholders or until a successor is
elected and qualified, is as follows:
<TABLE>
<S> <C>
A. Mason Brent 9200 Arboretum Parkway, Suite 140
Richmond, VA 23236
Sharon B. Heaton 13880 Dulles Corner Lane
Herndon, VA 20171-4600
Thomas E. Perkins, Jr. 9200 Arboretum Parkway, Suite 140
Richmond, VA 23236
</TABLE>
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real and
personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it were created.
By a majority of the whole board, to 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. The by-laws may provide that 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,
or in the by-laws of the corporation, 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 Certificate 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; and, unless the resolution or by-laws expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize
<PAGE> 30
Exhibit 10-A
Page 3 of 4
the issuance of stock.
When and as authorized by the stockholders in accordance with law, 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.
8. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
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.
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 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 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.
9. 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.
10. 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
<PAGE> 31
Exhibit 10-A
Page 4 of 4
for liability (i) for any breach of the 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) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived any improper personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this Certificate, hereby declaring and
certifying that this is our act and deed and the facts herein stated are true,
and accordingly have hereunto set our hands this ______________ day of
____________, 1999.
__________________________________
JOHN J. LEARY
__________________________________
__________________________________
__________________________________
<PAGE> 32
Exhibit 11-A
Page 1 of 1
CERTIFICATE OF
LIMITED PARTNERSHIP
OF
COLUMBIA PROPANE, L.P.
THIS Certificate of Limited Partnership of Columbia Propane, L.P. (the
"Partnership") is being duly executed and filed by CP Holdings, Inc., as general
partner, for the purpose of forming a limited partnership under the Delaware
Revised Uniform Limited Partnership Act (Del. Code Ann. tit. 6, Section 17-101,
et seq.).
1. Name. The name of the limited partnership formed hereby is
Columbia Propane, L.P.
2. Registered Office. The address of the registered office of the
Partnership in the State of Delaware is c/o Corporation
Service Company, 1013 Centre Road, Wilmington, New Castle
County, Delaware 19805.
3. Registered Agent. The name and address of the Partnership's
registered agent for service of process in the State of
Delaware is Corporation Service Company, 1013 Centre Road,
Wilmington, New Castle County, Delaware 19805.
4. General Partner. The name and business address of the sole
general partner of the Partnership is CP Holdings, Inc., c/o
Columbia Energy Group, 13880 Dulles Corner Lane, Herndon,
Virginia 20171, Attention: General Counsel.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Limited Partnership as of the _____ day of _________, 1999.
CP Holdings, Inc.
By:
_____________________________
Name: A. Mason Brent
Title: President and Chief
Executive Officer
<PAGE> 33
Exhibit 12-A
Page 1 of 1
CERTIFICATE OF MERGER
OF
NATIONAL PROPANE PARTNERS, L.P.
INTO
COLUMBIA PROPANE, L.P.
The undersigned limited partnership, organized and existing under and
by virtue of the Delaware Revised Uniform Limited Partnership Act of the State
of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of limited partnership of each of the
constituent limited partnerships of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF LIMITED PARTNERSHIP
<S> <C>
National Propane Partners, L.P. Delaware
Columbia Propane, L.P. Delaware
</TABLE>
SECOND: That a purchase agreement between the parties with respect to
the merger has been approved, adopted, certified, executed and acknowledged by
each of the constituent limited partnerships in accordance with the requirements
of Section 17-211 of the Delaware Revised Uniform Limited Partnership Act of the
State of Delaware.
THIRD: That the name of the surviving limited partnership of the merger
is Columbia Propane, L.P.
FOURTH: That the certificate of limited partnership of Columbia
Propane, L.P., a Delaware limited partnership, the surviving limited
partnership, shall be the certificate of limited partnership of the surviving
limited partnership.
FIFTH: That the executed purchase agreement with respect to the merger
is on file at the principal place of business of the surviving limited
partnership. The address of the principal place of business of the surviving
limited partnership is Columbia Propane, L.P., c/o Columbia Energy Group, 13880
Dulles Corner Lane, Herndon, Virginia 20171, Attention: General Counsel.
SIXTH: That a copy of the purchase agreement with respect to the merger
will be furnished by the surviving limited partnership, on request and without
cost to any unitholder of any constituent limited partnership.
IN WITNESS WHEREOF, Columbia Propane, L.P. has caused the Certificate
to be signed by CP Holdings, Inc., its general partner, this 19th day of July,
1999.
COLUMBIA PROPANE, L.P.
By: CP Holdings, Inc.
Its General Partner
Name: ________________________
Title: ________________________
<PAGE> 34
Exhibit 13-A
Page 1 of 1
CERTIFICATE OF CANCELLATION
OF
CERTIFICATE OF LIMITED PARTNERSHIP
OF
COLUMBIA PROPANE, L.P.
This Certificate of Cancellation, dated August 16, 1999, is being filed
by the undersigned in the Office of the Secretary of State of the State of
Delaware for the purpose of canceling the Certificate of Limited Partnership of
Columbia Propane, L.P. (the "Partnership"), a limited partnership organized
under the Delaware Revised Uniform Limited Partnership Act (the "Act"), pursuant
to Section 17-203 of the Act.
1. The name of the limited partnership is Columbia Propane, L.P.
2. The date of the filing of the Certificate of Limited Partnership of
the Partnership is March 30, 1999.
3. This Certificate of Cancellation is being filed for the reason that
the Partnership has been dissolved and the winding up of the Partnership has
been completed.
IN WITNESS WHEREOF, the undersigned, all of the partners of the
Partnership, have executed this Certificate of Cancellation of Certificate of
Limited Partnership as of the date first above written.
CP Holdings, Inc.,
General Partner of Columbia Propane, L.P.
By: _______________________
Name: _________________
Title: _________________
Columbia Propane Corporation,
Limited Partner of Columbia Propane, L.P.
By: _______________________
Name: _________________
Title: _________________
<PAGE> 35
Exhibit 14-A
Page 1 of 1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF LIMITED PARTNERSHIP
OF
NATIONAL PROPANE, L.P.
This Certificate of Amendment of Certificate of Limited Partnership of
National Propane, L.P. (the "Partnership"), dated as of August 18, 1999, has
been duly executed and is being filed by the undersigned in accordance with the
provisions of 6 Del.C. Section 17-202 and Section 17-204 to amend the original
Certificate of Limited Partnership of the Partnership, which was filed on March
15, 1996 with the Secretary of State of the State of Delaware, as heretofore
amended and restated on June 21, 1996 (the "Certificate"), to form a limited
partnership under the Delaware Revised Uniform Limited Partnership Act (6 Del.C.
Section 17-101, et seq.).
1. Name. The name of the limited partnership is National Propane, L.P.
2. Amendment. Section 1 of the Certificate is hereby amended to read in
its entirety, "The name of the limited partnership is Columbia Propane, L.P."
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment of Certificate of Limited Partnership as of the date first-above
written.
CP Holdings, Inc.,
Managing General Partner
By: ________________________________
Name: ___________________________
Title: ___________________________
<PAGE> 36
Exhibit 15-A
Page 1 of 3
CERTIFICATE OF INCORPORATION OF
COLUMBIA ELECTRIC PEDRICK LIMITED II CORPORATION
ARTICLE I
The name of this corporation is Columbia Electric Pedrick Limited II
Corporation (the "Corporation").
ARTICLE II
The address of the registered office of the Corporation in the State of
Delaware is 222 Delaware Avenue, P.O. Box 2306, Wilmington, County of New
Castle, Delaware 19899, and the name of the Corporation's registered agent at
such address is Delaware Corporate Services Inc.
ARTICLE III
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 (as the same exists or may hereafter be amended,
the "General Corporation Law").
ARTICLE IV
The total number of shares of stock which the Corporation shall have
authority to issue is one thousand (1,000). All such shares are to be common
stock, par value of one dollar ($1.00) per share, and are to be of one class.
ARTICLE V
The name and mailing address of the incorporator are:
Delaware Corporate Services Inc.
222 Delaware Avenue
P.O. Box 2306
Wilmington, Delaware 19899.
ARTICLE VI
The incorporator, until the directors are elected, shall manage the
affairs of the Corporation and may do whatever is necessary and proper to
perfect the organization of the Corporation, including the adoption of the
original bylaws of the Corporation and the election of directors.
1
<PAGE> 37
Exhibit 1-A
Page 2 of 3
ARTICLE VII
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. 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 VIII
In furtherance and not in limitation of the powers conferred by the
General Corporation Law, the Board of Directors is expressly authorized and
empowered to adopt, amend and repeal the bylaws of the Corporation, subject to
the power of the stockholders of the Corporation to amend or repeal any bylaw
made by the Board of Directors.
ARTICLE IX
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 X
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 General Corporation Law,
or any other laws of the State of Delaware, at the time in force may be added or
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 X.
THE UNDERSIGNED, being the incorporator hereinabove named, makes and
files this Certificate of Incorporation, and does hereby declare and certify
that said instrument is the incorporator's act and deed and that the facts
stated herein are true, and accordingly has executed this Certificate of
Incorporation this 29th day of November, 1999.
DELAWARE CORPORATE SERVICES INC.,
as incorporator
By:______________________________
Name:
Title:
2
<PAGE> 38
Exhibit 15-A
Page 3 of 3
ORGANIZATION ACTION IN WRITING
OF INCORPORATOR OF COLUMBIA ELECTRIC
PEDRICK LIMITED II CORPORATION
The undersigned, being the sole incorporator of Columbia Electric
Pedrick Limited II Corporation, a Delaware corporation (the "Corporation"), in
lieu of an organization meeting hereby takes the following action in accordance
with Section 108(c) of the General Corporation Law of the State of Delaware:
1. Each of the following persons is hereby elected to serve as a member
of the Board of Directors of the Corporation until his successor is elected and
qualified or until his earlier death, resignation, or removal:
Michael J. Gluckman
Robert M. Zulandi
Fredric R. Gumbinner
2. The bylaws set forth in Exhibit A hereto are hereby adopted as the
original bylaws of the Corporation.
IN WITNESS WHEREOF, the undersigned, being the sole incorporator of the
Corporation, has executed this Organization Action in Writing effective on the
date set forth hereinbelow.
DELAWARE CORPORATE SERVICES INC.,
as incorporator
Date: November 29, 1999 By:______________________________
Name: Jeanette LaVecchia
Title: Vice President
3
<PAGE> 39
Exhibit 16-A
Page 1 of 3
CERTIFICATE OF INCORPORATION OF
COLUMBIA ELECTRIC PEDRICK GENERAL II CORPORATION
ARTICLE I
The name of this corporation is Columbia Electric Pedrick General II
Corporation (the "Corporation").
ARTICLE II
The address of the registered office of the Corporation in the State of
Delaware is 222 Delaware Avenue, P.O. Box 2306, Wilmington, County of New
Castle, Delaware 19899, and the name of the Corporation's registered agent at
such address is Delaware Corporate Services Inc.
ARTICLE III
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 (as the same exists or may hereafter be amended,
the "General Corporation Law").
ARTICLE IV
The total number of shares of stock which the Corporation shall have
authority to issue is one thousand (1,000). All such shares are to be common
stock, par value of one dollar ($1.00) per share, and are to be of one class.
ARTICLE V
The name and mailing address of the incorporator are:
Delaware Corporate Services Inc.
222 Delaware Avenue
P.O. Box 2306
Wilmington, Delaware 19899.
ARTICLE VI
The incorporator, until the directors are elected, shall manage the
affairs of the Corporation and may do whatever is necessary and proper to
perfect the organization of the Corporation, including the adoption of the
original bylaws of the Corporation and the election of directors.
<PAGE> 40
Exhibit 16-A
Page 2 of 3
ARTICLE VII
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. 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 VIII
In furtherance and not in limitation of the powers conferred by the
General Corporation Law, the Board of Directors is expressly authorized and
empowered to adopt, amend and repeal the bylaws of the Corporation, subject to
the power of the stockholders of the Corporation to amend or repeal any bylaw
made by the Board of Directors.
ARTICLE IX
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 X
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 General Corporation Law,
or any other laws of the State of Delaware, at the time in force may be added or
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 X.
THE UNDERSIGNED, being the incorporator hereinabove named, makes and
files this Certificate of Incorporation, and does hereby declare and certify
that said instrument is the incorporator's act and deed and that the facts
stated herein are true, and accordingly has executed this Certificate of
Incorporation this 30th day of November, 1999.
DELAWARE CORPORATE SERVICES INC.,
as incorporator
By:______________________________
Name: Jeanette LaVecchia
Title: Vice President
<PAGE> 41
Exhibit 16-A
Page 3 of 3
ORGANIZATION ACTION IN WRITING
OF INCORPORATOR OF COLUMBIA ELECTRIC
PEDRICK GENERAL II CORPORATION
The undersigned, being the sole incorporator of Columbia Electric
Pedrick General II Corporation, a Delaware corporation (the "Corporation"), in
lieu of an organization meeting hereby takes the following action in accordance
with Section 108(c) of the General Corporation Law of the State of Delaware:
1. Each of the following persons is hereby elected to serve as a member
of the Board of Directors of the Corporation until his successor is elected and
qualified or until his earlier death, resignation, or removal:
Michael J. Gluckman
Robert M. Zulandi
Fredric R. Gumbinner
2. The bylaws set forth in Exhibit A hereto are hereby adopted as the
original bylaws of the Corporation.
IN WITNESS WHEREOF, the undersigned, being the sole incorporator of the
Corporation, has executed this Organization Action in Writing effective on the
date set forth hereinbelow.
DELAWARE CORPORATE SERVICES INC.,
as incorporator
Date: November 30, 1999 By:______________________________
Name: Jeanette LaVecchia
Title: Vice President
<PAGE> 42
Exhibit 17-A
Page 1 of 7
CERTIFICATE OF INCORPORATION
OF
COLUMBIA ELECTRIC LIBERTY MEMBER CORPORATION
FIRST. The name of the Corporation is Columbia Electric Liberty Member
Corporation.
SECOND. The address of its registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares of stock which the Corporation shall
have authority to issue is three thousand (3,000) shares and the par value is
One Cent ($0.01) per share.
FIFTH. The name and mailing address of the incorporator is as follows:
Name Mailing Address
The name and mailing address of each person who is to serve as a
director until the firm annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
Michael J. Gluckman 13880 Dulles Corner Lane, Herndon, VA 20171-4600
Fredric R. Gumbinner 13880 Dulles Corner Lane, Herndon, VA 20171-4600
Robert M. Zulandi 13880 Dulles Corner Lane, Herndon, VA 20171-4600
</TABLE>
SIXTH. The Corporation is to have perpetual existence.
SEVENTH. 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 two (2) nor more than fifteen (15).
The directors need not be stockholders.
EIGHTH. 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.
<PAGE> 43
Exhibit 17-A
Page 2 of 7
(b) Subject to the applicable provisions of the by-laws then in effect,
to determine, from time to time, whether and to what extent 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 proper 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 the 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, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; provided, however,
the by-laws may provide that in the absence of 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.
(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.
<PAGE> 44
Exhibit 17-A
Page 3 of 7
NINTH. To the fullest extent that the General Corporation Law of the
State of Delaware as it exists on the date hereof or as it may hereafter be
amended permits the limitation or elimination of the liability of directors, no
director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director. No
amendment to or repeal of this Paragraph 9 shall apply to or have any effect on
the liability of any director of the Corporation for or with respect to any acts
or omissions of such director occurring prior to such amendment or repeal.
TENTH. (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.
(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 Paragraph 10 or incurred by an Indemnitee in connection with any proceeding
referred to in Section (a) of this Paragraph 10, 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 in furtherance
of the provisions of this Paragraph 10 and may create a trust fund, grant a
security interest or use other means (including, without limitation, a letter of
credit) to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Paragraph 10.
(c) Indemnification; Not Exclusive Right. The right of indemnification
provided in this Paragraph 10 shall not be exclusive of any other rights to
which those seeking indemnification may otherwise be entitled, and the
provisions of this Paragraph 10 shall inure to the benefit of the heirs and
legal representatives of any person entitled to indemnity under this Paragraph
10 and shall be applicable to Proceedings commenced or continuing after the
adoption of this Paragraph 10, 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 provisions, the following procedures, presumptions and remedies shall
apply with respect to advancement of expenses and the right to indemnification
under this Paragraph 10:
(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
<PAGE> 45
Exhibit 17-A
Page 4 of 7
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 Paragraph 10.
(2) Procedure for Determination of Entitlement to Indemnification. (i)
To obtain indemnification under this Paragraph 10, 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 60 days
after receipt by the Corporation of the written request for indemnification
together with Supporting Documentation. The Secretary of the Corporation shall,
promptly upon receipt of such a request for indemnification, advise the Board of
Directors in writing the Indemnitee has requested indemnification.
(ii) The Indemnitee's entitlement to indemnification under this
Paragraph 10 shall be determined in one of the following ways: (A) by a majority
vote of the Disinterested Directors (as hereinafter defined), if 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 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, if they constitute a quorum of the Board of Directors,
present the issue of entitlement to indemnification to the stockholders for
their determination); or (D) as provided in Section (d)(3).
(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 Disinterested 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 Paragraph 10, if a Change of Control shall have
occurred, the Indemnitee shall be presumed to be entitled to indemnification
under this Paragraph 10 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 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
<PAGE> 46
Exhibit 17-A
Page 5 of 7
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 pleas 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
Paragraph 10, (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
Paragraph 10.
(ii) If a determination shall have been made or deemed to have been
made, pursuant to Section (d)(2) or (3), that the Indemnitee is entitled to
Indemnitee, the Corporation shall be obligated to pay the amounts constituting
such indemnification within five days after such determination has been made or
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 or in the Supporting Documentation or (C) such
indemnification is prohibited by law. In the event that (x) advancement of
expenses if not timely made pursuant to Section (d)(l) 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 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 Paragraph 10 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 Paragraph 10.
(iv) In the event that the Indemnitee, pursuant to this Section (d)(4),
seeks a judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of, this Paragraph 10, the
Indemnitee shall be entitled to recover from the Corporation,
<PAGE> 47
Exhibit 17-A
Page 6 of 7
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.
(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 or 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 Director 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 consent, 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 the
representation: (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 Paragraph 10. 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 is an action to determine the
Indemnitee's rights under this Paragraph 10.
(e) Serverability. If any provision or provisions of the Paragraph 10
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(i) the validity, legality and enforceability of the remaining provision of this
Paragraph 10 (including, without limitation, all portions of any paragraph of
this Paragraph 10 containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any
<PAGE> 48
Exhibit 17-A
Page 7 of 7
way be affected or impaired thereby; and (ii) to the fullest extent possible,
the provisions of this Paragraph 10 (including, without limitation, all portions
of any paragraph of this Paragraph 10 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.
ELEVENTH. Meeting of the 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.
TWELFTH. 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.
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do 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 23rd day of December, 1999.
-----------------------------
-----------------------------
-----------------------------
<PAGE> 49
Exhibit 18-A
Page 1 of 4
CERTIFICATE OF INCORPORATION
OF
COLUMBIA ELECTRIC GREGORY GENERAL CORPORATION
*****
FIRST. The name of the corporation is COLUMBIA ELECTRIC GREGORY GENERAL
CORPORATION.
SECOND. The address of its registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or
promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
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 One Dollar ($1) amounting in the aggregate to Three Thousand
Dollars ($3,000.00).
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof are as follows:
At all elections of directors of the corporation, each stockholder
shall be entitled to as many votes as shall equal the number of votes which
(except for such provision as to cumulative voting) he would be entitled to cast
for the election of directors with respect to his shares of stock multiplied by
the number of directors to be elected by him, and he may cast all of such votes
for a single director or may distribute them among the number to be voted for,
or for any two or more of them as he may see fit.
FIFTH. The name and mailing address of each incorporator is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
M.A. Spencer 1209 Orange Street, Wilmington, DE 19801
C.L. Hughes 1209 Orange Street, Wilmington, DE 19801
G.D. Cooper 1209 Orange Street, Wilmington, DE 19801
</TABLE>
<PAGE> 50
Exhibit 18-A
Page 2 of 4
The name and mailing address of each person who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- --------------
<S> <C>
Michael J. Gluckman 205 Van Buren Street, Suite 120, Herndon, VA 20170
Robert M. Zulandi 205 Van Buren Street, Suite 120, Herndon, VA 20170
Raymond R. Kaskel 12355 Sunrise Valley Drive, Suite 300, Reston, VA 20191
</TABLE>
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 make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
To 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. The by-laws may provide
that in the absence or disqualification of a member of a committee, the member
or members present at any meeting and not disqualified from voting, whether or
not such member or members 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, or in the by-laws of the corporation,
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 matters: (i) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the Delaware General
Corporation Law to be submitted to stockholders for approval or (ii) adopting,
amending or repealing any by-law of the corporation.
When and as authorized by the stockholders in accordance with law, to
sell, lease or exchange all or substantially all of the property and assets of
the corporation, including
<PAGE> 51
Exhibit 18-A
Page 3 of 4
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.
EIGHTH. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
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.
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 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.
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 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 for liability (i) for any breach of the 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) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
<PAGE> 52
Exhibit 18-A
Page 4 of 4
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this Certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly have hereunto set our hands this Twenty-First
day of May, 1998.
--------------------------------
Incorporator
M.A. Spencer
--------------------------------
Incorporator
C.L. Hughes
--------------------------------
Incorporator
G.D. Cooper
<PAGE> 53
Exhibit 19-A
Page 1 of 4
CERTIFICATE OF INCORPORATION
OF
COLUMBIA ELECTRIC GREGORY REMINGTON CORPORATION
*****
FIRST. The name of the corporation is Columbia Electric Gregory
Remington Corporation.
SECOND. The address of its registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or
promoted is: To engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
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 One Dollar ($1) amounting in the aggregate to Three Thousand
Dollars ($3,000.00).
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof are as follows:
At all elections of directors of the corporation, each stockholder
shall be entitled to as many votes as shall equal the number of votes which
(except for such provision as to cumulative voting) he would be entitled to cast
for the election of directors with respect to his shares of stock multiplied by
the number of directors to be elected by him, and he may cast all of such votes
for a single director or may distribute them among the number to be voted for,
or for any two or more of them as he may see fit.
FIFTH. The name and mailing address of each incorporator is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
M.A. Spencer 1209 Orange Street, Wilmington, DE 19801
C.L. Hughes 1209 Orange Street, Wilmington, DE 19801
G.D. Cooper 1209 Orange Street, Wilmington, DE 19801
</TABLE>
<PAGE> 54
Exhibit 19-A
Page 2 of 4
The name and mailing address of each person who is to serve as a director
until the first annual meeting of the stockholders or until a successor is
elected and qualified, is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
Michael J. Gluckman 205 Van Buren St., Suite 120, Herndon, VA 20170
Robert M. Zulandi 205 Van Buren St., Suite 120, Herndon, VA 20170
Raymond R. Kaskel 12355 Sunrise Valley Drive, Suite 300, Reston, VA 20191
</TABLE>
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 make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real and
personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
To 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. The by-laws may provide
that in the absence or disqualification of a member of a committee, the member
or members present at any meeting and not disqualified from voting, whether or
not such member or members 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, or in the by-laws of the corporation,
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 matters: (i) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the Delaware General
Corporation Law to be submitted to stockholders for approval or (ii) adopting,
amending or repealing any by-law of the corporation.
When and as authorized by the stockholders in accordance with law, to sell,
lease or exchange all or substantially all of the property and assets of the
corporation, including
<PAGE> 55
Exhibit 19-A
Page 3 of 4
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.
EIGHTH. Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
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.
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 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.
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 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 for liability (i) for any breach of the 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) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
<PAGE> 56
Exhibit 19-A
Page 4 of 4
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this Certificate, hereby declaring and
certifying that this is our act and deed and the facts herein stated are true,
and accordingly have hereunto set our hands this Twenty-First day of May, 1998.
--------------------------------
Incorporator
M.A. Spencer
--------------------------------
Incorporator
C.L. Hughes
--------------------------------
Incorporator
G.D. Cooper
<PAGE> 57
Exhibit 20-A
Page 1 of 7
CERTIFICATE OF INCORPORATION
OF
COLUMBIA ELECTRIC KELSON CORPORATION
FIRST. The name of the Corporation is Columbia Electric Kelson Corporation.
SECOND. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares of stock which the Corporation shall
have authority to issue is three thousand (3,000) shares and the par value is
One Cent ($0.01) per share.
FIFTH. The name and mailing address of the incorporator is as follows:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
</TABLE>
The name and mailing address of each person who is to serve as a director
until the firm annual meeting of the stockholders or until a successor is
elected and qualified, is as follows:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
Michael J. Gluckman 13880 Dulles Corner Lane, Herndon, VA 20171-4600
Fredric R. Gumbinner 13880 Dulles Corner Lane, Herndon, VA 20171-4600
Robert M. Zulandi 13880 Dulles Corner Lane, Herndon, VA 20171-4600
</TABLE>
SIXTH. The Corporation is to have perpetual existence.
SEVENTH. 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 two (2) nor more than ten (10). The
directors need not be stockholders.
EIGHTH. 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.
<PAGE> 58
Exhibit 20-A
Page 2 of 7
(b) Subject to the applicable provisions of the by-laws then in effect, to
determine, from time to time, whether and to what extent 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 proper 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 the 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, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; provided, however,
the by-laws may provide that in the absence of 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.
(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
<PAGE> 59
Exhibit 20-A
Page 3 of 7
it by statute.
NINTH. To the fullest extent that the General Corporation Law of the State
of Delaware as it exists on the date hereof or as it may hereafter be amended
permits the limitation or elimination of the liability of directors, no director
of the Corporation shall be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. No amendment to or
repeal of this Paragraph 9 shall apply to or have any effect on the liability of
any director of the Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal.
TENTH. (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.
(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 Paragraph 10 or incurred by an Indemnitee in connection with any proceeding
referred to in Section (a) of this Paragraph 10, 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 in furtherance
of the provisions of this Paragraph 10 and may create a trust fund, grant a
security interest or use other means (including, without limitation, a letter of
credit) to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Paragraph 10.
(c) Indemnification; Not Exclusive Right. The right of indemnification
provided in this Paragraph 10 shall not be exclusive of any other rights to
which those seeking indemnification may otherwise be entitled, and the
provisions of this Paragraph 10 shall inure to the benefit of the heirs and
legal representatives of any person entitled to indemnity under this Paragraph
10 and shall be applicable to Proceedings commenced or continuing after the
adoption of this Paragraph 10, 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
provisions, the following procedures, presumptions and remedies shall apply with
respect to advancement of expenses and the right to indemnification under this
Paragraph 10:
<PAGE> 60
Exhibit 20-A
Page 4 of 7
(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 Paragraph 10.
(2) Procedure for Determination of Entitlement to Indemnification. (i) To
obtain indemnification under this Paragraph 10, 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 60 days
after receipt by the Corporation of the written request for indemnification
together with Supporting Documentation. The Secretary of the Corporation shall,
promptly upon receipt of such a request for indemnification, advise the Board of
Directors in writing the Indemnitee has requested indemnification.
(ii) The Indemnitee's entitlement to indemnification under this Paragraph
10 shall be determined in one of the following ways: (A) by a majority vote of
the Disinterested Directors (as hereinafter defined), if 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 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, if they constitute a quorum of the Board of Directors,
present the issue of entitlement to indemnification to the stockholders for
their determination); or (D) as provided in Section (d)(3).
(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 Disinterested 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 Paragraph 10, if a Change of Control shall have
occurred, the Indemnitee shall be presumed to be entitled to indemnification
under this Paragraph 10 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
<PAGE> 61
Exhibit 20-A
Page 5 of 7
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 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 pleas 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 Paragraph
10, (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
Paragraph 10.
(ii) If a determination shall have been made or deemed to have been made,
pursuant to Section (d)(2) or (3), that the Indemnitee is entitled to
Indemnitee, the Corporation shall be obligated to pay the amounts constituting
such indemnification within five days after such determination has been made or
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 or in the Supporting Documentation or (C) such
indemnification is prohibited by law. In the event that (x) advancement of
expenses if not timely made pursuant to Section (d)(l) 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 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
<PAGE> 62
Exhibit 20-A
Page 6 of 7
this Paragraph 10 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 Paragraph 10.
(iv) In the event that the Indemnitee, pursuant to this Section (d)(4),
seeks a judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of, this Paragraph 10, 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.
(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 or 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 Director 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 consent, 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 the
representation: (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 Paragraph 10. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person
<PAGE> 63
Exhibit 20-A
Page 7 of 7
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 is an action to determine
the Indemnitee's rights under this Paragraph 10.
(e) Serverability. If any provision or provisions of the Paragraph 10 shall
be held to be invalid, illegal or unenforceable for any reason whatsoever: (i)
the validity, legality and enforceability of the remaining provision of this
Paragraph 10 (including, without limitation, all portions of any paragraph of
this Paragraph 10 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 Paragraph 10 (including, without limitation,
all portions of any paragraph of this Paragraph 10 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.
ELEVENTH. Meeting of the 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.
TWELFTH. 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.
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do 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 ______ day of ____________, 1999.
__________________________________
__________________________________
__________________________________
<PAGE> 64
Exhibit 21-A
Page 1 of 7
CERTIFICATE OF INCORPORATION
OF
COLUMBIA ELECTRIC HAVERSTRAW CORPORATION
FIRST. The name of the Corporation is Columbia Electric Haverstraw
Corporation.
SECOND. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
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).
FIFTH. The name and mailing address of the incorporator is as follows:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
</TABLE>
The name and mailing address of each person who is to serve as a director
until the firm annual meeting of the stockholders or until a successor is
elected and qualified, is as follows:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
Michael J. Gluckman 13880 Dulles Corner Lane, Herndon, VA 20171-4600
Fredric R. Gumbinner 13880 Dulles Corner Lane, Herndon, VA 20171-4600
Robert M. Zulandi 13880 Dulles Corner Lane, Herndon, VA 20171-4600
</TABLE>
SIXTH. The Corporation is to have perpetual existence.
SEVENTH. 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 two (2) nor more than fifteen (15). The
directors need not be stockholders.
EIGHTH. 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.
<PAGE> 65
Exhibit 21-A
Page 2 of 7
(b) Subject to the applicable provisions of the by-laws then in effect,
to determine, from time to time, whether and to what extent 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 proper 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 the 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, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; provided, however,
the by-laws may provide that in the absence of 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.
(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.
<PAGE> 66
Exhibit 21-A
Page 3 of 7
NINTH. To the fullest extent that the General Corporation Law of the
State of Delaware as it exists on the date hereof or as it may hereafter be
amended permits the limitation or elimination of the liability of directors, no
director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director. No
amendment to or repeal of this Paragraph 9 shall apply to or have any effect on
the liability of any director of the Corporation for or with respect to any acts
or omissions of such director occurring prior to such amendment or repeal.
TENTH. (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.
(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 Paragraph 10 or incurred by an Indemnitee in connection with any proceeding
referred to in Section (a) of this Paragraph 10, 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 in furtherance
of the provisions of this Paragraph 10 and may create a trust fund, grant a
security interest or use other means (including, without limitation, a letter of
credit) to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Paragraph 10.
(c) Indemnification; Not Exclusive Right. The right of indemnification
provided in this Paragraph 10 shall not be exclusive of any other rights to
which those seeking indemnification may otherwise be entitled, and the
provisions of this Paragraph 10 shall inure to the benefit of the heirs and
legal representatives of any person entitled to indemnity under this Paragraph
10 and shall be applicable to Proceedings commenced or continuing after the
adoption of this Paragraph 10, 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 provisions, the following procedures, presumptions and remedies shall
apply with respect to advancement of expenses and the right to indemnification
under this Paragraph 10:
<PAGE> 67
Exhibit 21-A
Page 4 of 7
(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 Paragraph 10.
(2) Procedure for Determination of Entitlement to Indemnification. (i) To
obtain indemnification under this Paragraph 10, 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 60 days
after receipt by the Corporation of the written request for indemnification
together with Supporting Documentation. The Secretary of the Corporation shall,
promptly upon receipt of such a request for indemnification, advise the Board of
Directors in writing the Indemnitee has requested indemnification.
(ii) The Indemnitee's entitlement to indemnification under this Paragraph
10 shall be determined in one of the following ways: (A) by a majority vote of
the Disinterested Directors (as hereinafter defined), if 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 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, if they constitute a quorum of the Board of Directors,
present the issue of entitlement to indemnification to the stockholders for
their determination); or (D) as provided in Section (d)(3).
(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 Disinterested 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 Paragraph 10, if a Change of Control shall have
occurred, the Indemnitee shall be presumed to be entitled to indemnification
under this Paragraph 10 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
<PAGE> 68
Exhibit 21-A
Page 5 of 7
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 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 pleas 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
Paragraph 10, (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
Paragraph 10.
(ii) If a determination shall have been made or deemed to have been made,
pursuant to Section (d)(2) or (3), that the Indemnitee is entitled to
Indemnitee, the Corporation shall be obligated to pay the amounts constituting
such indemnification within five days after such determination has been made or
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 or in the Supporting Documentation or (C) such
indemnification is prohibited by law. In the event that (x) advancement of
expenses if not timely made pursuant to Section (d)(l) 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 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
<PAGE> 69
Exhibit 21-A
Page 6 of 7
this Paragraph 10 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 Paragraph 10.
(iv) In the event that the Indemnitee, pursuant to this Section (d)(4),
seeks a judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of, this Paragraph 10, 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.
(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 or 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 Director 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 consent, 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 the
representation: (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 Paragraph 10. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person
<PAGE> 70
Exhibit 21-A
Page 7 of 7
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 is an action to determine
the Indemnitee's rights under this Paragraph 10.
(e) Serverability. If any provision or provisions of the Paragraph 10
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(i) the validity, legality and enforceability of the remaining provision of this
Paragraph 10 (including, without limitation, all portions of any paragraph of
this Paragraph 10 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 Paragraph 10 (including, without limitation,
all portions of any paragraph of this Paragraph 10 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.
ELEVENTH. Meeting of the 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.
TWELFTH. 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.
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do 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 14th day of September, 1999.
----------------------------------
----------------------------------
----------------------------------
<PAGE> 71
Exhibit 22-A
Page 1 of 7
CERTIFICATE OF INCORPORATION
OF
COLUMBIA ELECTRIC LIBERTY MEMBER II CORPORATION
FIRST. The name of the Corporation is Columbia Electric Liberty Member II
Corporation.
SECOND. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares of stock which the Corporation shall
have authority to issue is three thousand (3,000) shares and the par value is
One Cent ($0.01) per share.
FIFTH. The name and mailing address of the incorporator is as follows:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
</TABLE>
The name and mailing address of each person who is to serve as a
director until the firm annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
Michael J. Gluckman 13880 Dulles Corner Lane, Herndon, VA 20171-4600
Fredric R. Gumbinner 13880 Dulles Corner Lane, Herndon, VA 20171-4600
Robert M. Zulandi 13880 Dulles Corner Lane, Herndon, VA 20171-4600
</TABLE>
SIXTH. The Corporation is to have perpetual existence.
SEVENTH. 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 two (2) nor more than fifteen (15). The
directors need not be stockholders.
EIGHTH. 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.
<PAGE> 72
Exhibit 22-A
Page 2 of 7
(b) Subject to the applicable provisions of the by-laws then in effect,
to determine, from time to time, whether and to what extent 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 proper 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 the 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, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; provided, however,
the by-laws may provide that in the absence of 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.
(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
<PAGE> 73
Exhibit 22-A
Page 3 of 7
it by statute.
NINTH. To the fullest extent that the General Corporation Law of the
State of Delaware as it exists on the date hereof or as it may hereafter be
amended permits the limitation or elimination of the liability of directors, no
director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director. No
amendment to or repeal of this Paragraph 9 shall apply to or have any effect on
the liability of any director of the Corporation for or with respect to any acts
or omissions of such director occurring prior to such amendment or repeal.
TENTH. (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.
(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 Paragraph 10 or incurred by an Indemnitee in connection with any proceeding
referred to in Section (a) of this Paragraph 10, 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 in furtherance
of the provisions of this Paragraph 10 and may create a trust fund, grant a
security interest or use other means (including, without limitation, a letter of
credit) to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Paragraph 10.
(c) Indemnification; Not Exclusive Right. The right of indemnification
provided in this Paragraph 10 shall not be exclusive of any other rights to
which those seeking indemnification may otherwise be entitled, and the
provisions of this Paragraph 10 shall inure to the benefit of the heirs and
legal representatives of any person entitled to indemnity under this Paragraph
10 and shall be applicable to Proceedings commenced or continuing after the
adoption of this Paragraph 10, 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 provisions, the following procedures, presumptions and remedies shall
apply with respect to advancement of expenses and the right to indemnification
under this Paragraph 10:
<PAGE> 74
Exhibit 22-A
Page 4 of 7
(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 Paragraph 10.
(2) Procedure for Determination of Entitlement to Indemnification. (i) To
obtain indemnification under this Paragraph 10, 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 60 days
after receipt by the Corporation of the written request for indemnification
together with Supporting Documentation. The Secretary of the Corporation shall,
promptly upon receipt of such a request for indemnification, advise the Board of
Directors in writing the Indemnitee has requested indemnification.
(ii) The Indemnitee's entitlement to indemnification under this Paragraph
10 shall be determined in one of the following ways: (A) by a majority vote of
the Disinterested Directors (as hereinafter defined), if 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 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, if they constitute a quorum of the Board of Directors,
present the issue of entitlement to indemnification to the stockholders for
their determination); or (D) as provided in Section (d)(3).
(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 Disinterested 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 Paragraph 10, if a Change of Control shall have
occurred, the Indemnitee shall be presumed to be entitled to indemnification
under this Paragraph 10 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
<PAGE> 75
Exhibit 22-A
Page 5 of 7
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 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 pleas 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
Paragraph 10, (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
Paragraph 10.
(ii) If a determination shall have been made or deemed to have been made,
pursuant to Section (d)(2) or (3), that the Indemnitee is entitled to
Indemnitee, the Corporation shall be obligated to pay the amounts constituting
such indemnification within five days after such determination has been made or
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 or in the Supporting Documentation or (C) such
indemnification is prohibited by law. In the event that (x) advancement of
expenses if not timely made pursuant to Section (d)(l) 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 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
<PAGE> 76
Exhibit 22-A
Page 6 of 7
this Paragraph 10 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 Paragraph 10.
(iv) In the event that the Indemnitee, pursuant to this Section (d)(4),
seeks a judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of, this Paragraph 10, 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.
(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 or 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 Director 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 consent, 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 the
representation: (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 Paragraph 10. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person
<PAGE> 77
Exhibit 22-A
Page 7 of 7
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 is an action to determine
the Indemnitee's rights under this Paragraph 10.
(e) Serverability. If any provision or provisions of the Paragraph 10
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(i) the validity, legality and enforceability of the remaining provision of this
Paragraph 10 (including, without limitation, all portions of any paragraph of
this Paragraph 10 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 Paragraph 10 (including, without limitation,
all portions of any paragraph of this Paragraph 10 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.
ELEVENTH. Meeting of the 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.
TWELFTH. 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.
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do 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 14th day of September, 1999.
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<PAGE> 78
Exhibit 23-A
Page 1 of 7
CERTIFICATE OF INCORPORATION
OF
COLUMBIA ELECTRIC LIBERTY II CORPORATION
FIRST. The name of the Corporation is Columbia Electric Liberty II
Corporation.
SECOND. The address of its registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares of stock which the Corporation shall
have authority to issue is three thousand (3,000) shares and the par value is
One Cent ($0.01) per share.
FIFTH. The name and mailing address of the incorporator is as follows:
Name Mailing Address
The name and mailing address of each person who is to serve as a
director until the firm annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
Michael J. Gluckman 13880 Dulles Corner Lane, Herndon, VA 20171-4600
Fredric R. Gumbinner 13880 Dulles Corner Lane, Herndon, VA 20171-4600
Robert M. Zulandi 13880 Dulles Corner Lane, Herndon, VA 20171-4600
</TABLE>
SIXTH. The Corporation is to have perpetual existence.
SEVENTH. 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 two (2) nor more than fifteen (15).
The directors need not be stockholders.
EIGHTH. 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.
<PAGE> 79
Exhibit 23-A
Page 2 of 7
(b) Subject to the applicable provisions of the by-laws then in
effect, to determine, from time to time, whether and to what extent 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 proper 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 the 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, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; provided, however,
the by-laws may provide that in the absence of 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.
(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.
<PAGE> 80
Exhibit 23-A
Page 3 of 7
NINTH. To the fullest extent that the General Corporation Law of the
State of Delaware as it exists on the date hereof or as it may hereafter be
amended permits the limitation or elimination of the liability of directors, no
director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director. No
amendment to or repeal of this Paragraph 9 shall apply to or have any effect on
the liability of any director of the Corporation for or with respect to any acts
or omissions of such director occurring prior to such amendment or repeal.
TENTH. (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.
(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 Paragraph 10 or incurred by an Indemnitee in connection with any proceeding
referred to in Section (a) of this Paragraph 10, 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 in furtherance
of the provisions of this Paragraph 10 and may create a trust fund, grant a
security interest or use other means (including, without limitation, a letter of
credit) to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Paragraph 10.
(c) Indemnification; Not Exclusive Right. The right of indemnification
provided in this Paragraph 10 shall not be exclusive of any other rights to
which those seeking indemnification may otherwise be entitled, and the
provisions of this Paragraph 10 shall inure to the benefit of the heirs and
legal representatives of any person entitled to indemnity under this Paragraph
10 and shall be applicable to Proceedings commenced or continuing after the
adoption of this Paragraph 10, 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 provisions, the following procedures, presumptions and remedies shall
apply with respect to advancement of expenses and the right to indemnification
under this Paragraph 10:
(1) Advance of Expenses. All reasonable expenses incurred by or on
behalf of the
<PAGE> 81
Exhibit 23-A
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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 Paragraph 10.
(2) Procedure for Determination of Entitlement to Indemnification. (i)
To obtain indemnification under this Paragraph 10, 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 60 days
after receipt by the Corporation of the written request for indemnification
together with Supporting Documentation. The Secretary of the Corporation shall,
promptly upon receipt of such a request for indemnification, advise the Board of
Directors in writing the Indemnitee has requested indemnification.
(ii) The Indemnitee's entitlement to indemnification under this
Paragraph 10 shall be determined in one of the following ways: (A) by a majority
vote of the Disinterested Directors (as hereinafter defined), if 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 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, if they constitute a quorum of the Board of Directors,
present the issue of entitlement to indemnification to the stockholders for
their determination); or (D) as provided in Section (d)(3).
(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 Disinterested 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 Paragraph 10, if a Change of Control shall have
occurred, the Indemnitee shall be presumed to be entitled to indemnification
under this Paragraph 10 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
<PAGE> 82
Exhibit 23-A
Page 5 of 7
appointed or shall not have made a determination within 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 (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 pleas 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
Paragraph 10, (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
Paragraph 10.
(ii) If a determination shall have been made or deemed to have been
made, pursuant to Section (d)(2) or (3), that the Indemnitee is entitled to
Indemnitee, the Corporation shall be obligated to pay the amounts constituting
such indemnification within five days after such determination has been made or
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 or in the Supporting Documentation or (C) such
indemnification is prohibited by law. In the event that (x) advancement of
expenses if not timely made pursuant to Section (d)(l) 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 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 Paragraph 10 are not valid, binding and
enforceable and shall stipulate in any such court or
<PAGE> 83
Exhibit 23-A
Page 6 of 7
before any such arbitrator that the Corporation is bound by all the provisions
of this Paragraph 10.
(iv) In the event that the Indemnitee, pursuant to this Section (d)(4),
seeks a judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of, this Paragraph 10, 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.
(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 or 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 Director 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 consent, 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 the
representation: (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 Paragraph 10. 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
<PAGE> 84
Exhibit 23-A
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State of Delaware, would have a conflict of interest in representing either the
Corporation or the Indemnitee is an action to determine the Indemnitee's rights
under this Paragraph 10.
(e) Serverability. If any provision or provisions of the Paragraph 10
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(i) the validity, legality and enforceability of the remaining provision of this
Paragraph 10 (including, without limitation, all portions of any paragraph of
this Paragraph 10 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 Paragraph 10 (including, without limitation,
all portions of any paragraph of this Paragraph 10 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.
ELEVENTH. Meeting of the 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.
TWELFTH. 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.
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do 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 14th day of September, 1999.
_________________________________
_________________________________
_________________________________
<PAGE> 85
Exhibit 24-A
Page 1 of 1
CERTIFICATE OF FORMATION
OF
COLUMBIA CAPACITY, LLC
This Certificate of Formation of Columbia Capacity, LLC (the "Company") is
being executed by the undersigned for the purpose of forming a limited liability
company pursuant to the Delaware Limited Liability Company Act, 6 Del. C.
Section 18-101, et seq.
FIRST: The name of the Company is Columbia Capacity, LLC.
SECOND: The registered office of the Company in the State of Delaware
is located at 1209 Orange Street the City of Wilmington,
County of New Castle, and the name of the registered agent at
that address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company,
has caused this Certificate of Formation to be duly executed as of the 11th day
of August, 1999.
______________________________________________
Michael J. Gluckman
<PAGE> 86
Exhibit 1-B
Page 1 of 14
COLUMBIA ENERGY RETAIL CORPORATION
*****
BYLAWS
*****
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 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
<PAGE> 87
Exhibit 1-B
Page 2 of 14
meeting, during 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 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.
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.
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
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 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 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.
Section 10. 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 eleven months from its date, unless the proxy provides for a longer
period.
<PAGE> 88
Exhibit 1-B
Page 3 of 14
Section 11. 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 actions 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. 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 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. 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 Certificate of
Incorporation or by these Bylaws 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
special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the Directors.
<PAGE> 89
Exhibit 1-B
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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 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 9. Unless otherwise 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 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 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.
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 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 Certificate 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
<PAGE> 90
Exhibit 1-B
Page 5 of 14
Corporation or a revocation of a dissolution, or amending the Bylaws 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.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise 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
Section 1. 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 to directors may also be given by telegram, data facsimile, or other
similar method of transmitting a written communication.
Section 2. Whenever any notice is required to be given under the
provisions of applicable statute or of the Certificate of Incorporation or of
these Bylaws, 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 Certificate of Incorporation
or these Bylaws otherwise provide.
<PAGE> 91
Exhibit 1-B
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Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose a president and a secretary.
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.
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 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.
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 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.
<PAGE> 92
Exhibit 1-B
Page 7 of 14
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 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 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> 93
Exhibit 1-B
Page 8 of 14
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 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 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.
<PAGE> 94
Exhibit 1-B
Page 9 of 14
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.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. 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, 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.
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.
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 Energy Group 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, 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
<PAGE> 95
Exhibit 1-B
Page 10 of 14
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, 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.
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.
(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
<PAGE> 96
Exhibit 1-B
Page 11 of 14
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 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 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).
(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
<PAGE> 97
Exhibit 1-B
Page 12 of 14
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 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 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 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
<PAGE> 98
Exhibit 1-B
Page 13 of 14
(B) such indemnification is prohibited by law. In the event that (X) advancement
of expenses is not timely made pursuant to Section (d)(l), 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 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 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 of Directors
<PAGE> 99
Exhibit 1-B
Page 14 of 14
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 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.
ARTICLE IX
AMENDMENTS
Section 1. 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> 100
Exhibit 2-B
Page 1 of 15
COLUMBIA FINANCE CORPORATION
*****
BYLAWS
*****
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 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.
<PAGE> 101
Exhibit 2-B
Page 2 of 15
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 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 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.
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.
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
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 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 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.
Section 10. 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
<PAGE> 102
Exhibit 2-B
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proxy shall be voted on after eleven months from its date, unless the proxy
provides for a longer period.
Section 11. 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 actions 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. 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 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 Certificate of
Incorporation or by these Bylaws 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
<PAGE> 103
Exhibit 2-B
Page 4 of 15
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.
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 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 9. Unless otherwise 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 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 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.
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 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
<PAGE> 104
Exhibit 2-B
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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 Certificate 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 Bylaws 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.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise 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
Section 1. 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 to directors may also be given by telegram, data facsimile, or other
similar method of transmitting a written communication.
Section 2. Whenever any notice is required to be given under the
provisions of applicable statute or of the Certificate of Incorporation or of
these Bylaws, 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-
<PAGE> 105
Exhibit 2-B
Page 6 of 15
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 Certificate of Incorporation or these Bylaws 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.
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.
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 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.
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 custody of the
corporate seal of the Corporation and he, or
<PAGE> 106
Exhibit 2-B
Page 7 of 15
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 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 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
<PAGE> 107
Exhibit 2-B
Page 8 of 15
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.
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 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
<PAGE> 108
Exhibit 2-B
Page 9 of 15
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 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.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. 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, 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.
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.
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, any Assistant
Secretary, the Treasurer, or any Assistant Treasurer; provided that in every
case at least one such officer shall be the President, a Vice President
Treasurer 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
<PAGE> 109
Exhibit 2-B
Page 10 of 15
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 Energy Group 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, 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, 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.
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.
(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
<PAGE> 110
Exhibit 2-B
Page 11 of 15
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 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 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
<PAGE> 111
Exhibit 2-B
Page 12 of 15
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).
(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 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 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
<PAGE> 112
Exhibit 2-B
Page 13 of 15
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)(l),
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 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 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
<PAGE> 113
Exhibit 2-B
Page 14 of 15
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 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 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> 114
Exhibit 2-B
Page 15 of 15
ARTICLE IX
AMENDMENTS
Section 1. 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> 115
Exhibit 3-B
Page 1 of 15
COLUMBIA ACCOUNTS RECEIVABLE CORPORATION
*****
BYLAWS
*****
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 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
<PAGE> 116
Exhibit 3-B
Page 2 of 15
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 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 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.
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.
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
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 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 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> 117
Exhibit 3-B
Page 3 of 15
Section 10. 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 eleven months from its date, unless the proxy provides for a longer
period.
Section 11. 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 actions 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. 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 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 Certificate of
Incorporation or by these Bylaws 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
<PAGE> 118
Exhibit 3-B
Page 4 of 15
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 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 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 9. Unless otherwise 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 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 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.
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
<PAGE> 119
Exhibit 3-B
Page 5 of 15
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 amending the Certificate 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
Bylaws 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.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise 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
Section 1. 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 to directors may also be given by telegram, data facsimile, or other
similar method of transmitting a written communication.
Section 2. Whenever any notice is required to be given under the
provisions of applicable statute or of the Certificate of Incorporation or of
these Bylaws, 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.
<PAGE> 120
Exhibit 3-B
Page 6 of 15
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 Certificate of Incorporation
or these Bylaws 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.
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.
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 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.
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.
<PAGE> 121
Exhibit 3-B
Page 7 of 15
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 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 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,
<PAGE> 122
Exhibit 3-B
Page 8 of 15
then in the order of their election), shall, in the absence of the 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.
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 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.
<PAGE> 123
Exhibit 3-B
Page 9 of 15
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 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.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. 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, 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.
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> 124
Exhibit 3-B
Page 10 of 15
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, any Assistant
Secretary, the Treasurer, or any Assistant Treasurer; provided that in every
case at least one such officer shall be the President, a Vice President
Treasurer 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 Energy Group 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, 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, 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.
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,
<PAGE> 125
Exhibit 3-B
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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.
(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 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.
<PAGE> 126
Exhibit 3-B
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(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 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).
(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 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
<PAGE> 127
Exhibit 3-B
Page 13 of 15
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 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 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)(l),
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 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.
<PAGE> 128
Exhibit 3-B
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(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 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 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
<PAGE> 129
Exhibit 3-B
Page 15 of 15
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
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.
ARTICLE IX
AMENDMENTS
Section 1. 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> 130
Exhibit 4-B
Page 1 of 15
COLUMBIA PETROLEUM CORPORATION
*****
BYLAWS
*****
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 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
<PAGE> 131
Exhibit 4-B
Page 2 of 15
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 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 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.
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.
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
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 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 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> 132
Exhibit 4-B
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Section 10. 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 eleven months from its date, unless the proxy provides for a longer
period.
Section 11. 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 actions 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. 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 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 Certificate of
Incorporation or by these Bylaws 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
<PAGE> 133
Exhibit 4-B
Page 4 of 15
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 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 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 9. Unless otherwise 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 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 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.
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
<PAGE> 134
Exhibit 4-B
Page 5 of 15
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 amending the Certificate 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
Bylaws 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.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise 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
Section 1. 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 to directors may also be given by telegram, data facsimile, or other
similar method of transmitting a written communication.
Section 2. Whenever any notice is required to be given under the
provisions of applicable statute or of the Certificate of Incorporation or of
these Bylaws, 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.
<PAGE> 135
Exhibit 4-B
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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 Certificate of Incorporation
or these Bylaws 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.
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.
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 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.
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.
<PAGE> 136
Exhibit 4-B
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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 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 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,
<PAGE> 137
Exhibit 4-B
Page 8 of 15
then in the order of their election), shall, in the absence of the 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.
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 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.
<PAGE> 138
Exhibit 4-B
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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 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.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. 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, 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.
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> 139
Exhibit 4-B
Page 10 of 15
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 Energy Group 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, 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, 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.
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
<PAGE> 140
Exhibit 4-B
Page 11 of 15
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.
(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 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.
<PAGE> 141
Exhibit 4-B
Page 12 of 15
(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 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).
(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 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
<PAGE> 142
Exhibit 4-B
Page 13 of 15
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 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 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)(l),
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 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.
<PAGE> 143
Exhibit 4-B
Page 14 of 15
(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 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 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,
<PAGE> 144
Exhibit 4-B
Page 15 of 15
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 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.
ARTICLE IX
AMENDMENTS
Section 1. 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> 145
Exhibit 5-B
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CP HOLDINGS, INC.
*****
BYLAWS
*****
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 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
<PAGE> 146
Exhibit 5-B
Page 2 of 15
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 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 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.
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.
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
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 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 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> 147
Exhibit 5-B
Page 3 of 15
Section 10. 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 eleven months from its date, unless the proxy provides for a longer
period.
Section 11. 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 actions 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. 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 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 Certificate of
Incorporation or by these Bylaws 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
<PAGE> 148
Exhibit 5-B
Page 4 of 15
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 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 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 9. Unless otherwise 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 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 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.
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
<PAGE> 149
Exhibit 5-B
Page 5 of 15
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 amending the Certificate 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
Bylaws 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.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise 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
Section 1. 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 to directors may also be given by telegram, data facsimile, or other
similar method of transmitting a written communication.
Section 2. Whenever any notice is required to be given under the
provisions of applicable statute or of the Certificate of Incorporation or of
these Bylaws, 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.
<PAGE> 150
Exhibit 5-B
Page 6 of 15
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 Certificate of Incorporation
or these Bylaws 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.
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.
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 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.
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.
<PAGE> 151
Exhibit 5-B
Page 7 of 15
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 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 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,
<PAGE> 152
Exhibit 5-B
Page 8 of 15
then in the order of their election), shall, in the absence of the 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.
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 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.
<PAGE> 153
Exhibit 5-B
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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 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.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. 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, 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.
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> 154
Exhibit 5-B
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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 Energy Group 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, 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, 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.
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
<PAGE> 155
Exhibit 5-B
Page 11 of 15
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.
(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 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.
<PAGE> 156
Exhibit 5-B
Page 12 of 15
(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 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).
(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 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
<PAGE> 157
Exhibit 5-B
Page 13 of 15
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 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 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)(l),
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 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.
<PAGE> 158
Exhibit 5-B
Page 14 of 15
(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 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 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
<PAGE> 159
Exhibit 5-B
Page 15 of 15
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
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.
ARTICLE IX
AMENDMENTS
Section 1. 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> 160
Exhibit 6-B
Page 1 of 3
AGREEMENT OF LIMITED PARTNERSHIP OF
COLUMBIA PROPANE, L.P.
This Agreement of Limited Partnership of Columbia Propane, L.P. (this
"Agreement") is entered into by and between CP Holdings, Inc. as general partner
(the "General Partner"), and Columbia Propane Corporation, as limited partner
(the "Initial Limited Partner").
The General Partner and the Initial Limited Partner hereby form a
limited partnership pursuant to and in accordance with the Delaware Revised
Uniform Limited Partnership Act (6 Del. C. Section 17-101, et seq.), as amended
from time to time (the "Act"), and hereby agree as follows:
1. Name. The name of the limited partnership formed hereby is Columbia
Propane, L.P. (the "Partnership").
2. Purpose. The Partnership is formed for the object and purpose of,
and the nature of the business to be conducted and promoted by the Partnership
is, engaging in any lawful act or activity for which limited partnerships may be
formed under the Act and engaging in any and all activities necessary or
incidental to the foregoing.
3. Registered Office. The address of the registered office of the
Partnership in the State of Delaware is c/o Corporation Service Company, 1013
Centre Road, City of Wilmington, County of New Castle, Delaware 19805.
4. Registered Agent. The name and address of the registered agent of
the Partnership for service of process on the Partnership in the State of
Delaware is Corporation Service Company, 1013 Centre Road, City of Wilmington,
County of New Castle, Delaware 19805.
5. Partners. The names and the business, residence or mailing addresses
of the General Partner and the Initial Limited Partner are as follows:
General Partner:
CP Holdings, Inc.
c/o Columbia Energy Group
13880 Dulles Corner Lane
Herndon, VA 20171
Attention: General Partner
Initial Limited Partner:
Columbia Propane Corporation
c/o Columbia Energy Group
13880 Dulles Corner Lane
Herndon, VA 20171
Attention: Initial Limited Partner
<PAGE> 161
Exhibit 6-B
Page 2 of 3
6. Powers. The powers of the General Partner include all powers,
statutory and otherwise, possessed by general partners under the laws of the
State of Delaware, except as otherwise set forth in the Certificate of Limited
Partnership or in this Agreement.
7. Dissolution. The Partnership shall dissolve, and its affairs shall
be wound up, on March 30, 2089, or at such earlier time as (a) all of the
partners of the Partnership approve in writing, (b) an event of withdrawal of a
general partner has occurred under the Act or (c) an entry of a decree of
judicial dissolution has occurred under Section 17-802 of the Act; provided,
however, the Partnership shall not be dissolved or required to be wound up upon
an event of withdrawal of a general partner described in clause (b) above if (i)
at the time of such event of withdrawal, there is at least one other general
partner of the Partnership who carries on the business of the Partnership (any
remaining general partner being hereby authorized to carry on the business of
the Partnership), or (ii) within 90 days after the occurrence of such event of
withdrawal, all remaining partners agree in writing to continue the business of
the Partnership and to the appointment, effective as of the date of the event of
withdrawal, of one or more additional general partners of the Partnership.
8. Capital Contributions. The partners of the Partnership have
contributed the following amounts, in cash, and no other property, to the
Partnership:
<TABLE>
<S> <C>
General Partner:
CP Holdings, Inc. $ 100
Initial Limited Partner:
Columbia Propane Corporation $ 1,000
</TABLE>
9. Additional Contributions. No partner of the Partnership is required
to make any additional capital contribution to the Partnership.
10. Capital Accounts. The Partnership shall maintain for each partner
owing a Partnership interest a separate capital account with respect to such
Partnership Interest in accordance with the rules of Treasury Regulation Section
1.704-1(b)(2)(iv).
11. Allocation of Profits and Losses. The Partnership's profits and
losses shall be allocated in proportion to the capital contributions of the
partners of the Partnership; provided, however, allocations of profit or losses
shall be subject to a "qualified income offset" as that term is defined in
Treasury Regulation Section 1.704-1(b)(2)(ii)(d).
12. Distributions. Distributions shall be made to the partners of the
Partnership at the times and in the aggregate amounts determined by the General
Partner. Such distributions shall be allocated among the partners of the
Partnership in the same proportion as their then capital account balances.
13. Assignments.
<PAGE> 162
Exhibit 6-B
Page 3 of 3
(a) The Initial Limited Partner may assign all or any part of
its partnership interest in the Partnership and may withdraw from the
Partnership only with the consent of the General Partner.
(b) The General Partner may assign all or any part of its
partnership interest in the Partnership and may withdraw from the Partnership
without the consent of the Initial Limited Partner.
14. Withdrawal. Except to the extent set forth in Section 13, no right
is given to any partner of the Partnership to withdraw from the Partnership.
15. Liquidation Distributions. In connection with any liquidation of
the partnership, all property and cash shall be distributed to the partners in
accordance with, and to the extent of, the positive balances in their respective
capital accounts, as determined after taking into all capital account
adjustments for the taxable year of the Partnership during which the liquidation
occurs. No partner shall be obligated to restore any negative balance in its
capital account upon liquidation of the Partnership.
16. Admission of Additional or Substitute Partners.
(a) One or more additional or substitute limited partners of
the Partnership may be admitted to the Partnership with only the consent of the
General Partner.
(b) One or more additional or substitute general partners of
the Partnership may be admitted to the Partnership with only the consent of the
General Partner.
17. Liability of Initial Limited Partner. The Initial Limited Partner
shall not have any liability for the obligations or liabilities of the
Partnership except to the extent provided in the Act.
18. Governing Law. This Agreement shall be governed by, and construed
under, the laws of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have duly executed this Agreement of Limited Partnership as of the 30th
day of March, 1999.
GENERAL PARTNER:
CP Holdings, Inc.
By:______________________________
Name:
Title:
INITIAL LIMITED PARTNER:
Columbia Propane Corporation
By:______________________________
Name:
Title:
<PAGE> 163
Exhibit 7-B
Page 1 of 58
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
NATIONAL PROPANE, L.P.
<PAGE> 164
Exhibit 7-B
Page 2 of 58
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I Definitions
1.1 Definitions..............................................................................................5
1.2 Construction............................................................................................13
ARTICLE II Organization
2.1 Formation; Continuation.................................................................................13
2.2 Name....................................................................................................14
2.3 Registered Office; Registered Agent; Principal Office; Other Offices....................................14
2.4 Purpose and Business....................................................................................14
2.5 Powers..................................................................................................15
2.6 Power of Attorney.......................................................................................15
2.7 Term....................................................................................................16
2.8 Title to Partnership Assets.............................................................................16
ARTICLE III Rights of the Limited Partners
3.1 Limitation of Liability.................................................................................17
3.2 Management of Business..................................................................................17
3.3 Rights of Limited Partners Relating to the Partnership..................................................17
3.4 Outside Activities of the Limited Partners..............................................................19
ARTICLE IV Transfer of Partner Interests
4.1 Transfer Generally......................................................................................19
4.2 Transfer of General Partner Partner Interest............................................................19
4.3 Transfer of Limited Partner Partner Interests...........................................................19
4.4 Restrictions on Transfers...............................................................................20
4.5 Put and Call Transactions Involving Special Limited Partner Partner Interests...........................20
ARTICLE V Contributions and Initial Transfers
5.1 Initial Contributions...................................................................................21
5.2 Contributions Pursuant to the Purchase Agreement........................................................22
5.3 Additional Capital Contributions........................................................................22
5.4 Interest and Withdrawal.................................................................................23
5.5 Capital Accounts........................................................................................23
5.6 Loans from Partners.....................................................................................25
</TABLE>
<PAGE> 165
Exhibit 7-B
Page 3 of 58
<TABLE>
<S> <C> <C>
5.7 Limited Preemptive Rights...............................................................................25
5.8 Fully Paid and Non-Assessable Nature of Limited Partner Partner Interests...............................26
ARTICLE VI Allocations and Distributions
6.1 Allocations for Capital Account Purposes................................................................26
6.2 Allocations for Tax Purposes............................................................................30
6.3 Distributions...........................................................................................32
ARTICLE VII Management and Operation of Business
7.1 Management..............................................................................................33
7.2 Certificate of Limited Partnership......................................................................34
7.3 Restrictions on Managing General Partner's Authority....................................................35
7.4 Reimbursement of the General Partners...................................................................35
7.5 Outside Activities......................................................................................36
7.6 Loans from the General Partners; Loans or Contributions from the
Partnership; Contracts with Affiliates; Certain Restrictions on the General Partners....................36
7.7 Indemnification.........................................................................................38
7.8 Liability of Indemnitees................................................................................39
7.9 Resolution of Conflicts of Interest.....................................................................40
7.10 Other Matters Concerning the Managing General Partner...................................................41
7.11 Reserved................................................................................................42
7.12 Reliance by Third Parties...............................................................................42
ARTICLE VIII Books, Records, Accounting and Reports
8.1 Records and Accounting..................................................................................42
8.2 Fiscal Year.............................................................................................43
ARTICLE IX Tax Matters
9.1 Preparation of Tax Returns..............................................................................43
9.2 Tax Elections...........................................................................................43
9.3 Tax Controversies.......................................................................................43
9.4 Withholding.............................................................................................44
ARTICLE X Admission of Partners
10.1 Admission of the General Partners and Limited Partners..................................................44
10.2 Admission of Substituted Limited Partners...............................................................44
10.3 Admission of Successor or Transferee General Partners...................................................44
10.4 Admission of Additional Limited Partners................................................................45
10.5 Amendment of Agreement and Certificate of Limited Partnership...........................................45
</TABLE>
<PAGE> 166
Exhibit 7-B
Page 4 of 58
<TABLE>
<S> <C> <C>
ARTICLE XI Withdrawal or Removal of Partners
11.1 Withdrawal of the General Partners......................................................................45
11.2 Removal of the Managing General Partner.................................................................47
11.3 Interest of Departing Partner and Successor General Partner.............................................47
11.4 Withdrawal of the Limited Partner.......................................................................48
ARTICLE XII Dissolution and Liquidation
12.1 Dissolution.............................................................................................48
12.2 Continuation of the Business of the Partnership After Dissolution.......................................49
12.3 Liquidator..............................................................................................50
12.4 Liquidation.............................................................................................50
12.5 Cancellation of Certificate of Limited Partnership......................................................51
12.6 Return of Capital Contributions.........................................................................51
12.7 Waiver of Partition.....................................................................................51
12.8 Capital Account Restoration.............................................................................51
ARTICLE XIII Amendment of Partnership Agreement
13.1 Amendment Procedure.....................................................................................52
13.2 Limitation..............................................................................................52
ARTICLE XIV Merger
14.1 Authority...............................................................................................52
14.2 Procedure for Merger or Consolidation...................................................................53
14.3 Approval by Class A Limited Partners of Merger or Consolidation.........................................54
14.4 Certificate of Merger...................................................................................54
14.5 Effect of Merger........................................................................................54
ARTICLE XV General Provisions
15.1 Addresses and Notices...................................................................................55
15.2 References..............................................................................................55
15.3 Further Action..........................................................................................55
15.4 Binding Effect..........................................................................................55
15.5 Integration.............................................................................................55
15.6 Creditors...............................................................................................56
15.7 Waiver..................................................................................................56
15.8 Counterparts............................................................................................56
15.9 Applicable Law..........................................................................................56
15.10 Invalidity of Provisions................................................................................56
</TABLE>
<PAGE> 167
Exhibit 7-B
Page 5 of 58
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
NATIONAL PROPANE, L.P.
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF National
Propane, L.P. dated as of July 19, 1999 is entered into by and among CP
Holdings, Inc., a Delaware corporation, as the Managing General Partner,
Columbia Propane, L.P., a Delaware limited partnership as a Class A Limited
Partner, and National Propane Corporation, a Delaware corporation, as the
Special Limited Partner, together with any other Persons who become Partners in
the Partnership or parties hereto as provided herein. In consideration of the
covenants, conditions and agreements contained herein, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS
I.1 DEFINITIONS.
The following definitions shall be for all purposes, unless otherwise
clearly indicated to the contrary, applied to the terms used in this Agreement.
"Additional Limited Partner" means a Person admitted to the Partnership
as a Limited Partner pursuant to Section 10.4 and who is shown as such on the
books and records of the Partnership.
"Adjusted Capital Account" means the Capital Account maintained for
each Partner as of the end of each fiscal year of the Partnership, (a) increased
by any amounts that such Partner is obligated to restore under the standards set
by Treasury Regulation Section 1.704-1(b)(2)(ii)(c) (or is deemed obligated to
restore under Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5)) and (b)
decreased by (i) the amount of all losses and deductions that, as of the end of
such fiscal year, are reasonably expected to be allocated to such Partner in
subsequent years under Sections 704(e)(2) and 706(d) of the Code and Treasury
Regulation Section 1.751-1(b)(2)(ii), and (ii) the amount of all distributions
that, as of the end of such fiscal year, are reasonably expected to be made to
such Partner in subsequent years in accordance with the terms of this Agreement
or otherwise to the extent they exceed offsetting increases to such Partner's
Capital Account that are reasonably expected to occur during (or prior to) the
year in which such distributions are reasonably expected to be made (other than
increases as a result of a minimum gain chargeback pursuant to Section 6.1(d)(i)
or 6.1(d)(ii)). The foregoing definition of Adjusted Capital Account is intended
to comply with the provisions of Treasury Regulation Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith. The
"Adjusted Capital Account" of a Partner in respect of a general partner interest
or any other specified interest in the Partnership shall be the amount which
such adjusted capital account would be if such general partner interest or other
interest in the Partnership were the
<PAGE> 168
Exhibit 7-B
Page 6 of 58
only interest in the Partnership held by a Partner from and after the date on
which such general partner interest or other interest was first issued.
"Adjusted Property" means any property the Carrying Value of which has
been adjusted pursuant to Section 5.5(d)(i) or 5.5(d)(ii).
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly through one or more intermediaries controls, is
controlled by or is under common control with (either directly or indirectly),
the Person in question. As used herein, the term "control" means the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"Agreed Allocation" means any allocation, other than a Required
Allocation, of an item of income, gain, loss or deduction pursuant to the
provisions of Section 6.1, including, without limitation, a Curative Allocation
(if appropriate to the context in which the term "Agreed Allocation" is used).
"Agreed Value" of any Contributed Property means the fair market value
of such property or other consideration at the time of contribution as
determined by the Managing General Partner using such reasonable method of
valuation as it may adopt, but subject to the Purchase Agreement. The Managing
General Partner shall, in its discretion but consistent with the Purchase
Agreement, use such method as it deems reasonable and appropriate to allocate
the aggregate Agreed Value of Contributed Properties contributed to the
Partnership in a single or integrated transaction among each separate property
on a basis proportional to the fair market value of each Contributed Property.
"Agreement" means this Amended and Restated Agreement of Limited
Partnership of National Propane, L.P., as it may be amended, supplemented or
restated from time to time.
"Assignee" means a Person to whom a limited partner interest has been
transferred in a manner permitted under this Agreement but who has not been
admitted as a Substituted Limited Partner.
"Audit Committee" means a committee of the Board of Directors of the
Managing General Partner composed entirely of two or more directors who are
neither officers, directors or employees of the Managing General Partner or any
Affiliate of the Managing General Partner.
"Available Cash" means, with respect to any Quarter ending prior to the
Liquidation Date,
(a) the sum of (i) all cash and cash equivalents of the
Partnership Group on hand at the end of such Quarter, and (ii) all additional
cash and cash equivalents of the Partnership Group on hand on the date of
determination of Available Cash with respect to such Quarter resulting from
borrowings for working capital purposes, in each case subsequent to the end of
such Quarter, less
(b) the amount of any cash reserves that is necessary or
appropriate in the reasonable discretion of the Managing General Partner to (i)
provide for the proper conduct of the business of
<PAGE> 169
Exhibit 7-B
Page 7 of 58
the Partnership Group (including reserves for future capital expenditures)
subsequent to such Quarter, or (ii) comply with applicable law or any loan
agreement, security agreement, mortgage, debt instrument or other agreement or
obligation to which any member of the Partnership Group is a party or by which
it is bound or its assets are subject; provided, however, that disbursements
made by a Group Member or cash reserves established, increased or reduced after
the end of such Quarter but on or before the date of determination of Available
Cash with respect to such Quarter shall be deemed to have been made,
established, increased or reduced, for purposes of determining Available Cash,
within such Quarter if the Managing General Partner so determines.
Notwithstanding the foregoing, "Available Cash" with respect to the
Quarter in which the Liquidation Date occurs and any subsequent Quarter shall
equal zero.
"Book-Tax Disparity" means with respect to any item of Contributed
Property or Adjusted Property, as of the date of any determination, the
difference between the Carrying Value of such Contributed Property or Adjusted
Property and the adjusted basis thereof for federal income tax purposes as of
such date. A Partner's share of the Partnership's Book-Tax Disparities in all of
its Contributed Property and Adjusted Property will be reflected by the
difference between such Partner's Capital Account balance as maintained pursuant
to Section 5.5 and the hypothetical balance of such Partner's Capital Account
computed as if it had been maintained strictly in accordance with federal income
tax accounting principles.
"Business Day" means Monday through Friday of each week, except that a
legal holiday recognized as such by the government of the United States of
America or the States of New York or Virginia shall not be regarded as a
Business Day.
"Capital Account" means the capital account maintained for a Partner
pursuant to Section 5.5.
"Capital Contribution" means any cash, cash equivalents or the Net
Agreed Value of Contributed Property that a Partner contributes to the
Partnership pursuant to this Agreement.
"Carrying Value" means (a) with respect to a Contributed Property, the
Agreed Value of such property reduced (but not below zero) by all depreciation,
amortization and cost recovery deductions charged to the Partners' and
Assignees' Capital Accounts in respect of such Contributed Property, and (b)
with respect to any other Partnership property, the adjusted basis of such
property for federal income tax purposes, in each case, as of the time of
determination and adjusted in accordance with Sections 5.5(d)(i) and 5.5(d)(ii)
and to reflect changes, additions or other adjustments to the Carrying Value, as
deemed appropriate by the Managing General Partner.
"Certificate of Limited Partnership" means the Certificate of Limited
Partnership of the Partnership filed with the Secretary of State of the State of
Delaware as referenced in Section 2.1, as such Certificate of Limited
Partnership may be amended, supplemented or restated from time to time.
<PAGE> 170
Exhibit 7-B
Page 8 of 58
"Class A Limited Partner" means Columbia Propane, L.P. and its
successors and permitted assigns as Class A Limited Partners of the Partnership,
and any other Person that after the date hereof is admitted to the Partnership
as a Class A Limited Partner.
"Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time. Any reference herein to a specific section or sections
of the Code shall be deemed to include a reference to any corresponding
provision of future law.
"Committed Capital" means (a) with respect to the Managing General
Partner, the MLP and the Special Limited Partner (or any successor thereto), the
amounts provided on Schedule A, adjusted to reflect any additional Capital
Contributions to the Partnership made by such Person and any distributions to
such Partner of any portion of such Partner's Capital Contribution or any amount
provided on Schedule A, in each case made after July 19, 1999 and (b) with
respect to any Partner other than Managing General Partner, the MLP and the
Special Limited Partner (or any successor thereto), such Partner's aggregate
Capital Contributions reduced by any distributions to such Partner of any
portion of such Partner's Capital Contributions. For purposes of this
definition, distributions shall be characterized as a return of a Partner's
Capital Contributions or any amount provided on Schedule A only to the extent
the aggregate distributions made to such Partner (or any predecessor) exceeds
the aggregate Net Income allocated to such Partner (or any predecessor) pursuant
to Article VI hereunder.
"Contributed Property" means each item of property or other asset, in
such form as may be permitted by the Delaware Act, but excluding cash,
contributed to the Partnership. Once the Carrying Value of a Contributed
Property is adjusted pursuant to Section 5.5(d), such property shall no longer
constitute a Contributed Property, but shall be deemed an Adjusted Property.
"Curative Allocation" means any allocation of an item of income, gain,
deduction, loss or credit pursuant to the provisions of Section 6.1(d)(ix).
"Debt Indemnity" has the meaning set forth in Section 9.2(a) of the
Purchase Agreement.
"Delaware Act" means the Delaware Revised Uniform Limited Partnership
Act, 6 Del C. ss.17- 101, et seq., as amended, supplemented or restated from
time to time, and any successor to such statute.
"Departing Partner" means a former General Partner from and after the
effective date of any withdrawal or removal of such former General Partner
pursuant to Section 11.1 or 11.2.
"Economic Risk of Loss" has the meaning set forth in Treasury
Regulation Section 1.752-2(a).
"Effective Tax Rate" has the meaning set forth in Section 5.2 of the
Purchase Agreement.
"Event of Withdrawal" has the meaning assigned to such term in Section
11.1.
<PAGE> 171
Exhibit 7-B
Page 9 of 58
"General Partners" means the Managing General Partner and any other
Person that after the date hereof is admitted to the Partnership as a general
partner.
"Group Member" means a member of the Partnership Group.
"Indemnified Debt" has the meaning set forth in Section 9.2(a) of the
Purchase Agreement.
"Indemnitee" means (a) each General Partner, any Departing Partner and
any Person who is or was an Affiliate of one of the General Partners or any
Departing Partner, (b) any Person who is or was after the date hereof a
director, officer, employee, agent or trustee of the Partnership, the MLP or any
Subsidiary, (c) any Person who is or was after the date hereof a director,
officer, employee, agent or trustee of any General Partner or any Departing
Partner or any such Affiliate, and (d) any Person who is or was after the date
hereof serving at the request of any General Partner or any Departing Partner or
any such Affiliate as a director, officer, employee, partner, agent, fiduciary
or trustee of another Person; provided, that a Person shall not be an Indemnitee
by reason of providing, on a fee-for-services basis, trustee, fiduciary or
custodial services.
"Limited Partner" means the Class A Limited Partner, the Special
Limited Partner and any other Person that is admitted to the Partnership as a
limited partner of any class pursuant to the terms and conditions of this
Agreement; but the term Limited Partner shall not include any Person from and
after the time such Person withdraws as a Limited Partner from the Partnership.
"Liquidation Date" means (a) in the case of an event giving rise to the
dissolution of the Partnership of the type described in clauses (a) and (b) of
the first sentence of Section 12.2, the date on which the applicable time period
during which the Class A Limited Partners have the right to elect to
reconstitute the Partnership and continue its business has expired without such
an election being made, and (b) in the case of any other event giving rise to
the dissolution of the Partnership, the date on which such event occurs.
"Liquidator" means one or more Persons selected by the Managing General
Partner to perform the functions described in Section 12.3.
"Managing General Partner" means CP Holdings, Inc., a Delaware
corporation, and its successors and permitted assigns as Managing General
Partner of the Partnership and any other Person that after the date hereof holds
an interest as managing general partner in the Partnership.
"Merger Agreement" has the meaning assigned to such term in Section
14.1.
"MLP" means Columbia Propane, L.P., a Delaware limited partnership.
"MLP Agreement" means the Agreement of Limited Partnership of the MLP,
dated as of March 30, 1999.
<PAGE> 172
Exhibit 7-B
Page 10 of 58
"Net Agreed Value" means, (a) in the case of any Contributed Property,
the Agreed Value of such property reduced by any liabilities either assumed by
the Partnership upon such contribution or to which such property is subject when
contributed, and (b) in the case of any property distributed to a Partner by the
Partnership, the Partnership's Carrying Value of such property (as adjusted
pursuant to Section 5.5(d)(ii)) at the time such property is distributed,
reduced by any indebtedness either assumed by such Partner upon such
distribution or to which such property is subject at the time of distribution,
in either case, as determined under Section 752 of the Code.
"Net Income" means, for any taxable year, the excess, if any, of the
Partnership's items of income and gain (other than those items taken into
account in the computation of Net Termination Gain or Net Termination Loss) for
such taxable year over the Partnership's items of loss and deduction (other than
those items taken into account in the computation of Net Termination Gain or Net
Termination Loss) for such taxable year. The items included in the calculation
of Net Income shall be determined in accordance with Section 5.5(b) and shall
not include any items specially allocated under Section 6.1(d).
"Net Loss" means, for any taxable year, the excess, if any, of the
Partnership's items of loss and deduction (other than those items taken into
account in the computation of Net Termination Gain or Net Termination Loss) for
such taxable year over the Partnership's items of income and gain (other than
those items taken into account in the computation of Net Termination Gain or Net
Termination Loss) for such taxable year. The items included in the calculation
of Net Loss shall be determined in accordance with Section 5.5(b) and shall not
include any items specially allocated under Section 6.1(d).
"Net Termination Gain" means, for any taxable year, the sum, if
positive, of all items of income, gain, loss or deduction recognized by the
Partnership after the Liquidation Date. The items included in the determination
of Net Termination Gain shall be determined in accordance with Section 5.5(b)
and shall not include any items of income, gain, loss or deduction specially
allocated under Section 6.1(d).
"Net Termination Loss" means, for any taxable year, the sum, if
negative, of all items of income, gain, loss or deduction recognized by the
Partnership after the Liquidation Date. The items included in the determination
of Net Termination Loss shall be determined in accordance with Section 5.5(b)
and shall not include any items of income, gain, loss or deduction specially
allocated under Section 6.1(d).
"Nonrecourse Built-in Gain" means with respect to any Contributed
Properties or Adjusted Properties that are subject to a mortgage or pledge
securing a Nonrecourse Liability, the amount of any taxable gain that would be
allocated to the Partners pursuant to Sections 6.2(b)(i)(A), 6.2(b)(ii)(A) and
6.2(b)(iii) if such properties were disposed of in a taxable transaction in full
satisfaction of such liabilities and for no other consideration.
"Nonrecourse Deductions" means any and all items of loss, deduction or
expenditures (described in Section 705(a)(2)(B) of the Code) that, in accordance
with the principles of Treasury Regulation Section 1.704-2(b), are attributable
to a Nonrecourse Liability.
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"Nonrecourse Liability" has the meaning set forth in Treasury
Regulation Section 1.752-1(a)(2).
"OLP Subsidiary" means a Subsidiary of the Partnership.
"Opinion of Counsel" means a written opinion of counsel (who may be
regular inside or outside counsel to the Managing General Partner or any
Affiliate of the Managing General Partner) acceptable to the Managing General
Partner in its reasonable discretion.
"Partner Nonrecourse Debt" has the meaning set forth in Treasury
Regulation Section 1.704-2(b)(4).
"Partner Nonrecourse Debt Minimum Gain" has the meaning set forth in
Treasury Regulation Section 1.704-2(i)(2).
"Partner Nonrecourse Deductions" means any and all items of loss,
deduction or expenditure (including, without limitation, any expenditure
described in Section 705(a)(2)(B) of the Code) that, in accordance with the
principles of Treasury Regulation Section 1.704-2(i), are attributable to a
Partner Nonrecourse Debt.
"Partners" means the General Partners and the Limited Partners.
"Partnership" means National Propane, L.P., a Delaware limited
partnership, and any successors thereto.
"Partnership Group" means the Partnership and the OLP Subsidiaries,
treated as a single consolidated entity.
"Partner Interest" means the interest of a Partner in the Partnership.
"Partnership Minimum Gain" means that amount determined in accordance
with the principles of Treasury Regulation Section 1.704-2(d).
"Percentage Interest" means the percentage interest in the Partnership
held by a Partner, expressed as a percentage, arrived at by dividing the
aggregate Committed Capital of such Partner (or any predecessor) at such time by
the aggregate Committed Capital of all the Partners (or any predecessors) at
such time.
"Person" means an individual or a corporation, limited liability
company, partnership, joint venture, trust, unincorporated organization,
association, government agency or political subdivision thereof or other entity.
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"Purchase Agreement" means the Purchase Agreement dated as of April 5,
1999, by and among the MLP, the Managing General Partner, Columbia Propane
Corporation, a Delaware corporation, National Propane Partners, L.P., a Delaware
limited partnership, the Special Limited Partner, National Propane SGP, Inc., a
Delaware corporation and Triarc Companies, Inc., a Delaware corporation.
"Quarter" means, unless the context requires otherwise, a fiscal
quarter of the Partnership.
"Recapture Income" means any gain recognized by the Partnership
(computed without regard to any adjustment required by Sections 734 or 743 of
the Code) upon the disposition of any property or asset of the Partnership,
which gain is characterized as ordinary income because it represents the
recapture of deductions previously taken with respect to such property or asset.
"Required Allocations" means (a) any limitation imposed on any
allocation of Net Losses or Net Termination Losses under Section 6.1(b) or
6.1(c)(ii) and (b) any allocation of an item of income, gain, loss or deduction
pursuant to Section 6.1(d)(i), 6.1(d)(ii), 6.1(d)(iii), 6.1(d)(iv), 6.1(d)(v),
6.1(d)(vi) or 6.1(d)(viii).
"Residual Gain" or "Residual Loss" means any item of gain or loss, as
the case may be, of the Partnership recognized for federal income tax purposes
resulting from a sale, exchange or other disposition of a Contributed Property
or Adjusted Property, to the extent such item of gain or loss is not allocated
pursuant to Section 6.2(b)(i)(A) or 6.2(b)(ii)(A), respectively, to eliminate
Book-Tax Disparities.
"Special Approval" means approval by a majority of the members of the
Audit Committee.
"Special Limited Partner" means National Propane Corporation and its
successors and permitted assigns as Special Limited Partner of the Partnership.
"Subsidiary" means, with respect to any Person, (a) a corporation of
which more than 50% of the voting power of shares entitled (without regard to
the occurrence of any contingency) to vote in the election of directors or other
governing body of such corporation is owned, directly or indirectly, at the date
of determination, by such Person, by one or more Subsidiaries of such Person or
a combination thereof, (b) a partnership (whether general or limited) in which
such Person or a Subsidiary of such Person is, at the date of determination, a
general or limited partner of such partnership, but only if more than 50% of the
Partner Interests of such partnership (considering all of the Partner Interests
of the partnership as a single class) is owned, directly or indirectly, at the
date of determination, by such Person, by one or more Subsidiaries of such
Person or a combination thereof or (c) any other Person (other than a
corporation or a partnership) in which such Person, one or more Subsidiaries of
such Person, or a combination thereof, directly or indirectly, at the date of
determination has (i) at least a majority ownership interest or (ii) the power
to elect or direct the election of a majority of the directors or other
governing body of such Person.
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"Substituted Limited Partner" means a Person who is admitted as a
Limited Partner to the Partnership pursuant to Section 10.2 in place of and with
all the rights of a Limited Partner and who is shown as a Limited Partner on the
books and records of the Partnership.
"Surviving Business Entity" has the meaning assigned to such term in
Section 14.2(b).
"Transfer" has the meaning assigned to such term in Section 4.1(a).
"Unrealized Gain" attributable to any item of Partnership property
means, as of any date of determination, the excess, if any, of (a) the fair
market value of such property as of such date (as determined under Section
5.5(d)) over (b) the Carrying Value of such property as of such date (prior to
any adjustment to be made pursuant to Section 5.5(d) as of such date).
"Unrealized Loss" attributable to any item of Partnership property
means, as of any date of determination, the excess, if any, of (a) the Carrying
Value of such property as of such date (prior to any adjustment to be made
pursuant to Section 5.5(d) as of such date) over (b) the fair market value of
such property as of such date (as determined under Section 5.5(d)).
"U.S. GAAP" means United States Generally Accepted Accounting
Principles consistently applied.
"Withdrawal Opinion of Counsel" has the meaning assigned to such term
in Section 11.1(b).
I.2 CONSTRUCTION.
Unless the context requires otherwise: (a) any pronoun used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns, pronouns and verbs shall include the plural and
vice versa; (b) references to Articles and Sections refer to Articles and
Sections of this Agreement; and (c) "include" or "includes" means includes,
without limitation, and "including" means including, without limitation.
ARTICLE II
ORGANIZATION
II.1 FORMATION; CONTINUATION.
The Partnership was formed as a Delaware limited partnership as of
March 16, 1996, pursuant to the filing of the Certificate of Limited Partnership
with the Secretary of State of the State of Delaware, and the parties hereby
agree to continue the Partnership as a limited partnership under the Delaware
Act. The Managing General Partner, the MLP and the Special Limited Partner
hereby amend and restate in its entirety the amended Agreement of Limited
Partnership of National Propane, L.P. dated as of July 2, 1996, as previously
amended and supplemented. This amendment
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and restatement shall become effective on the date of this Agreement. Except as
expressly provided to the contrary in this Agreement, the rights and obligations
of the Partners and the administration, dissolution and termination of the
Partnership shall be governed by the Delaware Act. All Partner Interests shall
constitute personal property of the owner thereof for all purposes. Pursuant to
this amendment and restatement, the existing limited partner interests in the
Partnership have been reclassified into two separate classes, the Class A
Limited Partner Partner Interests and the Special Limited Partner Partner
Interests, having such relative rights, powers and duties as this Agreement
provides.
II.2 NAME.
The name of the Partnership shall be "National Propane, L.P." The
Partnership's business may be conducted under any other name or names deemed
necessary or appropriate by the Managing General Partner, including, in its sole
discretion, the name of the Managing General Partner. The words "Limited
Partnership," "L.P.," "Ltd." or similar words or letters shall be included in
the Partnership's name where necessary for the purpose of complying with the
laws of any jurisdiction that so requires. The Managing General Partner in its
discretion may change the name of the Partnership at any time and from time to
time and shall notify the Limited Partners of such change in the next regular
communication to the Limited Partners.
II.3 REGISTERED OFFICE; REGISTERED AGENT; PRINCIPAL OFFICE; OTHER
OFFICES.
Unless and until changed by the Managing General Partner, the
registered office of the Partnership in the State of Delaware shall be located
at 1209 Orange Street, New Castle County, Wilmington, Delaware 19801, and the
registered agent for service of process on the Partnership in the State of
Delaware at such registered office shall be CT Corporation System. The principal
office of the Partnership shall be located at 9200 Arboretum Parkway, Suite 140,
Richmond, Virginia 23235 or such other place as the Managing General Partner may
from time to time designate by notice to the Limited Partners. The Partnership
may maintain offices at such other place or places within or outside the State
of Delaware as the General Partner deems necessary or appropriate. The address
of the Managing General Partner shall be 9200 Arboretum Parkway, Suite 140,
Richmond, VA 23235 or such other place as the Managing General Partner may from
time to time designate by notice to the Limited Partners.
II.4 PURPOSE AND BUSINESS.
The purpose and nature of the business to be conducted by the
Partnership shall be to (a) manage and operate the assets of the Partnership and
any similar assets or properties, and to engage directly in, or to enter into or
form any corporation, partnership, joint venture, limited liability company or
other arrangement to engage indirectly in, any type of business or activity
engaged in by the Partnership prior to the date hereof and, in connection
therewith, to exercise all of the rights and powers conferred upon the
Partnership pursuant to the agreements relating to such business activity, (b)
engage directly in, or enter into or form any corporation, partnership, joint
venture, limited liability company or other arrangement to engage indirectly in,
any business activity that is
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approved by the Managing General Partner and which may lawfully be conducted by
a limited partnership organized pursuant to the Delaware Act and, in connection
therewith, to exercise all of the rights and powers conferred upon the
Partnership pursuant to the agreements relating to such business activity and
(c) do anything necessary or appropriate to the foregoing, including the making
of capital contributions or loans to any Group Member, the MLP or any Subsidiary
of the MLP. The Managing General Partner and its Affiliates have no obligation
or duty to the Partnership, the Limited Partners, or the Assignees to propose or
approve, and in its discretion may decline to propose or approve, the conduct by
the Partnership of any business.
II.5 POWERS.
The Partnership shall be empowered to do any and all acts and things
necessary, appropriate, proper, advisable, incidental to or convenient for the
furtherance and accomplishment of the purposes and business described in Section
2.4 and for the protection and benefit of the Partnership.
II.6 POWER OF ATTORNEY.
(a) Each of the Limited Partners hereby constitutes and
appoints the Managing General Partner and, if a Liquidator shall have been
selected pursuant to Section 12.3, the Liquidator, severally (and any successor
to the Liquidator by merger, transfer, assignment, election or otherwise) and
each of their authorized officers and attorneys-in-fact, as the case may be,
with full power of substitution, as his true and lawful agent and
attorney-in-fact, with full power and authority in his name, place and stead,
to:
(i) execute, swear to, acknowledge, deliver, file and
record in the appropriate public offices (A) all certificates,
documents and other instruments (including this Agreement and the
Certificate of Limited Partnership and all amendments or restatements
hereof or thereof) that the Managing General Partner or the Liquidator
deems necessary or appropriate to form, qualify or continue the
existence or qualification of the Partnership as a limited partnership
(or a partnership in which the limited partners have limited liability)
in the State of Delaware and in all other jurisdictions in which the
Partnership may conduct business or own property; (B) all certificates,
documents and other instruments that the Managing General Partner or
the Liquidator deems necessary or appropriate to reflect, in accordance
with its terms, any amendment, change, modification or restatement of
this Agreement; (C) all certificates, documents and other instruments
(including conveyances and a certificate of cancellation) that the
Managing General Partner or the Liquidator deems necessary or
appropriate to reflect the dissolution and liquidation of the
Partnership pursuant to the terms of this Agreement; (D) all
certificates, documents and other instruments relating to the
admission, withdrawal, removal or substitution of any Partner pursuant
to, or other events described in, Article IV, X, XI or XII; (E) all
certificates, documents and other instruments relating to the
determination of the rights, preferences and privileges of any class or
series of Partner Interests; and (F) all certificates, documents and
other instruments (including agreements and a certificate of merger)
relating to a merger or consolidation of the Partnership pursuant to
Article XIV; and
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(ii) execute, swear to, acknowledge, deliver, file
and record all ballots, consents, approvals, waivers, certificates,
documents and other instruments necessary or appropriate, in the
discretion of the Managing General Partner or the Liquidator, to make,
evidence, give, confirm or ratify any vote, consent, approval,
agreement or other action that is made or given by the Partners
hereunder or is consistent with the terms of this Agreement or is
necessary or appropriate, in the discretion of the Managing General
Partner or the Liquidator, to effectuate the terms or intent of this
Agreement; provided, that when the approval of the Class A Limited
Partners is required by any provision of this Agreement or the approval
of the Special Limited Partner is required by Section 13.2, the
Managing General Partner or the Liquidator may exercise the power of
attorney made in this Section 2.6(a)(ii) only after the necessary vote,
consent or approval of the Limited Partners is obtained.
(b) The foregoing power of attorney is hereby declared to
be irrevocable and a power coupled with an interest, and it shall survive and,
to the maximum extent permitted by law, not be affected by the subsequent death,
incompetency, disability, incapacity, dissolution, bankruptcy or termination of
the Limited Partners and the transfer of all or any portion of the Limited
Partners' Partner Interest and shall extend to the Limited Partners' heirs,
successors, assigns and personal representatives. The Limited Partners hereby
agree to be bound by any representation made by the Managing General Partner or
the Liquidator acting in good faith pursuant to such power of attorney; and the
Limited Partners hereby waive, to the maximum extent permitted by law, any and
all defenses that may be available to contest, negate or disaffirm the action of
the Managing General Partner or the Liquidator taken in good faith under such
power of attorney. The Limited Partners shall execute and deliver to the
Managing General Partner or the Liquidator, within 15 days after receipt of the
request therefor, such further designation, powers of attorney and other
instruments as the Managing General Partner or the Liquidator deems necessary to
effectuate this Agreement and the purposes of the Partnership.
II.7 TERM.
The Partnership commenced upon the filing of the Certificate of Limited
Partnership in accordance with the Delaware Act and shall continue in existence
until the close of Partnership business on December 31, 2086, or until the
earlier termination of the Partnership in accordance with the provisions of
Article XII.
II.8 TITLE TO PARTNERSHIP ASSETS.
Title to Partnership assets, whether real, personal or mixed and
whether tangible or intangible, shall be deemed to be owned by the Partnership
as an entity, and no Partner individually or collectively, shall have any
ownership interest in such Partnership assets or any portion thereof. Title to
any or all of the Partnership assets may be held in the name of the Partnership,
the Managing General Partner, one or more of its Affiliates or one or more
nominees, as the Managing General Partner may determine. The Managing General
Partner hereby declares and warrants that any
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Partnership assets for which record title is held in the name of the Managing
General Partner, one or more of its Affiliates or one or more nominees shall be
held by the Managing General Partner or such Affiliate or nominee for the use
and benefit of the Partnership in accordance with the provisions of this
Agreement; provided, however, that the Managing General Partner shall use
reasonable efforts to cause record title to such assets (other than those assets
in respect of which the Managing General Partner determines that the expense and
difficulty of conveyancing makes transfer of record title to the Partnership
impracticable) to be vested in the Partnership as soon as reasonably
practicable; provided, further, that, prior to the withdrawal or removal of the
Managing General Partner or as soon thereafter as practicable, the Managing
General Partner shall use reasonable efforts to effect the transfer of record
title to the Partnership and, prior to any such transfer, will provide for the
use of such assets in a manner satisfactory to the Managing General Partner. All
Partnership assets shall be recorded as the property of the Partnership in its
books and records, irrespective of the name in which record title to such
Partnership assets is held.
ARTICLE III
RIGHTS OF THE LIMITED PARTNERS
III.1 LIMITATION OF LIABILITY.
The Limited Partners shall have no liability under this Agreement
except as expressly provided in this Agreement or the Delaware Act.
III.2 MANAGEMENT OF BUSINESS.
No Limited Partner (other than the Managing General Partner, or any of
its Affiliates or any officer, director, employee, partner, agent or trustee of
the Managing General Partner or any of its Affiliates, or any officer, director,
employee or agent of a Group Member, in its capacity as such, if such Person
shall also be a Limited Partner) shall participate in the operation, management
or control (within the meaning of Section 17-303(a) of the Delaware Act) of the
Partnership's business, transact any business in the Partnership's name or have
the power to sign documents for or otherwise bind the Partnership. Any action
taken by any Affiliate of the Managing General Partner or any officer, director,
employee, partner, agent or trustee of the Managing General Partner or any of
its Affiliates, or any officer, member of the board of directors, employee or
agent of a Group Member, the MLP or any Subsidiary of the MLP, in its capacity
as such, shall not be deemed to be participation in the control of the business
of the Partnership by a limited partner of the Partnership (within the meaning
of the Delaware Act) and shall not affect, impair or eliminate the limitations
on the liability of the Limited Partners under this Agreement.
III.3 RIGHTS OF LIMITED PARTNERS RELATING TO THE PARTNERSHIP.
(a) In addition to other rights provided by this
Agreement or by applicable law, and except as limited by Section 3.3(b), and
subject to such reasonable standards (including
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standards governing what information and documents are to be furnished, at what
time and location) as may be established by the Managing General Partner
consistent with applicable law, each of the Limited Partners shall have the
right, for a purpose reasonably related to such Limited Partner's interest as a
limited partner in the Partnership, upon reasonable demand and at the Limited
Partner's own expense:
(i) to obtain true and full information regarding the
status of the business and financial condition of the Partnership;
(ii) promptly after becoming available, to obtain a
copy of the Partnership's federal, state and local tax returns for each
year;
(iii) to have furnished to it, a current list of the
name and last known business residence or mailing address of each
Partner;
(iv) to have furnished to it, a copy of this
Agreement and the Certificate of Limited Partnership and all amendments
thereto, together with a copy of the executed copies of all powers of
attorney pursuant to which this Agreement, the Certificate of Limited
Partnership and all amendments thereto have been executed;
(v) to obtain information regarding the amount of
cash and a description and statement of the Net Agreed Value of any
other Capital Contribution by each Partner and which each Partner has
agreed to contribute in the future, and the date on which each became a
Partner; and
(vi) to obtain such other information regarding the
affairs of the Partnership as is just and reasonable.
(b) The Managing General Partner may keep confidential
from any or all of the Limited Partners and Assignees, for such period of time
as the Managing General Partner deems reasonable, (i) any information that the
Managing General Partner reasonably believes to be in the nature of trade
secrets or (ii) other information the disclosure of which the Managing General
Partner in good faith believes (A) is not in the best interests of the MLP or
the Partnership Group, (B) could damage the MLP or the Partnership Group or its
business or (C) that the MLP or any Group Member is required by law or by
agreement with any third party to keep confidential (other than agreements with
Affiliates the primary purpose of which is to circumvent the obligations set
forth in this Section 3.3).
(c) Except as required by law or with the written consent
of the Managing General Partner, each Limited Partner shall keep confidential
and not disclose to any third party any information provided to it under this
Agreement or under law.
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III.4 OUTSIDE ACTIVITIES OF THE LIMITED PARTNERS.
Any Limited Partner shall be entitled to and may have business
interests and engage in business activities in addition to those relating to the
Partnership, including business interests and activities in direct competition
with the Partnership Group.
ARTICLE IV
TRANSFER OF PARTNER INTERESTS
IV.1 TRANSFER GENERALLY.
(a) The term "transfer," when used in this Agreement with
respect to a Partner Interest, shall be deemed to refer to a transaction by
which a Partner assigns its Partner Interest to another Person, and includes a
sale, assignment, gift, pledge, encumbrance, hypothecation, mortgage, exchange
or any other disposition by law or otherwise.
(b) No Partner Interest shall be transferred, in whole or
in part, except in accordance with the terms and conditions set forth in this
Article IV. Any transfer or purported transfer of a Partner Interest not made in
accordance with this Article IV shall be null and void.
(c) Nothing contained in this Agreement shall be
construed to prevent a disposition by any shareholder of a General Partner of
any or all of the issued and outstanding capital stock of a General Partner.
IV.2 TRANSFER OF GENERAL PARTNER PARTNER INTEREST.
A General Partner may transfer all or any part of its Partner Interest
as the General Partner of the Partnership to any Person and the Limited Partners
hereby expressly consent to any such transfer.
IV.3 TRANSFER OF LIMITED PARTNER PARTNER INTERESTS.
Any Class A Limited Partner may transfer any or all of its Partner
Interest as a limited partner of the Partnership to any Person and following any
such transfer such Person may become a Substituted Limited Partner pursuant to
Article X. Without the prior written consent of the Managing General Partner,
the Special Limited Partner may not transfer any part of its Partner Interest,
other that as set forth in Section 4.5; provided that notwithstanding the
foregoing, the Special Limited Partner may transfer all, but not less than all,
of its Partner Interest to any affiliate of the Special Limited Partner, and for
this purpose only "affiliate" shall have the meaning assigned to such term in
Rule 12b-2 under the Securities Exchange Act of 1934, as amended.
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IV.4 RESTRICTIONS ON TRANSFERS.
(a) Notwithstanding any other provision of this Article
IV, no transfer of any Partner Interest shall be made if such transfer would (i)
violate the then applicable federal or state securities laws or rules and
regulations of the Commission, any state securities commission or any other
governmental authorities with jurisdiction over such transfer, (ii) terminate
the existence or qualification of the Partnership under the laws of the
jurisdiction of its formation or (iii) cause the Partnership to be treated as an
association taxable as a corporation or otherwise to be taxed as an entity for
federal income tax purposes (to the extent not already so treated or taxed).
(b) The Managing General Partner may impose restrictions
on the transfer of Partner Interests if a subsequent Opinion of Counsel
determines that such restrictions are necessary to avoid a significant risk of
the Partnership's or the MLP's becoming taxable as a corporation or otherwise to
be taxed as an entity for federal income tax purposes. The restrictions may be
imposed by making such amendments to this Agreement as the Managing General
Partner may determine to be necessary or appropriate to impose such
restrictions.
IV.5 PUT AND CALL TRANSACTIONS INVOLVING SPECIAL LIMITED PARTNER
PARTNER INTERESTS.
(a) At any time, the Special Limited Partner may require,
upon 30 days prior written notice to the Managing General Partner and the
Partnership, that the Partnership purchase all (but not less than all) of the
Special Limited Partner's Partner Interest; provided that as a condition to the
obligation of the Partnership to purchase such Special Limited Partner's Partner
Interest, (i) the Special Limited Partner must deliver good and valid title to
the Special Limited Partner's Partner Interest, free and clear of all liens,
claims and other encumbrances and (ii) any waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), or otherwise, shall have expired or been terminated. The Partnership may
elect to have an Affiliate make such purchase. The purchase price shall consist
of cash in an amount equal to the fair market value of the Special Limited
Partner's Partner Interest as of the date of the notice, determined by a
nationally recognized independent appraiser or investment banking firm selected
by the Managing General Partner. Any payment pursuant to this paragraph shall be
made by wire transfer of immediately available funds no later than 30 days after
the date of such notice. The Partnership shall not be obligated to purchase the
Special Limited Partner's Partner Interest unless the Special Limited Partner
delivers good and valid title to the Special Limited Partner's Partner Interest,
free and clear of all liens, claims and other encumbrances.
(b) At any time, the Managing General Partner may
require, upon 30 days prior written notice to the Special Limited Partner, that
the Special Limited Partner sell to the Partnership all (but not less than all)
of the Special Limited Partner's Partner Interest in consideration of (i) the
payment of the cash price as provided in Section 4.5(a), and (ii) an additional
amount in cash, if such sale is consummated prior to July 19, 2009, equal to (A)
any incremental gain realized by the Special Limited Partner resulting from a
decrease in its share of Indemnified Debt, multiplied by (B) a fraction, the
numerator of which is the Effective Tax Rate and the denominator of which is one
minus the Effective Tax Rate. Such purchase shall be effected no later than 30
days after the date
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of the notice. Any payment pursuant to this paragraph shall be made by wire
transfer of immediately available funds no later than 30 days after the date of
such notice, subject to the prior expiration or termination of any applicable
waiting periods under the HSR Act or otherwise. The Special Limited Partner
shall deliver good and valid title to the Special Limited Partner Partner
Interest free and clear of all liens, claims and other encumbrances in the event
this call right is exercised.
ARTICLE V
CONTRIBUTIONS AND INITIAL TRANSFERS
V.1 INITIAL CONTRIBUTIONS.
(a) In connection with the formation of the Partnership under
the Delaware Act and pursuant to an Agreement of Limited Partnership dated March
15, 1996 and an Amended Agreement of Limited Partnership dated June 21, 1996,
(i) the Special Limited Partner and National Propane SGP, Inc., each made a
Capital Contribution to the Partnership in the aggregate amount of $20.96 in
exchange for a 2.0956% interest in the Partnership and each was admitted as a
general partner of the Partnership, (ii) National Propane Partners, L.P. made a
net Capital Contribution to the Partnership in the amount of $.01 in exchange
for a .0001% interest in the Partnership and was admitted as a limited partner
of the Partnership and (iii) the Special Limited Partner and National Propane
SGP, Inc. contributed an aggregate $958.07 in exchange for a 95.8087% limited
partner interest in the Partnership. The Special Limited Partner received a
managing general partner interest and National Propane SGP, Inc. received a
non-managing general partner interest.
(b) On July 2, 1996:
(i) The Special Limited Partner and National Propane SGP, Inc.
conveyed substantially all of their assets to the Partnership. In exchange, the
Partnership (A) increased the general partner interests of the Partnership so
that each of the Special Limited Partner and National Propane SGP, Inc. had a
2.2648% general partner interest in the Partnership, (B) decreased the limited
partner interests of the Partnership so that the Special Limited Partner and
National Propane SGP, Inc. had a combined 95.4703% limited partner interest in
the Partnership and (C) assumed certain liabilities.
(ii) The Special Limited Partner and National Propane SGP,
L.P., thereafter conveyed all their limited partner interest in the Partnership
to National Propane Partners, L.P., in exchange for the interests received
pursuant to Section 5.2 of the Amended and Restated Agreement of Limited
Partnership of National Propane Partners, L.P. dated as of July 2, 1996.
(iii) After the Partnership utilized approximately $62.2
million received pursuant to Section 5.1(b)(i) above to repay a portion of the
indebtedness assumed in Section 5.1(b)(ii) above, National Propane Partners,
L.P. contributed approximately $118.2 million to the Partnership. As a result of
these conveyances, National Propane Partners, L.P. received an additional
limited partner
<PAGE> 184
Exhibit 7-B
Page 22 of 58
interest in the Partnership so that its aggregate limited partner interest in
the Partnership was 97.9798% and the Special Limited Partner and National
Propane SGP, Inc. each had a 1.0101% general partner interest in the
Partnership.
V.2 CONTRIBUTIONS PURSUANT TO THE PURCHASE AGREEMENT.
(a) On July 19, 1999, pursuant to the Purchase Agreement, the
Special Limited Partner caused (i) National Propane Partners, L.P. to redeem (A)
all 1.0% of the unsubordinated general partner interests in National Propane
Partners, L.P. owned by National Propane SGP, Inc. in exchange for the
simultaneous distribution to National Propane SGP, Inc. of a 0.9798% limited
partner interest in the Partnership, (B) all 4,533,638 outstanding units
representing subordinated general partner interests in National Propane
Partners, L.P. and all incentive distribution rights representing general
partner interests in National Propane Partners, L.P. owned by the Special
Limited Partner in exchange for the simultaneous distribution to the Special
Limited Partner of a 22.6351% limited partner interest in the Partnership and
(C) all 1.0% of the unsubordinated general partner interests in National Propane
Partners, L.P. owned by the Special Limited Partner (other than a general
partner interest valued at $1,000, which was subsequently purchased by the
Managing General Partner for $1,000) in exchange for the simultaneous
distribution to the Special Limited Partner of a 0.9798% limited partner
interest in the Partnership, and immediately thereafter, (ii) the Partnership to
redeem all of the units representing limited partner interests in the
Partnership owned by the Special Limited Partner other than a 1.0% limited
partner interest (inclusive of the interest in (C) above) in exchange for the
simultaneous assignment and distribution to the Special Limited Partner of the
promissory note in the original amount of $40,700,000, the principal amount of
which (at the time of the assignment and distribution referred to in this clause
(ii)) will be $15,816,280, issued by Triarc Companies, Inc. to the order of the
Partnership.
(b) Immediately thereafter, (i) the MLP purchased all of the
limited partner interests in the Partnership owned by National Propane SGP, Inc.
for an aggregate consideration of $686,000, and (ii) the Managing General
Partner purchased (A) all of the general partner interests in the Partnership
owned by National Propane SGP, Inc. for an aggregate consideration of $707,000,
and (B) all of the general partner interests in the Partnership owned by the
Special Limited Partner (other than a general partner interest valued at $1,000,
which was subsequently purchased by the Managing General Partner for $1,000) for
an aggregate consideration of $706,000. As contemplated by the Purchase
Agreement, pursuant to this Agreement, the 1.0% limited partner interest
referred to above has been converted into the Special Limited Partner Partner
Interest.
V.3 ADDITIONAL CAPITAL CONTRIBUTIONS.
The Special Limited Partner may, but shall not be obligated
to, make additional Capital Contributions from time to time to the Partnership
in order to maintain its Percentage Interest at 1.0%. Except as provided in the
immediately preceding sentence, no Limited Partner shall be entitled to make
additional Capital Contributions to the Partnership without prior written
consent of the Managing General Partner. The Managing General Partner may make
additional Capital Contributions to the Partnership at any time.
<PAGE> 185
Exhibit 7-B
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V.4 INTEREST AND WITHDRAWAL.
No interest shall be paid by the Partnership on Capital Contributions,
and no Partner shall be entitled to withdrawal or return of any part of its
Capital Contributions or to receive any distribution from the Partnership,
except as provided in Articles VI, XI and XII.
V.5 CAPITAL ACCOUNTS.
(a) The Partnership shall maintain for each Partner
owning a Partner Interest a separate Capital Account with respect to such
Partner Interest in accordance with the rules of Treasury Regulation Section
1.704-1(b)(2)(iv). Such Capital Account shall be increased by (i) the amount of
all Capital Contributions made to the Partnership with respect to such Partner
Interest pursuant to this Agreement and (ii) all items of Partnership income and
gain (including, without limitation, income and gain exempt from tax) computed
in accordance with Section 5.5(b) and allocated with respect to such Partner
Interest pursuant to Section 6.1, and decreased by (x) the amount of cash or the
Net Agreed Value of all actual and deemed distributions of cash or property made
with respect to such Partner Interest pursuant to this Agreement and (y) all
items of Partnership deduction and loss computed in accordance with Section
5.5(b) and allocated with respect to such Partner Interest pursuant to Section
6.1.
(b) For purposes of computing the amount of any item of
income, gain, loss or deduction which is to be allocated pursuant to Article VI
and is to be reflected in the Partners' Capital Accounts, the determination,
recognition and classification of any such item shall be the same as its
determination, recognition and classification for federal income tax purposes
(including, without limitation, any method of depreciation, cost recovery or
amortization used for that purpose), provided, that:
(i) Solely for purposes of this Section 5.5, the
Partnership shall be treated as owning directly its proportionate share
(as determined by the Managing General Partner) of all property owned
by any OLP Subsidiary that is classified as a partnership for federal
income tax purposes.
(ii) All fees and other expenses incurred by the
Partnership to promote the sale of (or to sell) a Partner Interest that
can neither be deducted nor amortized under Section 709 of the Code, if
any, shall, for purposes of Capital Account maintenance, be treated as
an item of deduction at the time such fees and other expenses are
incurred and shall be allocated among the Partners pursuant to Section
6.1.
(iii) Except as otherwise provided in Treasury
Regulation Section 1.704- 1(b)(2)(iv)(m), the computation of all items
of income, gain, loss and deduction shall be made without regard to any
election under Section 754 of the Code which may be made by the
Partnership and, as to those items described in Section 705(a)(1)(B) or
705(a)(2)(B) of the Code, without regard to the fact that such items
are not includable in gross income or are neither currently deductible
nor capitalized for federal income tax purposes. To the extent
<PAGE> 186
Exhibit 7-B
Page 24 of 58
an adjustment to the adjusted tax basis of any Partnership asset
pursuant to Section 734(b) or 743(b) of the Code is required, pursuant
to Treasury Regulation Section 1.704- 2(b)(2)(iv)(m) to be taken into
account in determining Capital Accounts, the amount of such adjustment
in the Capital Accounts shall be treated as an item of gain or loss.
(iv) Any income, gain or loss attributable to the
taxable disposition of any Partnership property shall be determined as
if the adjusted basis of such property as of such date of disposition
were equal in amount to the Partnership's Carrying Value with respect
to such property as of such date.
(v) In accordance with the requirements of Section
704(b) of the Code, any deductions for depreciation, cost recovery or
amortization attributable to any Contributed Property shall be
determined as if the adjusted basis of such property on the date it was
acquired by the Partnership were equal to the Agreed Value of such
property. Upon an adjustment pursuant to Section 5.5(d) to the Carrying
Value of any Partnership property subject to depreciation, cost
recovery or amortization, any further deductions for such depreciation,
cost recovery or amortization attributable to such property shall be
determined (A) as if the adjusted basis of such property were equal to
the Carrying Value of such property immediately following such
adjustment and (B) using a rate of depreciation, cost recovery or
amortization derived from the same method and useful life (or, if
applicable, the remaining useful life) as is applied for federal income
tax purposes; provided, however, that, if the asset has a zero adjusted
basis for federal income tax purposes, depreciation, cost recovery or
amortization deductions shall be determined using any reasonable method
that the Managing General Partner may adopt.
(vi) If the Partnership's adjusted basis in a
depreciable or cost recovery property is reduced for federal income tax
purposes pursuant to Section 48(q)(1) or 48(q)(3) of the Code, the
amount of such reduction shall, solely for purposes hereof, be deemed
to be an additional depreciation or cost recovery deduction in the year
such property is placed in service and shall be allocated among the
Partners pursuant to Section 6.1. Any restoration of such basis
pursuant to Section 48(q)(2) of the Code shall, to the extent possible,
be allocated in the same manner to the Partners to whom such deemed
deduction was allocated.
(c) A transferee of a Partner Interest shall succeed to a
pro rata portion of the Capital Account of the transferor relating to the
Partner Interest so transferred; provided, however, that, if the transfer causes
a termination of the Partnership under Section 708(b)(1)(B) of the Code, the
Partnership's properties, liabilities and the Capital Accounts shall be treated
as mandated by Treasury Regulations issued pursuant to Sections 708 and 704 of
the Code, as amended. The Capital Accounts of such new Partnership shall be
maintained in accordance with the principles of this Section 5.5.
(d) (i) In accordance with Treasury Regulation Section
1.704-1(b)(2)(iv)(f), on an issuance of additional Partner Interests for cash or
Contributed Property, the Capital Account of all Partners and the Carrying Value
of each Partnership property immediately prior to such issuance
<PAGE> 187
Exhibit 7-B
Page 25 of 58
shall be adjusted upward or downward to reflect any Unrealized Gain or
Unrealized Loss attributable to such Partnership property, as if such Unrealized
Gain or Unrealized Loss had been recognized on an actual sale of each such
property immediately prior to such issuance and had been allocated to the
Partners at such time pursuant to Section 6.1(c). In determining such Unrealized
Gain or Unrealized Loss, the aggregate cash amount and fair market value of all
Partnership assets (including, without limitation, cash or cash equivalents)
immediately prior to the issuance of additional Partner Interests shall be
determined by the Managing General Partner using such reasonable method of
valuation as it may adopt; provided, however, that the Managing General Partner,
in arriving at such valuation, must take fully into account the fair market
value of the Partner Interests of all Partners at such time. The Managing
General Partner shall allocate such aggregate value among the assets of the
Partnership (in such manner as it determines in its discretion to be reasonable)
to arrive at a fair market value for individual properties.
(ii) In accordance with Treasury Regulation Section
1.704-1(b)(2)(iv)(f), immediately prior to any actual or deemed distribution to
a Partner of any Partnership property (other than a distribution of cash that is
not in redemption or retirement of a Partner Interest), the Capital Accounts of
all Partners and the Carrying Value of all Partnership property shall be
adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss
attributable to such Partnership property, as if such Unrealized Gain or
Unrealized Loss had been recognized in a sale of such property immediately prior
to such distribution for an amount equal to its fair market value, and had been
allocated to the Partners, at such time, pursuant to Section 6.1(c). In
determining such Unrealized Gain or Unrealized Loss the aggregate cash amount
and fair market value of all Partnership assets (including, without limitation,
cash or cash equivalents) immediately prior to a distribution shall (A) in the
case of an actual distribution which is not made pursuant to Section 12.4, be
determined and allocated in the same manner as that provided in Section
5.5(d)(i) or (B) in the case of a liquidating distribution pursuant to Section
12.4, be determined and allocated by the Liquidator using such reasonable method
of valuation as it may adopt.
V.6 LOANS FROM PARTNERS.
Loans by a Partner to the Partnership shall not constitute Capital
Contributions. If any Partner shall advance funds to the Partnership in excess
of the amounts required hereunder to be contributed by it to the capital of the
Partnership, the making of such excess advances shall not result in any increase
in the amount of the Capital Account of such Partner. The amount of any such
excess advances shall be a debt obligation of the Partnership to such Partner
and shall be payable or collectible only out of the Partnership assets in
accordance with the terms and conditions upon which such advances are made.
V.7 LIMITED PREEMPTIVE RIGHTS.
Except as provided in Section 5.3, no Person shall have preemptive,
preferential or other similar rights with respect to (a) additional Capital
Contributions; (b) issuance or sale of any class or series of Partner Interests,
whether unissued, held in the treasury or hereafter created; (c) issuance of any
obligations, evidences of indebtedness or other securities of the Partnership
convertible into
<PAGE> 188
Exhibit 7-B
Page 26 of 58
or exchangeable for, or carrying or accompanied by any rights to receive,
purchase or subscribe to, any such Partner Interests; (d) issuance of any right
of subscription to or right to receive, or any warrant or option for the
purchase of, any such Partner Interests; or (e) issuance or sale of any other
securities that may be issued or sold by the Partnership.
V.8 FULLY PAID AND NON-ASSESSABLE NATURE OF LIMITED PARTNER PARTNER
INTERESTS.
All Limited Partner Partner Interests issued pursuant to, and in
accordance with the requirements of, this Article V shall be fully paid and
non-assessable Partner Interests in the Partnership, except as such
non-assessability may be affected by Section 17-607 of the Delaware Act.
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
VI.1 ALLOCATIONS FOR CAPITAL ACCOUNT PURPOSES.
For purposes of maintaining the Capital Accounts and in determining the
rights of the Partners among themselves, the Partnership's items of income,
gain, loss and deduction (computed in accordance with Section 5.5(b)) shall be
allocated among the Partners in each taxable year (or portion thereof) as
provided hereinbelow.
(a) Net Income. After giving effect to the special
allocations set forth in Section 6.1(d), Net Income for each taxable year (or
portion thereof) and all items of income, gain, loss and deduction taken into
account in computing Net Income for such taxable year (or portion thereof) shall
be allocated as follows:
(i) First, 100% to the General Partners, in
accordance with their respective Percentage Interests, until the
aggregate Net Income allocated to the General Partners pursuant to this
Section 6.1(a)(i) for the current taxable year (or portion thereof) and
all previous taxable years is equal to the aggregate Net Losses
allocated to the General Partners pursuant to Section 6.1(b)(ii) for
all previous taxable years;
(ii) Second, 100% to the General Partners and the
Limited Partners, in accordance with their respective Percentage
Interests.
(b) Net Losses. After giving effect to the special
allocations set forth in Section 6.1(d), Net Losses for each taxable year (or
portion thereof) and all items of income, gain, loss and deduction taken into
account in computing Net Losses for such taxable year (or portion thereof) shall
be allocated as follows:
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Exhibit 7-B
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(i) First, 100% to the General Partners and the
Limited Partners, in accordance with their respective Percentage
Interests; provided, that Net Losses shall not be allocated pursuant to
this Section 6.1(b)(i) to the extent that such allocation would cause a
Limited Partner to have a deficit balance in its Adjusted Capital
Account at the end of such taxable year (or increase any existing
deficit balance in its Adjusted Capital Account) greater than the
amount it is obligated to restore;
(ii) Second, the balance, if any, 100% to the General
Partners, in accordance with their respective Percentage Interests.
(c) Net Termination Gains and Losses. After giving effect
to the special allocations set forth in Section 6.1(d), all items of income,
gain, loss and deduction taken into account in computing Net Termination Gain or
Net Termination Loss for such taxable period shall be allocated in the same
manner as such Net Termination Gain or Net Termination Loss is allocated
hereunder. All allocations under this Section 6.1(c) shall be made after Capital
Account balances have been adjusted by all other allocations provided under this
Section 6.1 and after all distributions provided under Section 6.3(a) have been
made with respect to the taxable period ending on or before the Liquidation
Date; provided, however, that solely for purposes of this Section 6.1(c),
Capital Accounts shall not be adjusted for distributions made pursuant to
Section 12.4.
(i) If a Net Termination Gain is recognized (or
deemed recognized pursuant to Section 5.5(d)), such Net Termination
Gain shall be allocated between the General Partners and the Limited
Partners in the following manner (and the Capital Accounts of the
Partners shall be increased by the amount so allocated in each of the
following subclauses, in the order listed, before an allocation is made
pursuant to the next succeeding subclause):
(A) First, to each Partner having a deficit
balance in its Capital Account, in the proportion that such deficit
balance bears to the total deficit balances in the Capital Accounts of
all Partners, until each such Partner has been allocated Net
Termination Gain equal to any such deficit balance in its Capital
Account; and
(B) Second, 100% to the General Partners and
the Limited Partners in accordance with their respective Percentage
Interests.
(ii) If a Net Termination Loss is recognized (or
deemed recognized pursuant to Section 5.5(d)), such Net Termination
Loss shall be allocated to the Partners in the following manner (and
the Capital Accounts of the Partners shall be decreased by the amount
so allocated in each of the following subclauses, in the order listed,
before an allocation is made pursuant to the next succeeding
subclause):
(A) First, 100% to the General Partners and
the Limited Partners in proportion to, and to the extent of, the
positive balances in their respective Capital Accounts; and
<PAGE> 190
Exhibit 7-B
Page 28 of 58
(B) Second, the balance, if any, 100% to the
General Partners, in accordance with their respective Percentage
Interests.
(d) Special Allocations. Notwithstanding any other
provision of this Section 6.1, the following special allocations shall be made
for such taxable year (or portion thereof):
(i) Partnership Minimum Gain Chargeback.
Notwithstanding any other provision of this Section 6.1, if there is a
net decrease in Partnership Minimum Gain during any Partnership taxable
period, each Partner shall be allocated items of Partnership income and
gain for such period (and, if necessary, subsequent periods) in the
manner and amounts provided in Treasury Regulation Sections
1.704-2(f)(6), 1.704-2(g)(2) and 1.704-2(j)(2)(i), or any successor
provision. For purposes of this Section 6.1(d), each Partner's Adjusted
Capital Account balance shall be determined, and the allocation of
income or gain required hereunder shall be effected, prior to the
application of any other allocations pursuant to this Section 6.1(d)
with respect to such taxable period (other than an allocation pursuant
to Sections 6.1(d)(v) and 6.1(d)(vi)). This Section 6.1(d)(i) is
intended to comply with the Partnership Minimum Gain chargeback
requirement in Treasury Regulation Section 1.704- 2(f) and shall be
interpreted consistently therewith.
(ii) Chargeback of Partner Nonrecourse Debt Minimum
Gain. Notwithstanding the other provisions of this Section 6.1 (other
than Section 6.1(d)(i)), except as provided in Treasury Regulation
Section 1.704-2(i)(4), if there is a net decrease in Partner
Nonrecourse Debt Minimum Gain during any Partnership taxable period,
any Partner with a share of Partner Nonrecourse Debt Minimum Gain at
the beginning of such taxable period shall be allocated items of
Partnership income and gain for such period (and, if necessary,
subsequent periods) in the manner and amounts provided in Treasury
Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2)(ii), or any
successor provisions. For purposes of this Section 6.1(d), each
Partner's Adjusted Capital Account balance shall be determined, and the
allocation of income or gain required hereunder shall be effected,
prior to the application of any other allocations pursuant to this
Section 6.1(d), other than Section 6.1(d)(i) and other than an
allocation pursuant to Sections 6.1(d)(v) and 6.1(d)(vi), with respect
to such taxable period. This Section 6.1(d)(ii) is intended to comply
with the chargeback of items of income and gain requirement in Treasury
Regulation Section 1.704-2(i)(4) and shall be interpreted consistently
therewith.
(iii) Qualified Income Offset. In the event any
Partner unexpectedly receives any adjustments, allocations or
distributions described in Treasury Regulation Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6), items of Partnership income and gain shall be
specially allocated to such Partner in an amount and manner sufficient
to eliminate, to the extent required by the Treasury Regulations
promulgated under Section 704(b) of the Code, the deficit balance, if
any, in its Adjusted Capital Account created by such adjustments,
allocations or distributions as quickly as possible unless such deficit
balance is otherwise eliminated pursuant to Section 6.1(d)(i) or (ii).
<PAGE> 191
Exhibit 7-B
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(iv) Gross Income Allocations. In the event any
Partner has a deficit balance in its Capital Account at the end of any
Partnership taxable period in excess of the sum of (A) the amount such
Partner is required to restore pursuant to the provisions of this
Agreement and (B) the amount such Partner is deemed obligated to
restore pursuant to Treasury Regulation Sections 1.704-2(g) and
1.704-2(i)(5), such Partner shall be specially allocated items of
Partnership gross income and gain in the amount of such excess as
quickly as possible; provided, that an allocation pursuant to this
Section 6.1(d)(iv) shall be made only if and to the extent that such
Partner would have a deficit balance in its Capital Account as adjusted
after all other allocations provided in this Section 6.1 have been
tentatively made as if this Section 6.1(d)(iv) were not in this
Agreement.
(v) Nonrecourse Deductions. Nonrecourse Deductions
for any taxable period shall be allocated to the Partners in accordance
with their respective Percentage Interests. If the Managing General
Partner determines in its good faith discretion that the Partnership's
Nonrecourse Deductions must be allocated in a different ratio to
satisfy the safe harbor requirements of the Treasury Regulations
promulgated under Section 704(b) of the Code, the Managing General
Partner is authorized, upon notice to the Limited Partners, to revise
the prescribed ratio to the numerically closest ratio that does satisfy
such requirements.
(vi) Partner Nonrecourse Deductions. Partner
Nonrecourse Deductions for any taxable period shall be allocated 100%
to the Partner that bears the Economic Risk of Loss with respect to the
Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions
are attributable in accordance with Treasury Regulation Section
1.704-2(i). If more than one Partner bears the Economic Risk of Loss
with respect to a Partner Nonrecourse Debt, such Partner Nonrecourse
Deductions attributable thereto shall be allocated between or among
such Partners in accordance with the ratios in which they share such
Economic Risk of Loss.
(vii) Nonrecourse Liabilities. For purposes of
Treasury Regulation Section 1.752-3(a)(3), the Partners agree that
Nonrecourse Liabilities of the Partnership in excess of the sum of (A)
the amount of Partnership Minimum Gain and (B) the total amount of
Nonrecourse Built-in Gain shall be allocated among the Partners in
accordance with their respective Percentage Interests.
(viii) Code Section 754 Adjustments. To the extent an
adjustment to the adjusted tax basis of any Partnership asset pursuant
to Section 734(b) or 743(c) of the Code is required, pursuant to
Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into
account in determining Capital Accounts, the amount of such adjustment
to the Capital Accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis), and such item of gain or loss shall be specially
allocated to the Partners in a manner consistent with the manner in
which their Capital Accounts are required to be adjusted pursuant to
such Section of the Treasury Regulations.
<PAGE> 192
Exhibit 7-B
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(ix) Curative Allocation.
(A) Notwithstanding any other provision of
this Section 6.1, other than the Required Allocations, the Required
Allocations shall be taken into account in making the Agreed
Allocations so that, to the extent possible, the net amount of items of
income, gain, loss and deduction allocated to each Partner pursuant to
the Required Allocations and the Agreed Allocations, together, shall be
equal to the net amount of such items that would have been allocated to
each such Partner under the Agreed Allocations had the Required
Allocations and the related Curative Allocation not otherwise been
provided in this Section 6.1. Notwithstanding the preceding sentence,
Required Allocations relating to (1) Nonrecourse Deductions shall not
be taken into account pursuant to this Section 6.1(d)(ix) except to the
extent that there has been a decrease in Partnership Minimum Gain and
(2) Partner Nonrecourse Deductions shall not be taken into account
pursuant to this Section 6.1(d)(ix) except to the extent that there has
been a decrease in Partner Nonrecourse Debt Minimum Gain. Allocations
pursuant to this Section 6.1(d)(ix)(A) shall only be made with respect
to Required Allocations to the extent the Managing General Partner
reasonably determines that such allocations will otherwise be
inconsistent with the economic Agreement among the Partners. Further,
allocations pursuant to this Section 6.1(d)(ix)(A) shall be deferred
with respect to allocations pursuant to clauses (1) and (2) hereof to
the extent the Managing General Partner reasonably determines that such
allocations are likely to be offset by subsequent Required Allocations.
(B) The Managing General Partner shall have
reasonable discretion, with respect to each taxable period, to (1)
apply the provisions of Section 6.1(d)(ix)(A) in whatever order is most
likely to minimize the economic distortions that might otherwise result
from the Required Allocations, and (2) divide all allocations pursuant
to Section 6.1(d)(ix)(A) among the Partners in a manner that is likely
to minimize such economic distortions.
VI.2 ALLOCATIONS FOR TAX PURPOSES.
(a) Except as otherwise provided herein, for federal
income tax purposes, each item of income, gain, loss and deduction shall be
allocated among the Partners in the same manner as its correlative item of
"book" income, gain, loss or deduction is allocated pursuant to Section 6.1.
(b) In an attempt to eliminate Book-Tax Disparities
attributable to a Contributed Property or Adjusted Property, items of income,
gain, loss, depreciation, amortization and cost recovery deductions shall be
allocated for federal income tax purposes among the Partners as follows:
(i) (A) In the case of a Contributed Property, such
items attributable thereto shall be allocated among the Partners in the
manner provided under Section 704(c) of the Code that takes into
account the variation between the Agreed Value of such property and
<PAGE> 193
Exhibit 7-B
Page 31 of 58
its adjusted basis at the time of contribution; and (B) any item of
Residual Gain or Residual Loss attributable to a Contributed Property
shall be allocated among the Partners in the same manner as its
correlative item of "book" gain or loss is allocated pursuant to
Section 6.1.
(ii) (A) In the case of an Adjusted Property, such
items shall (1) first, be allocated among the Partners in a manner
consistent with the principles of Section 704(c) of the Code to take
into account the Unrealized Gain or Unrealized Loss attributable to
such property and the allocations thereof pursuant to Section 5.5(d)(i)
or (ii), and (2) second, in the event such property was originally a
Contributed Property, be allocated among the Partners in a manner
consistent with Section 6.2(b)(i)(A); and (B) any item of Residual Gain
or Residual Loss attributable to an Adjusted Property shall be
allocated among the Partners in the same manner as its correlative item
of "book" gain or loss is allocated pursuant to Section 6.1.
(iii) The Managing General Partner shall apply the
principles of Treasury Regulation Section 1.704-3(d) to eliminate
Book-Tax Disparities.
(c) The Managing General Partner shall have sole
discretion to (i) adopt such conventions as it deems appropriate in
determining the amount of depreciation, amortization and cost recovery
deductions; (ii) make special allocations for federal income tax
purposes of income (including, without limitation, gross income) or
deductions; and (iii) amend the provisions of this Agreement as
appropriate to reflect the proposal or promulgation of Treasury
Regulations under Section 704(b) or Section 704(c) of the Code. The
Managing General Partner may adopt such conventions, make such
allocations and make such amendments to this Agreement as provided in
this Section 6.2(c) only if such conventions, allocations or amendments
would not have a material adverse effect on the Partners, and if such
allocations are consistent with the principles of Section 704 of the
Code.
(d) The Managing General Partner in its discretion
may determine to depreciate or amortize the portion of an adjustment
under Section 743(b) of the Code attributable to unrealized
appreciation in any Adjusted Property (to the extent of the unamortized
Book-Tax Disparity) using a predetermined rate derived from the
depreciation or amortization method and useful life applied to the
Partnership's common basis of such property, despite any inconsistency
of such approach with Treasury Regulation Section 1.167(c)-l(a)(6) or
the legislative history of Section 197 of the Code or Proposed Treasury
Regulation Section 1.197-2(g)(3).
(e) Any gain allocated to the Partners upon the sale
or other taxable disposition of any Partnership asset shall, to the
extent possible, after taking into account other required allocations
of gain pursuant to this Section 6.2, be characterized as Recapture
Income in the same proportions and to the same extent as such Partners
(or their predecessors in interest) have been allocated any deductions
directly or indirectly giving rise to the treatment of such gains as
Recapture Income.
<PAGE> 194
Exhibit 7-B
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(f) All items of income, gain, loss, deduction and
credit recognized by the Partnership for federal income tax purposes
and allocated to the Partners in accordance with the provisions hereof
shall be determined without regard to any election under Section 754 of
the Code which may be made by the Partnership; provided, however, that
such allocations, once made, shall be adjusted as necessary or
appropriate to take into account those adjustments permitted or
required by Sections 734 and 743 of the Code.
(g) The Managing General Partner may adopt such
methods of allocation of income, gain, loss or deduction between a
transferor and a transferee of a Partner Interest as it determines
necessary, to the extent permitted or required by Section 706 of the
Code and the regulations or rulings promulgated thereunder.
VI.3 DISTRIBUTIONS.
(a) Distribution of Available Cash in any Quarter shall
be made to the Partners at the times and in the aggregate amounts determined by
the Managing General Partner in its sole discretion. Except as provided in
Section 6.3(c), all distributions of Available Cash shall be made to the
Partners in accordance with their respective Percentage Interests. No
distribution of cash shall be made if and to the extent such distribution would
be prohibited by applicable law or by any loan agreement, security agreement,
mortgage, debt instrument or other agreement or obligation to which the
Partnership is a party or by which it is bound or its assets are subject. All
distributions required to be made under this Agreement shall be made subject to
Section 17-607 of the Delaware Act.
(b) The Managing General Partner may elect in any Quarter
to distribute to any Partner any property other than cash held by the
Partnership in the aggregate amount determined by the Managing General Partner
in its sole discretion; provided, however, the Managing General Partner may not
without the consent of the Special Limited Partner distribute any cash or other
property held by the Partnership to the Special Limited Partner pursuant to this
Section 6.3(b) if such distribution would reduce the Special Limited Partner's
Percentage Interest below 1.0%; provided further, no distribution pursuant to
this Section 6.3(b) may be made in any Quarter in which the Liquidation Date
occurs or any following Quarter.
(c) In the event of the dissolution and liquidation of
the Partnership, all distributions of cash or any other property shall be made
solely in accordance with, and subject to the terms and conditions of, Section
12.4.
(d) The Managing General Partner shall have the
discretion to treat taxes paid by the Partnership on behalf of, or amounts
withheld with respect to, all or less than all of the Partners, as a
distribution of Available Cash to such Partners.
<PAGE> 195
Exhibit 7-B
Page 33 of 58
ARTICLE VII
MANAGEMENT AND OPERATION OF BUSINESS
VII.1 MANAGEMENT.
(a) The Managing General Partner shall conduct, direct
and manage all activities of the Partnership. Except as otherwise expressly
provided in this Agreement, all management powers over the business and affairs
of the Partnership shall be exclusively vested in the Managing General Partner,
and no Limited Partner shall have any management power over the business and
affairs of the Partnership. In addition to the powers now or hereafter granted a
general partner of a limited partnership under applicable law or which are
granted to the Managing General Partner under any other provision of this
Agreement, the Managing General Partner, subject to Section 7.3, shall have full
power and authority to do all things and on such terms as it, in its sole
discretion, may deem necessary or appropriate to conduct the business of the
Partnership, to exercise all powers set forth in Section 2.5 and to effectuate
the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or
borrowing of money, the assumption or guarantee of, or other
contracting for, indebtedness and other liabilities, the issuance of
evidences of indebtedness and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings,
or rendering of periodic or other reports to governmental or other
agencies having jurisdiction over the business or assets of the
Partnership;
(iii) the acquisition, disposition, mortgage, pledge,
encumbrance, hypothecation or exchange of any or all of the assets of
the Partnership or the merger or other combination of the Partnership
with or into another Person;
(iv) the use of the assets of the Partnership
(including cash on hand) for any purpose consistent with the terms of
this Agreement, including the financing of the conduct of the
operations of the Partnership Group, the lending of funds to other
Persons (including the MLP, the General Partners and their Affiliates),
the repayment of obligations of the MLP or any member of the
Partnership Group and the making of capital contributions to any member
of the Partnership Group;
(v) the negotiation, execution and performance of any
contracts, conveyances or other instruments (including instruments that
limit the liability of the Partnership under contractual arrangements
to all or particular assets of the Partnership, with the other party to
the contract to have no recourse against the General Partners or their
assets other than its interest in the Partnership, even if same results
in the terms of the transaction being less favorable to the Partnership
than would otherwise be the case);
(vi) the distribution of Partnership cash;
<PAGE> 196
Exhibit 7-B
Page 34 of 58
(vii) the selection and dismissal of employees
(including employees having titles such as "president," "vice
president," "secretary" and "treasurer") and agents, outside attorneys,
accountants, consultants and contractors and the determination of their
compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the
benefit of the Partnership Group and the Partners (including the assets
of the Partnership) as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest
in, and the contribution of property and the making of loans to, any
further limited or general partnerships, joint ventures, corporations
or other relationships;
(x) the control of any matters affecting the rights
and obligations of the Partnership, including the bringing and
defending of actions at law or in equity and otherwise engaging in the
conduct of litigation and the incurring of legal expense and the
settlement of claims and litigation; and
(xi) the indemnification of any Person against
liabilities and contingencies to the extent permitted by law.
(b) Notwithstanding any other provision of this Agreement, the
MLP Agreement, the Delaware Act or any applicable law, rule or regulation, each
of the Partners agrees that the execution, delivery or performance by the
Managing General Partner, any Group Member or any Affiliate of any of them, of
this Agreement or any agreement authorized or permitted under this Agreement
[(including any agreement necessary or desirable in the event that the
Partnership, the Class A Limited Partner or any direct or indirect parent seeks
to make a public or private offering of interests therein)], shall not
constitute a breach by the Managing General Partner of any duty that the
Managing General Partner may owe the Partnership or the Limited Partners or the
Assignees or any other Persons under this Agreement (or any other agreements) or
of any duty stated or implied by law or equity.
VII.2 CERTIFICATE OF LIMITED PARTNERSHIP.
On March 16 , 1996, the Special Limited Partner caused the Certificate
of Limited Partnership to be filed with the Secretary of State of the State of
Delaware as required by the Delaware Act. The Managing General Partner shall use
all reasonable efforts to cause to be filed such other certificates or documents
as may be determined by the Managing General Partner in its sole discretion to
be reasonable and necessary or appropriate for the formation, continuation,
qualification and operation of a limited partnership (or a partnership in which
the limited partners have limited liability) in the State of Delaware or any
other state in which the Partnership may elect to do business or own property.
To the extent that such action is determined by the Managing General Partner in
its sole discretion to be reasonable and necessary or appropriate, the Managing
General Partner shall file amendments to and restatements of the Certificate of
Limited Partnership and do all things to maintain the Partnership as a limited
partnership (or a partnership or other entity
<PAGE> 197
Exhibit 7-B
Page 35 of 58
in which the limited partners have limited liability) under the laws of the
State of Delaware or of any other state in which the Partnership may elect to do
business or own property.
VII.3 RESTRICTIONS ON MANAGING GENERAL PARTNER'S AUTHORITY.
(a) The Managing General Partner may not, without written
approval of the specific act by the Limited Partners or by other written
instrument executed and delivered by the Limited Partners subsequent to the date
of this Agreement, take any action in contravention of this Agreement,
including, except as otherwise provided in this Agreement, (i) committing any
act that would make it impossible to carry on the ordinary business of the
Partnership or (ii) possessing Partnership property, or assigning any rights in
specific Partnership property, for other than a Partnership purpose.
(b) The Managing General Partner may sell, exchange or
otherwise dispose of all or substantially all of the Partnership's assets in a
single transaction or a series of related transactions without the approval of
the Limited Partners.
VII.4 REIMBURSEMENT OF THE GENERAL PARTNERS.
(a) Except as provided in this Section 7.4 and elsewhere in
this Agreement or in the MLP Agreement, the General Partners shall not be
compensated for their services as general partners of the MLP or any Group
Member.
(b) The General Partners shall be reimbursed on a monthly
basis, or such other reasonable basis as the Managing General Partner may
determine in its sole discretion, for (i) all direct and indirect expenses that
they incur or payments they make on behalf of the Partnership (including salary,
bonus, incentive compensation and other amounts paid to any Person, including
Affiliates of the General Partner, to perform services for the Partnership or
for the General Partners in the discharge of their duties to the Partnership),
and (ii) all other necessary or appropriate expenses allocable to the
Partnership or otherwise reasonably incurred by the Managing General Partner in
connection with operating the Partnership's business (including expenses
allocated to the General Partners by their Affiliates). The Managing General
Partner shall determine the expenses that are allocable to the Partnership in
any reasonable manner determined by the Managing General Partner in its sole
discretion. Reimbursements pursuant to this Section 7.4 shall be in addition to
any reimbursement to the General Partners as a result of indemnification
pursuant to Section 7.7.
(c) The Managing General Partner, in its sole discretion and
without the approval of the Limited Partners (who shall have no right to vote in
respect thereof), may propose and adopt on behalf of the Partnership employee
benefit plans, employee programs and employee practices for the benefit of
employees of the Managing General Partner, any Group Member or any Affiliate, or
any of them, in respect of services performed, directly or indirectly, for the
benefit of the Partnership Group. Expenses incurred by the Managing General
Partner in connection with any such plans, programs and practices shall be
reimbursed in accordance with Section 7.4(b). Any and all obligations of the
Managing General Partner under any employee benefit plans, employee programs
<PAGE> 198
Exhibit 7-B
Page 36 of 58
or employee practices adopted by the Managing General Partner as permitted by
this Section 7.4(c) shall constitute obligations of the Managing General Partner
hereunder and shall be assumed by any successor Managing General Partner
approved pursuant to Section 11.1 or 11.2 or the transferee of or successor to
all of the Managing General Partner's Partner Interest as a general partner in
the Partnership pursuant to Section 4.2.
VII.5 OUTSIDE ACTIVITIES.
(a) The General Partners and their Affiliates shall have the
right to engage in businesses of every type and description and other activities
for profit and to engage in and possess an interest in other business ventures
of any and every type or description, whether in businesses engaged in or
anticipated to be engaged in by any Group Member, independently or with others,
including business interests and activities in direct competition with the
business and activities of any Group Member, and none of the same shall
constitute a breach of this Agreement or any duty express or implied by law to
any Group Member or any Partner or Assignee. Neither any Group Member, any
Limited Partner nor any other Person shall have any rights by virtue of this
Agreement or the partnership relationship established hereby in any business
ventures of any Indemnitee.
(b) Notwithstanding anything to the contrary in this
Agreement, (i) the engaging in competitive activities by any Indemnitee in
accordance with the provisions of this Section 7.5 is hereby approved by the
Partnership and all Partners and (ii) it shall be deemed not to be a breach of
the General Partners' fiduciary duty (or any other obligation of any type
whatsoever of the General Partners) for any General Partner or for any Affiliate
of a General Partner to engage in such business interests and activities in
preference to or to the exclusion of the Partnership (including, without
limitation, the General Partners and their Affiliates shall have no obligation
to present business opportunities to the Partnership).
VII.6 LOANS FROM THE GENERAL PARTNERS; LOANS OR CONTRIBUTIONS FROM THE
PARTNERSHIP; CONTRACTS WITH AFFILIATES; CERTAIN RESTRICTIONS ON
THE GENERAL PARTNERS.
(a) The General Partners or any of their Affiliates may lend
to the MLP or any Group Member, and the MLP or any Group Member may borrow from
the General Partners or any of their Affiliates, funds needed or desired by the
MLP or the Group Member for such periods of time and in such amounts as the
Managing General Partner may determine; provided, however, that in any such case
the lending party may not charge the borrowing party interest at a rate greater
than the rate that would be charged the borrowing party or impose terms less
favorable to the borrowing party than would be charged or imposed on the
borrowing party by unrelated lenders on comparable loans made on an arms'-length
basis (without reference to the lending party's financial abilities or
guarantees). The borrowing party shall reimburse the lending party for any costs
(other than any additional interest costs) incurred by the lending party in
connection with the borrowing of such funds. For purposes of this Section 7.6(a)
and Section 7.6(b), the term "Group Member" shall include any Affiliate of a
Group Member that is controlled by the Group Member.
<PAGE> 199
Exhibit 7-B
Page 37 of 58
(b) The Partnership may lend or contribute to any Group
Member, the General Partners or any of their Affiliates and any Group Member,
the General Partners or any of their Affiliates may borrow from the Partnership,
funds on terms and conditions established in the sole discretion of the Managing
General Partner; provided, however, that the Partnership may not charge the
Group Member, General Partners or their Affiliates interest at a rate less than
the rate that would be charged to the Group Member, the General Partners or any
of their Affiliates by unrelated lenders on comparable loans. The foregoing
authority shall be exercised by the Managing General Partner in its sole
discretion and shall not create any right or benefit in favor of any Group
Member or any other Person.
(c) The Managing General Partner may itself, or may enter
into an Agreement with any of its Affiliates to, render services to a Group
Member or to the Managing General Partner in the discharge of its duties as a
general partner of the Partnership. Any services rendered to a Group Member by
the Managing General Partner (other than services it renders in its capacity as
Managing General Partner) or any of its Affiliates shall be on terms that are
fair and reasonable to the Partnership; provided, however, that the requirements
of this Section 7.6(c) shall be deemed satisfied as to (i) any transaction
approved by Special Approval, (ii) any transaction, the terms of which are no
less favorable to the Partnership Group than those generally being provided to
or available from unrelated third parties or (iii) any transaction that, taking
into account the totality of the relationships between the parties involved
(including other transactions that may be particularly favorable or advantageous
to the Partnership Group), is equitable to the Partnership Group. The provisions
of Section 7.4 shall apply to the rendering of services described in this
Section 7.6(c).
(d) Any Group Member may transfer assets to joint ventures,
other partnerships, corporations, limited liability companies or other business
entities in which it is or thereby becomes a participant upon such terms and
subject to such conditions as are consistent with this Agreement and applicable
law.
(e) Neither the General Partners nor any of their Affiliates
shall sell, transfer or convey any property to, or purchase any property from
the Partnership, directly or indirectly, except pursuant to transactions that
are fair and reasonable to the Partnership; provided, however, that the
requirements of this Section 7.6(e) shall be deemed to be satisfied as to (i)
the transactions effected pursuant to Sections 5.1(a) and 5.1(b), (ii) any
transaction approved by Special Approval, (iii) any transaction, the terms of
which are no less favorable to the Partnership than those generally being
provided to or available from unrelated third parties, or (iv) any transaction
that, taking into account the totality of the relationships between the parties
involved (including other transactions that may be particularly favorable or
advantageous to the Partnership), is equitable to the Partnership.
(f) The General Partners and their Affiliates will have no
obligation to permit any Group Member to use any facilities or assets of the
General Partners and their Affiliates, except as may be provided in contracts
entered into from time to time specifically dealing with such use, nor shall
there be any obligation on the part of the General Partners or their Affiliates
to enter into such contracts.
<PAGE> 200
Exhibit 7-B
Page 38 of 58
VII.7 INDEMNIFICATION.
(a) To the fullest extent permitted by law but subject to the
limitations expressly provided in this Agreement, all Indemnitees shall be
indemnified and held harmless by the Partnership from and against any and all
losses, claims, damages, liabilities, joint or several, expenses (including
legal fees and expenses), judgments, fines, penalties, interest, settlements or
other amounts arising from any and all claims, demands, actions, suits or
proceedings, whether civil, criminal, administrative or investigative, in which
any Indemnitee may be involved, or is threatened to be involved, as a party or
otherwise, by reason of its status as an Indemnitee, provided, that in each case
the Indemnitee acted in good faith and in a manner that such Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the
Partnership and, with respect to any criminal proceeding, had no reasonable
cause to believe its conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that the
Indemnitee acted in a manner contrary to that specified above. Any
indemnification pursuant to this Section 7.7 shall be made only out of the
assets of the Partnership, it being agreed that the General Partners shall not
be personally liable for such indemnification and shall have no obligation to
contribute or loan any monies or property to the Partnership to enable it to
effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses
(including legal fees and expenses) incurred by an Indemnitee who is indemnified
pursuant to Section 7.7(a) in defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the Partnership prior to the
final disposition of such claim, demand, action, suit or proceeding upon receipt
by the Partnership of any undertaking by or on behalf of the Indemnitee to repay
such amount if it shall be determined that the Indemnitee is not entitled to be
indemnified as authorized in this Section 7.7.
(c) The indemnification provided by this Section 7.7 shall be
in addition to any other rights to which an Indemnitee may be entitled under any
agreement, pursuant to any vote of the Partners, as a matter of law or
otherwise, both as to actions in the Indemnitee's capacity as an Indemnitee and
as to actions in any other capacity, and shall continue as to an Indemnitee who
has ceased to serve in such capacity and shall inure to the benefit of the
heirs, successors, assigns and administrators of the Indemnitee.
(d) The Partnership may purchase and maintain (or reimburse
the Managing General Partner or its Affiliates for the cost of) insurance, on
behalf of the General Partners, their Affiliates and such other Persons as the
Managing General Partner shall determine, against any liability that may be
asserted against or expense that may be incurred by such Person in connection
with the Partnership's activities or such Person's activities on behalf of the
Partnership, regardless of whether the Partnership would have the power to
indemnify such Person against such liability under the provisions of this
Agreement.
(e) For purposes of this Section 7.7, the Partnership shall be
deemed to have requested an Indemnitee to serve as fiduciary of an employee
benefit plan whenever the performance by it of its duties to the Partnership
also imposes duties on, or otherwise involves services by, it to
<PAGE> 201
Exhibit 7-B
Page 39 of 58
the plan or participants or beneficiaries of the plan; excise taxes assessed on
an Indemnitee with respect to an employee benefit plan pursuant to applicable
law shall constitute "fines" within the meaning of Section 7.7(a); and action
taken or omitted by it with respect to any employee benefit plan in the
performance of its duties for a purpose reasonably believed by it to be in the
interest of the participants and beneficiaries of the plan shall be deemed to be
for a purpose which is in, or not opposed to, the best interests of the
Partnership.
(f) In no event may an Indemnitee subject the Limited Partners
to personal liability by reason of the indemnification provisions set forth in
this Agreement.
(g) An Indemnitee shall not be denied indemnification in
whole or in part under this Section 7.7 because the Indemnitee had an interest
in the transaction with respect to which the indemnification applies if the
transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 7.7 are for the benefit of
the Indemnitees, their heirs, successors, assigns and administrators and shall
not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 7.7
or any provision hereof shall in any manner terminate, reduce or impair (i) the
right of any Indemnitee to be indemnified by the Partnership, or (ii) the
obligations of the Partnership to indemnify any such Indemnitee under and in
accordance with the provisions of this Section 7.7 as in effect immediately
prior to such amendment, modification or repeal with respect to claims arising
from or relating to matters occurring, in whole or in part, prior to such
amendment, modification or repeal, regardless of when such claims may arise or
be asserted.
VII.8 LIABILITY OF INDEMNITEES.
(a) Notwithstanding anything to the contrary set forth in
this Agreement, no Indemnitee shall be liable for monetary damages to the
Partnership, the Limited Partners, the Assignees or any other Persons who have
acquired Partner Interests, for losses sustained or liabilities incurred as a
result of any act or omission if such Indemnitee acted in good faith.
(b) Subject to its obligations and duties as Managing
General Partner set forth in Section 7.1(a), the Managing General Partner may
exercise any of the powers granted to it by this Agreement and perform any of
the duties imposed upon it hereunder either directly or by or through its
agents, and the General Partners shall not be responsible for any misconduct or
negligence on the part of any such agent appointed by the Managing General
Partner in good faith.
(c) Any amendment, modification or repeal of this Section 7.8
or any provision hereof shall be prospective only and shall not in any way
affect the limitations on liability under this Section 7.8 as in effect
immediately prior to such amendment, modification or repeal with respect to
claims arising from or relating to matters occurring, in whole or in part, prior
to such amendment, modification or repeal, regardless of when such claims may
arise or be asserted.
<PAGE> 202
Exhibit 7-B
Page 40 of 58
VII.9 RESOLUTION OF CONFLICTS OF INTEREST.
(a) Unless otherwise expressly provided in this Agreement
whenever a potential conflict of interest exists or arises between one of the
General Partners or any of its Affiliates, on the one hand, and the Partnership,
the MLP, any Partner or any Assignee, on the other, any resolution or course of
action by the General Partners or their Affiliates in respect of such conflict
of interest shall be permitted and deemed approved by all Partners, and shall
not constitute a breach of this Agreement of any agreement contemplated herein,
or of any duty stated or implied by law or equity, if the resolution or course
of action is, or by operation of this Agreement is deemed to be, fair and
reasonable to the Partnership. The Managing General Partner shall be authorized
but not required in connection with its resolution of such conflict of interest
to seek Special Approval of such resolution. Any conflict of interest and any
resolution of such conflict of interest shall be conclusively deemed fair and
reasonable to the Partnership if such conflict of interest or resolution is (i)
approved by Special Approval, (ii) on terms no less favorable to the Partnership
than those generally being provided to or available from unrelated third parties
or (iii) fair to the Partnership, taking into account the totality of the
relationships between the parties involved (including other transactions that
may be particularly favorable or advantageous to the Partnership). The Managing
General Partner may also adopt a resolution or course of action that has not
received Special Approval. The Managing General Partner (including the Audit
Committee in connection with Special Approval) shall be authorized in connection
with its determination of what is "fair and reasonable" to the Partnership and
in connection with its resolution of any conflict of interest to consider (A)
the relative interests of any party to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interest; (B) any
customary or accepted industry practices and any customary or historical
dealings with a particular Person; (C) any applicable generally accepted
accounting practices or principles; and (D) such additional factors as the
Managing General Partner (including the Audit Committee) determines in its sole
discretion to be relevant, reasonable or appropriate under the circumstances.
Nothing contained in this Agreement, however, is intended to nor shall it be
construed to require the Managing General Partner (including the Audit
Committee) to consider the interests of any Person other than the Partnership.
In the absence of bad faith by the Managing General Partner, the resolution,
action or terms so made, taken or provided by the Managing General Partner with
respect to such matter shall not constitute a breach of this Agreement or any
other agreement contemplated herein or a breach of any standard of care or duty
imposed herein or therein or, to the extent permitted by law, under the Delaware
Act or any other law, rule or regulation.
(b) Whenever this Agreement or any other agreement
contemplated hereby provides that the Managing General Partner or any of its
Affiliates is permitted or required to make a decision (i) in its "sole
discretion" or "discretion," that it deems "necessary or appropriate" or
"necessary or advisable" or under a grant of similar authority or latitude,
except as otherwise provided herein, the Managing General Partner or such
Affiliate shall be entitled to consider only such interests and factors as it
desires and shall have no duty or obligation to give any consideration to any
interest of, or factors affecting, the Partnership, any Limited Partner or any
Assignee, (ii) it may make such decision in its sole discretion (regardless of
whether there is a reference to "sole discretion" or "discretion") unless
another express standard is provided for, or (iii) in "good faith"
<PAGE> 203
Exhibit 7-B
Page 41 of 58
or under another express standard, the Managing General Partner or such
Affiliate shall act under such express standard and shall not be subject to any
other or different standards imposed by this Agreement, any other agreement or
under the Delaware Act or any other law, rule or regulation. In addition, any
actions taken by the Managing General Partner or such Affiliate consistent with
the standards of "reasonable discretion" set forth in the definitions of
Available Cash shall not constitute a breach of any duty of the General Partner
to the Partnership, or any Limited Partner. The Managing General Partner shall
have no duty, express or implied, to sell or otherwise dispose of any asset of
the Partnership Group other than in the ordinary course of business.
(c) Whenever a particular transaction, arrangement or
resolution of a conflict of interest is required under this Agreement to be
"fair and reasonable" to any Person, the fair and reasonable nature of such
transaction, arrangement or resolution shall be considered in the context of all
similar or related transactions.
(d) The Limited Partners hereby authorize the Managing
General Partner, on behalf of the Partnership as a partner of a Group Member, to
approve actions by the general partner of such Group Member similar to those
actions permitted to be taken by the Managing General Partner pursuant to this
Section 7.9.
VII.10 OTHER MATTERS CONCERNING THE MANAGING GENERAL PARTNER.
(a) The Managing General Partner may rely and shall be
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties.
(b) The Managing General Partner may consult with legal
counsel, accountants, appraisers, management consultants, investment bankers and
other consultants and advisers selected by it, and any act taken or omitted to
be taken in reliance upon the opinion (including an Opinion of Counsel) of such
Persons as to matters that the Managing General Partner reasonably believes to
be within such Person's professional or expert competence shall be conclusively
presumed to have been done or omitted in good faith and in accordance with such
opinion.
(c) The Managing General Partner shall have the right, in
respect of any of its powers or obligations hereunder, to act through any of its
duly authorized officers, a duly appointed attorney or attorneys-in-fact or the
duly authorized officers of the Partnership.
(d) Any standard of care and duty imposed by this Agreement or
under the Delaware Act or any applicable law, rule or regulation shall be
modified, waived or limited, to the extent permitted by law, as required to
permit the Managing General Partner to act under this Agreement or any other
Agreement contemplated by this Agreement and to make any decision pursuant to
the authority prescribed in this Agreement, so long as such action is reasonably
believed by the Managing General Partner to be in, or not inconsistent with, the
best interests of the Partnership.
<PAGE> 204
Exhibit 7-B
Page 42 of 58
VII.11 RESERVED.
VII.12 RELIANCE BY THIRD PARTIES.
Notwithstanding anything to the contrary in this Agreement, any Person
dealing with the Partnership shall be entitled to assume that the Managing
General Partner and any officer of the Managing General Partner authorized by
the Managing General Partner to act on behalf of and in the name of the
Partnership has full power and authority to encumber, sell or otherwise use in
any manner any and all assets of the Partnership and to enter into any
authorized contracts on behalf of the Partnership, and such Person shall be
entitled to deal with the Managing General Partner or any such officer as if it
were the Partnership's sole party in interest, both legally and beneficially.
Each Limited Partner hereby waives any and all defenses or other remedies that
may be available against such Person to contest, negate or disaffirm any action
of the Managing General Partner or any such officer in connection with any such
dealing. In no event shall any Person dealing with the Managing General Partner
or any such officer or its representatives be obligated to ascertain that the
terms of this Agreement have been complied with or to inquire into the necessity
or expedience of any act or action of the Managing General Partner or any such
officer or its representatives. Each and every certificate, document or other
instrument executed on behalf of the Partnership by the Managing General Partner
or its representatives shall be conclusive evidence in favor of any and every
Person relying thereon or claiming thereunder that (a) at the time of the
execution and delivery of such certificate, document or instrument, this
Agreement was in full force and effect, (b) the Person executing and delivering
such certificate, document or instrument was duly authorized and empowered to do
so for and on behalf of the Partnership and (c) such certificate, document or
instrument was duly executed and delivered in accordance with the terms and
provisions of this Agreement and is binding upon the Partnership.
ARTICLE VIII
BOOKS, RECORDS, ACCOUNTING AND REPORTS
VIII.1 RECORDS AND ACCOUNTING.
The Managing General Partner shall keep or cause to be kept at the
principal office of the Partnership appropriate books and records with respect
to the Partnership's business, including all books and records necessary to
provide to the Limited Partners any information required to be provided pursuant
to Section 3.3(a). Any books and records maintained by or on behalf of the
Partnership in the regular course of its business, including books of account
and records of Partnership proceedings, may be kept on, or be in the form of,
computer disks, hard drives, punch cards, magnetic tape, photographs,
micrographics or any other information storage device, provided, that the books
and records so maintained are convertible into clearly legible written form
within a reasonable period of time. The books of the Partnership shall be
maintained, for financial reporting purposes, on an accrual basis in accordance
with U.S. GAAP.
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VIII.2 FISCAL YEAR.
The fiscal year of the Partnership shall be the calendar year.
ARTICLE IX
TAX MATTERS
IX.1 PREPARATION OF TAX RETURNS.
The Partnership shall timely file all returns of the Partnership that
are required for federal, state and local income tax purposes on the basis of
the accrual method and a taxable year ending on December 31. The tax information
reasonably required by the Partners for federal and state income tax reporting
purposes with respect to a taxable year shall be furnished to them within 90
days of the close of the calendar year in which the Partnership's taxable year
ends. The classification, realization and recognition of income and deductions
and other items shall be on the accrual method of accounting for federal income
tax purposes.
IX.2 TAX ELECTIONS.
(a) The Partnership shall have in effect an election under
Section 754 of the Code in accordance with applicable regulations thereunder.
(b) The Partnership elected to deduct expenses incurred in
organizing the Partnership ratably over a sixty-month period as provided in
Section 709 of the Code.
(c) Except as otherwise provided herein, the Managing General
Partner shall determine whether the Partnership should make any other elections
permitted by the Code.
IX.3 TAX CONTROVERSIES.
Subject to the provisions hereof, the Managing General Partner is
designated as the Tax Matters Partner (as defined in Section 6231 of the Code)
and is authorized and required to represent the Partnership (at the
Partnership's expense) in connection with all examinations of the Partnership's
affairs by tax authorities, including resulting administrative and judicial
proceedings, and to expend Partnership funds for professional services and costs
associated therewith; provided, however, that the Special Limited Partner may
exercise the authority and responsibilities provided for in Section 5.2 of the
Purchase Agreement. Each Partner agrees to cooperate with the Managing General
Partner and to do or refrain from doing any or all things reasonably required by
the Managing General Partner to conduct such proceedings.
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IX.4 WITHHOLDING.
Notwithstanding any other provision of this Agreement, the Managing
General Partner is authorized to take any action that it determines in its
discretion to be necessary or appropriate to cause the Partnership to comply
with any withholding requirements established under the Code or any other
federal, state or local law including, without limitation, pursuant to Sections
1441, 1442, 1445 and 1446 of the Code. To the extent that the Partnership is
required or elects to withhold and pay over to any taxing authority any amount
resulting from the allocation or distribution of income to any Partner
(including, without limitation, by reason of Section 1446 of the Code), the
amount withheld may be treated as a distribution of cash pursuant to Section 6.3
in the amount of such withholding from such Partner.
ARTICLE X
ADMISSION OF PARTNERS
X.1 ADMISSION OF THE GENERAL PARTNERS AND LIMITED PARTNERS.
The Managing General Partner was previously admitted as a
General Partner, the MLP was previously admitted as a Limited Partner (and is
now the Class A Limited Partner) and the Special Limited Partner was previously
admitted as a Limited Partner (and is now the Special Limited Partner).
X.2 ADMISSION OF SUBSTITUTED LIMITED PARTNERS.
Any person that is the successor in interest to a Limited Partner as
described in Section 4.3 or 4.5 shall be admitted to the Partnership as a Class
A Limited Partner or the Special Limited Partner, as applicable, upon (a)
furnishing to the Managing General Partner (i) acceptance in form satisfactory
to the Managing General Partner of all of the terms and conditions of this
Agreement and (ii) such other documents or instruments as may be required to
effect its admission as a Limited Partner in the Partnership and (b) obtaining
the consent of the Managing General Partner, which consent may be given or
withheld in the Managing General Partner's sole discretion, except that the
Managing General Partner shall give such consent to an affiliate of the Special
Limited Partner who has become a successor in interest pursuant to a transfer
permitted by Section 4.3. Such Person shall be admitted to the Partnership as a
Class A Limited Partner or the Special Limited Partner, as applicable,
immediately prior to the transfer of the Partner Interest, and the business of
the Partnership shall continue without dissolution.
X.3 ADMISSION OF SUCCESSOR OR TRANSFEREE GENERAL PARTNERS.
A successor General Partner approved pursuant to Section 11.1 or 11.2
or the transferee of or successor to all of a General Partner's Partner Interest
as a general partner in the Partnership pursuant to Section 4.2 who is proposed
to be admitted as a successor General Partner shall, subject to compliance with
the terms of Section 11.3, if applicable, be admitted to the Partnership as a
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General Partner, effective immediately prior to the withdrawal or removal of the
General Partner pursuant to Section 11.1 or 11.2 or the transfer of the General
Partner's Partner Interest as a general partner in the Partnership pursuant to
Section 4.2; provided, however, that no such successor shall be admitted to the
Partnership until such successor has executed and delivered such documents or
instruments as may be required, in the discretion of the Departing Partner, to
effect such admission. Any such successor shall, subject to the terms hereof,
carry on the business of the Partnership without dissolution.
X.4 ADMISSION OF ADDITIONAL LIMITED PARTNERS.
(a) A Person (other than the General Partners, the Special
Limited Partner, the MLP or a Substituted Limited Partner) who makes a Capital
Contribution to the Partnership in accordance with this Agreement shall be
admitted to the Partnership as an Additional Limited Partner only upon
furnishing to the Managing General Partner (i) evidence of acceptance in form
satisfactory to the Managing General Partner of all of the terms and conditions
of this Agreement, including the granting of the power of attorney granted in
Section 2.6 and (ii) such other documents or instruments as may be required in
the discretion of the Managing General Partner to effect such Person's admission
as an Additional Limited Partner.
(b) Notwithstanding anything to the contrary in this Section
10.4, no Person shall be admitted as an Additional Limited Partner without the
consent of the Managing General Partner, which consent may be given or withheld
in the Managing General Partner's discretion. The admission of any Person as an
Additional Limited Partner shall become effective on the date upon which the
name of such Person is recorded as such in the books and records of the
Partnership, following the consent of the Managing General Partner to such
admission.
X.5 AMENDMENT OF AGREEMENT AND CERTIFICATE OF LIMITED PARTNERSHIP.
To effect the admission to the Partnership of any Partner, the Managing
General Partner shall take all steps necessary and appropriate under the
Delaware Act to amend the records of the Partnership to reflect such admission
and, if necessary, to prepare as soon as practicable an amendment to this
Agreement and, if required by law, the Managing General Partner shall prepare
and file an amendment to the Certificate of Limited Partnership, and the
Managing General Partner may for this purpose, among others, exercise the power
of attorney granted pursuant to Section 2.6.
ARTICLE XI
WITHDRAWAL OR REMOVAL OF PARTNERS
XI.1 WITHDRAWAL OF THE GENERAL PARTNERS.
(a) The Managing General Partner shall be deemed to have
withdrawn from the Partnership upon the occurrence of any one of the following
events (each such event herein referred to as an "Event of Withdrawal");
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(i) the Managing General Partner voluntarily
withdraws from the Partnership by giving written notice to the other
Partners;
(ii) the Managing General Partner transfers all of
its rights as Managing General Partner pursuant to Section 4.2;
(iii) the Managing General Partner is removed
pursuant to Section 11.2;
(iv) the Managing General Partner (A) makes a general
assignment for the benefit of creditors; (B) files a voluntary
bankruptcy petition for relief under Chapter 7 of the United States
Bankruptcy Code; (C) files a petition or answer seeking for itself a
liquidation, dissolution or similar relief (but not a reorganization)
under any law; (D) files an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against
the Managing General Partner in a proceeding of the type described in
clauses (A)-(C) of this Section 11.1(a)(iv); or (E) seeks, consents to
or acquiesces in the appointment of a trustee (but not a debtor in
possession), receiver or liquidator of the Managing General Partner or
of all or any substantial part of its properties;
(v) a final and non-appealable order of relief under
Chapter 7 of the United States Bankruptcy Code is entered by a court
with appropriate jurisdiction pursuant to a voluntary or involuntary
petition by or against the Managing General Partner; or
(vi) (A) in the event the Managing General Partner is
a corporation, a certificate of dissolution or its equivalent is filed
for the Managing General Partner, or 90 days expire after the date of
notice to the Managing General Partner of revocation of its charter
without a reinstatement of its charter, under the laws of its state of
incorporation; (B) in the event the Managing General Partner is a
partnership, the dissolution and commencement of winding up of the
Managing General Partner; (C) in the event the Managing General Partner
is acting in such capacity by virtue of being a trustee of the trust,
the termination of the trust; (D) in the event the Managing General
Partner is a natural person, his death or adjudication of incompetency;
(E) and otherwise in the event of the termination of the Managing
General Partner.
If an Event of Withdrawal specified in Section 11.1(a)(iv), (v) or (vi) (A),
(B), (C) or (E) occurs, the withdrawing Managing General Partner shall give
notice to the Limited Partners within 30 days after such occurrence. The
Partners hereby agree that only the Events of Withdrawal described in this
Section 11.1 shall result in the withdrawal of the Managing General Partner from
the Partnership.
(b) Withdrawal of the Managing General Partner from the
Partnership upon the occurrence of an Event of Withdrawal shall not constitute a
breach of this Agreement under the following circumstances: (i) at any time
prior to July 1, 2006, the Managing General Partner voluntarily withdraws by
giving at least 90 days advance notice of its intention to withdraw to the
Limited Partners; provided, that prior to the effective date of such withdrawal
the Managing General
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Partner delivers to the Partnership an Opinion of Counsel ("Withdrawal Opinion
of Counsel") that such withdrawal (following the selection of the successor
Managing General Partner) would not result in the loss of the limited liability
of any Limited Partner or any limited partner of any Group Member or cause the
Partnership to be treated as an association taxable as a corporation or
otherwise to be taxed as an entity for federal income tax purposes; (ii) at any
time after June 30, 2006, the Managing General Partner voluntarily withdraws by
giving at least 90 days' advance notice to the Limited Partners, such withdrawal
to take effect on the date specified in such notice; or (iii) at any time that
the Managing General Partner ceases to be the Managing General Partner pursuant
to Section 11.1(a)(ii) or (iii). If the Managing General Partner gives a notice
of withdrawal pursuant to Section 11.1(a)(i) a majority in interest of the Class
A Limited Partners may, prior to the effective date of such withdrawal or
removal, elect a successor Managing General Partner. If, prior to the effective
date of the Managing General Partner's withdrawal, a successor is not selected
by the Class A Limited Partners as provided herein (or, if applicable, the
Partnership does not receive a Withdrawal Opinion of Counsel), the Partnership
shall be dissolved in accordance with Section 12.1. Any successor Managing
General Partner elected in accordance with the terms of this Section 11.1 shall
be subject to the provisions of Section 10.3.
XI.2 REMOVAL OF THE MANAGING GENERAL PARTNER.
The Managing General Partner may be removed if such removal is approved
by the Class A Limited Partners holding 66 2/3% of the Class A Limited Partner
Partner Interests (including the Partner Interests held by the General Partners
and their Affiliates). Any such action by such Class A Limited Partners for
removal of the Managing General Partner must also provide for the election of a
successor General Partner by the Class A Limited Partners holding at least a
majority of the Partner Interests (including the Partner Interests held by the
General Partners and their Affiliates). Such removal shall be effective
immediately following the admission of a successor General Partner pursuant to
Section 10.3. The removal of the Managing General Partner shall also
automatically constitute the removal of the Managing General Partner as general
partner of the other Group Members. If a Person is elected as a successor
General Partner in accordance with the terms of this Section 11.2, such Person
shall, upon admission pursuant to Section 10.3, automatically become the
successor general partner of the other Group Members. Any successor General
Partner elected in accordance with the terms of this Section 11.2 shall be
subject to the provisions of Section 10.3.
XI.3 INTEREST OF DEPARTING PARTNER AND SUCCESSOR GENERAL PARTNER.
(a) The Partner Interest of a Departing Partner departing
as a result of withdrawal or removal pursuant to Section 11.1 or 11.2 shall be
purchased by the successor to the Departing Partner for cash in an amount equal
to the fair market value of such Departing Partner"s Partner Interest, such
amount to be determined and payable as of the effective date of its departure.
Such purchase shall be a condition to the admission to the Partnership of the
successor as a General Partner. Any successor General Partner shall indemnify
the Departing Partner as to all debts and liabilities of the Partnership arising
on or after the effective date of the withdrawal or removal of the Departing
Partner.
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For purposes of this Section 11.3(a), the fair market value of
the Departing Partners' Partner Interest shall be determined by agreement
between the Departing Partner and its successor or, failing agreement within 30
days after the effective date of such Departing Partner"s departure, by an
independent investment banking firm or other independent expert selected by the
Departing Partner and its successor, which, in turn, may rely on other experts,
and the determination of which shall be conclusive as to such matter. If such
parties cannot agree upon one independent investment banking firm or other
independent expert within 45 days after the effective date of such departure,
then the Departing Partner shall designate an independent investment banking
firm or other independent expert, the Departing Partner"s successor shall
designate an independent investment banking firm or other independent expert,
and such firms or experts shall mutually select a third independent investment
banking firm or independent expert, which third independent investment banking
firm or other independent expert shall determine the fair market value of the
Departing Partner"s Partner Interest.
(b) The Departing Partner shall be entitled to receive
all reimbursements due such Departing Partner pursuant to Section 7.4, including
any employee-related liabilities (including severance liabilities), incurred in
connection with the termination of any employees employed by such Departing
Partner for the benefit of the Partnership.
(c) Any successor General Partner shall indemnify the
Departing Partner as to all debts and liabilities of the Partnership arising on
or after the effective date of the withdrawal or removal of the Departing
Partner.
XI.4 WITHDRAWAL OF THE LIMITED PARTNER.
Except as provided in Section 4.5, no Limited Partner shall have the
right to withdraw from the Partnership without the prior written consent of the
Managing General Partner, which may be granted or withheld in its sole
discretion.
ARTICLE XII
DISSOLUTION AND LIQUIDATION
XII.1 DISSOLUTION.
The Partnership shall not be dissolved by the admission of Substituted
Limited Partners or Additional Limited Partners or by the admission of a
successor General Partner in accordance with the terms of this Agreement. Upon
the removal or withdrawal of the Managing General Partner, if a successor
General Partner is elected pursuant to Section 11.1 or 11.2, the Partnership
shall not be dissolved and such successor Managing General Partner shall
continue the business of the Partnership. The Partnership shall dissolve, and
(subject to Section 12.2) its affairs shall be wound up, upon:
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(a) the expiration of its term as provided in Section 2.7;
(b) an Event of Withdrawal of the Managing General
Partner as provided in Section 11.1(a) (other than Section 11.1(a)(ii)), unless
a successor is elected and an Opinion of Counsel is received as provided in
Section 11.1(b) or 11.2 and such successor is admitted to the Partnership
pursuant to Section 10.3;
(c) an election to dissolve the Partnership by the Managing
General Partner that is approved by all of the Class A Limited Partners;
(d) entry of a decree of judicial dissolution of the
Partnership pursuant to the provisions of the Delaware Act; or
(e) the sale of all or substantially all of the assets and
properties of the Partnership Group.
XII.2 CONTINUATION OF THE BUSINESS OF THE PARTNERSHIP AFTER
DISSOLUTION.
Upon dissolution of the Partnership following an Event of Withdrawal
caused by the withdrawal or removal of the Managing General Partner as provided
in Section 11.1(a)(i) or (iii) and following a failure of the Class A Limited
Partners to appoint a successor Managing General Partner as provided in Section
11.1 or 11.2, then within 90 days thereafter, all of the Class A Limited
Partners may elect to reconstitute the Partnership and continue its business on
the terms and conditions set forth in this Agreement by forming a new limited
partnership on terms identical to those set forth in this Agreement and having
as a Managing General Partner a Person approved by the majority of the Class A
Limited Partners. Upon any such election by the Class A Limited Partners, all
Partners shall be bound thereby and shall be deemed to have approved same.
Unless such an election is made within the applicable time period as set forth
above, the Partnership shall conduct only activities necessary to wind up its
affairs. If such an election is so made, then:
(i) the reconstituted Partnership shall continue
until the end of the term set forth in Section 2.7 unless earlier
dissolved in accordance with this Article XII;
(ii) if the successor General Partner is not the
former Managing General Partner, then the interest of the former
Managing General Partner shall be purchased by the successor General
Partner; and
(iii) all necessary steps shall be taken to cancel
this Agreement and the Certificate of Limited Partnership and to enter
into and, as necessary, to file a new partnership agreement and
certificate of limited partnership, and the successor General Partner
may for this purpose exercise the powers of attorney granted the
Managing General Partner pursuant to Section 2.6; provided, that the
right to approve a successor General Partner and to reconstitute and to
continue the business of the Partnership shall not exist and may not be
exercised unless the Partnership has received an Opinion of Counsel
that (x) the
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exercise of the right would not result in the loss of limited liability
of the Limited Partners and (y) neither the Partnership, the
reconstituted limited partnership nor any Group Member would be treated
as an association taxable as a corporation or otherwise be taxable as
an entity for federal income tax purposes upon the exercise of such
right to continue.
XII.3 LIQUIDATOR.
Upon dissolution of the Partnership, unless the Partnership is
continued under an election to reconstitute and continue the Partnership
pursuant to Section 12.2, the Managing General Partner shall select one or more
Persons to act as Liquidator. The Liquidator (if other than the Managing General
Partner) shall be entitled to receive such compensation for its services as may
be approved by the Class A Limited Partners. The Liquidator (if other than the
Managing General Partner) shall agree not to resign at any time without 15 days'
prior notice and may be removed at any time, with or without cause, by notice of
removal approved by a majority in interest of the Class A Limited Partners. Upon
dissolution, removal or resignation of the Liquidator, a successor and
substitute Liquidator (who shall have and succeed to all rights, powers and
duties of the original Liquidator) shall within 30 days thereafter be approved
by a majority in interest of the Class A Limited Partners. The right to approve
a successor or substitute Liquidator in the manner provided herein shall be
deemed to refer also to any such successor or substitute Liquidator approved in
the manner herein provided. Except as expressly provided in this Article XII,
the Liquidator approved in the manner provided herein shall have and may
exercise, without further authorization or consent of any of the parties hereto,
all of the powers conferred upon the Managing General Partner under the terms of
this Agreement (but subject to all of the applicable limitations, contractual or
otherwise, upon the exercise of such powers) to the extent necessary or
desirable in the good faith judgment of the Liquidator to carry out the duties
and functions of the Liquidator hereunder for and during such period of time as
shall be reasonably required in the good faith judgment of the Liquidator to
complete the winding up and liquidation of the Partnership as provided for
herein.
XII.4 LIQUIDATION.
The Liquidator shall proceed to dispose of the assets of the
Partnership, discharge its liabilities, and otherwise wind up its affairs in
such manner and over such period as the Liquidator determines to be in the best
interest of the Partners, subject to Section 17-804 of the Delaware Act and the
following:
(a) Disposition of Assets. The assets may be disposed of
by public or private sale or by distribution in kind to one or more Partners on
such terms as the Liquidator and such Partner or Partners may agree. If any
property is distributed in kind, the Partner receiving the property shall be
deemed for purposes of Section 12.4(c) to have received cash equal to its fair
market value; and contemporaneously therewith, appropriate cash distributions
must be made to the other Partners. The Liquidator may, in its absolute
discretion, defer liquidation of the Partnership's assets for a reasonable time
if it determines that an immediate sale of all or part of the Partnership's
assets would be impractical or would cause undue loss to the Partners. The
Liquidator may, in its absolute
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discretion, distribute the Partnership's assets, in whole or in part, in kind if
it determines that a sale would be impractical or would cause undue loss to the
partners.
(b) Discharge of Liabilities. Liabilities of the
Partnership include amounts owed to Partners otherwise than in respect of their
distribution rights under Article VI. With respect to any liability that is
contingent or is otherwise not yet due and payable, the Liquidator shall either
settle such claim for such amount as it thinks appropriate or establish a
reserve of cash or other assets to provide for its payment. When paid, any
unused portion of the reserve shall be distributed as additional liquidation
proceeds.
(c) Liquidation Distributions. All property and all cash
in excess of that required to discharge liabilities as provided in Section
12.4(b) shall be distributed to the Partners in accordance with, and to the
extent of, the positive balances in their respective Capital Accounts, as
determined after taking into account all Capital Account adjustments (other than
those made by reason of distributions pursuant to this Section 12.4(c)) for the
taxable year of the Partnership during which the liquidation of the Partnership
occurs (with such date of occurrence being determined pursuant to Treasury
Regulation, Section 1.704-1(b)(2)(ii)(g)), and such distribution shall be made
by the end of such taxable year (or, if later, within 90 days after said date of
such occurrence).
XII.5 CANCELLATION OF CERTIFICATE OF LIMITED PARTNERSHIP.
Upon the completion of the distribution of Partnership cash and
property as provided in Section 12.4 in connection with the liquidation of the
Partnership, the Partnership shall be terminated and the Certificate of Limited
Partnership and all qualifications of the Partnership as a foreign limited
partnership in jurisdictions other than the State of Delaware shall be canceled
and such other actions as may be necessary to terminate the Partnership shall be
taken.
XII.6 RETURN OF CAPITAL CONTRIBUTIONS.
Except as provided in Section 12.8, the General Partners shall not be
personally liable for, and shall have no obligation to contribute or loan any
monies or property to the Partnership to enable it to effectuate, the return of
the Capital Contributions of any Limited Partner, or any portion thereof, it
being expressly understood that any such return shall be made solely from
Partnership assets.
XII.7 WAIVER OF PARTITION.
To the maximum extent permitted by law, each Partner hereby waives any
right to partition of the Partnership property.
XII.8 CAPITAL ACCOUNT RESTORATION.
No Limited Partner shall have any obligation to restore any negative
balance in its Capital Account upon liquidation of the Partnership. The Managing
General Partner shall be obligated to restore any negative balance in its
Capital Account upon liquidation of its interest in the Partnership
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by the end of the taxable year of the Partnership during which such liquidation
occurs, or, if later, within 90 days after the date of such liquidation.
ARTICLE XIII
AMENDMENT OF PARTNERSHIP AGREEMENT
XIII.1 AMENDMENT PROCEDURE.
Each Partner agrees that the Managing General Partner may amend any
provision of this Agreement and may execute, swear to, acknowledge, deliver,
file and record whatever documents may be required in connection therewith.
Unless such amendment is expressly permitted under this Agreement to be made by
the Managing General Partner acting alone, any such amendment, to be effective,
shall require the approval of a majority in interest of the Class A Limited
Partners. Other than as set forth in Section 13.2, no consent or approval of the
Special Limited Partner shall be required in connection with any such amendment.
XIII.2 LIMITATION.
Other than as set forth in the next sentence, notwithstanding any other
provision of this Agreement to the contrary, the Special Limited Partner shall
have no voting or approval rights with respect to any matter, including the
matters covered by Articles XI, XII, XIII and XIV hereof. Notwithstanding any
provision of this Agreement to the contrary, without the approval of the Special
Limited Partner no amendment of this Agreement shall (a) adversely affect the
tax deferral for the benefit of the Special Limited Partner sought to be
accomplished by the Debt Indemnity or (b) materially adversely affect the
non-voting, economic value of the Special Limited Partner"s Partner Interest.
ARTICLE XIV
MERGER
XIV.1 AUTHORITY.
The Partnership may merge or consolidate with one or more corporations,
business trusts or associations, real estate investment trusts, common law
trusts or unincorporated businesses, including a general partnership or limited
partnership, formed under the laws of the State of Delaware or any other state
of the United States of America, pursuant to a written agreement of merger or
consolidation ("Merger Agreement") in accordance with this Article XIV.
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XIV.2 PROCEDURE FOR MERGER OR CONSOLIDATION.
Merger or consolidation of the Partnership pursuant to this Article XIV
requires the prior approval of the Managing General Partner. If the Managing
General Partner shall determine, in the exercise of its discretion, to consent
to the merger or consolidation, the Managing General Partner shall approve the
Merger Agreement, which shall set forth:
(a) The names and jurisdictions of formation or organization
of each of the business entities proposing to merge or consolidate;
(b) The name and jurisdictions of formation or organization of
the business entity that is to survive the proposed merger or consolidation (the
"Surviving Business Entity");
(c) The terms and conditions of the proposed merger or
consolidation;
(d) The manner and basis of exchanging or converting the
equity securities of each constituent business entity for, or into, cash,
property or general or limited partner interests, rights, securities or
obligations of the Surviving Business Entity; and (i) if any general or limited
partner interests, securities or rights of any constituent business entity are
not to be exchanged or converted solely for, or into, cash, property or general
or limited partner interests, rights, securities or obligations of the Surviving
Business Entity, the cash, property or general or limited partner interests,
rights, securities or obligations of any limited partnership, corporation, trust
or other entity (other than the Surviving Business Entity) which the holders of
such general or limited partner interests, securities or rights are to receive
in exchange for, or upon conversion of their general or limited partner
interests, securities or rights, and (ii) in the case of securities represented
by certificates, upon the surrender of such certificates, which cash, property
or general or limited partner interests, rights, securities or obligations of
the Surviving Business Entity or any general or limited partnership,
corporation, trust or other entity (other than the Surviving Business Entity),
or evidences thereof, are to be delivered;
(e) A statement of any changes in the constituent
documents or the adoption of new constituent documents (the articles or
certificate of incorporation, articles of trust, declaration of trust,
certificate or agreement of limited partnership or other similar charter or
governing document) of the Surviving Business Entity to be effected by such
merger or consolidation;
(f) The effective time of the merger, which may be the
date of the filing of the certificate of merger pursuant to Section 14.4 or a
later date specified in or determinable in accordance with the Merger Agreement
(provided, that if the effective time of the merger is to be later than the date
of the filing of the certificate of merger, the effective time shall be fixed no
later than the time of the filing of the certificate of merger and stated
therein); and
(g) Such other provisions with respect to the proposed
merger or consolidation as are deemed necessary or appropriate by the Managing
General Partner.
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XIV.3 APPROVAL BY CLASS A LIMITED PARTNERS OF MERGER OR CONSOLIDATION.
(a) The Managing General Partner, upon its approval of
the Merger Agreement, shall direct that a copy or a summary of the Merger
Agreement be submitted to the Class A Limited Partners for their approval.
(b) The Merger Agreement shall be approved upon receiving
the approval of a majority in interest of the Class A Limited Partners.
(c) After such approval by the Class A Limited Partners,
and at any time prior to the filing of the certificate of merger pursuant to
Section 14.4, the merger or consolidation may be abandoned pursuant to
provisions therefor, if any, set forth in the Merger Agreement.
XIV.4 CERTIFICATE OF MERGER.
Upon the required approval by the Managing General Partner and the
Class A Limited Partners of a Merger Agreement, a certificate of merger shall be
executed and filed with the Secretary of State of the State of Delaware in
conformity with the requirements of the Delaware Act.
XIV.5 EFFECT OF MERGER.
(a) At the effective time of the certificate of merger:
(i) all of the rights, privileges and powers of each
of the business entities that has merged or consolidated, and all
property, real, personal and mixed, and all debts due to any of those
business entities and all other things and causes of action belonging
to each of those business entities shall be vested in the Surviving
Business Entity and after the merger or consolidation shall be the
property of the Surviving Business Entity to the extent they were of
each constituent business entity;
(ii) the title to any real property vested by deed or
otherwise in any of those constituent business entities shall not
revert and is not in any way impaired because of the merger or
consolidation;
(iii) all rights of creditors and all liens on or
security interests in property of any of those constituent business
entities shall be preserved unimpaired; and
(iv) all debts, liabilities and duties of those
constituent business entities shall attach to the Surviving Business
Entity, and may be enforced against it to the same extent as if the
debts, liabilities and duties had been incurred or contracted by it.
(b) A merger or consolidation effected pursuant to this
Article XIV shall not be deemed to result in a transfer or assignment of assets
or liabilities from one entity to another.
<PAGE> 217
Exhibit 7-B
Page 55 of 58
ARTICLE XV
GENERAL PROVISIONS
XV.1 ADDRESSES AND NOTICES.
Any notice, demand, request, report or proxy materials required or
permitted to be given or made to a Partner under this Agreement shall be in
writing and shall be deemed given or made when received by it at the principal
office of the Partnership referred to in Section 2.3.
XV.2 REFERENCES.
Except as specifically provided otherwise, references to "Articles" and
"Sections" are to Articles and Sections of this Agreement.
XV.3 FURTHER ACTION.
The parties shall execute and deliver all documents, provide all
information and take or refrain from taking action as may be necessary or
appropriate to achieve the purposes of this Agreement.
XV.4 BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their heirs, executors, administrators, successors, legal
representatives and permitted assigns.
XV.5 INTEGRATION.
This Agreement constitutes the entire agreement among the parties
hereto pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.
<PAGE> 218
Exhibit 7-B
Page 56 of 58
Nothing in this Agreement shall be deemed to waive or modify the rights
of any of the parties to the Purchase Agreement, to the extent therein provided,
and any and all remedies or damages asserted with respect to such rights shall
be governed solely by the Purchase Agreement.
XV.6 CREDITORS.
None of the provisions of this Agreement shall be for the benefit of,
or shall be enforceable by, any creditor of the Partnership.
XV.7 WAIVER.
No failure by any party to insist upon the strict performance of any
covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy consequent upon a breach thereof shall constitute waiver of any
such breach of any other covenant, duty, agreement or condition.
XV.8 COUNTERPARTS.
This Agreement may be executed in counterparts, all of which together
shall constitute an agreement binding on all the parties hereto, notwithstanding
that all such parties are not signatories to the original or the same
counterpart. Each party shall become bound by this Agreement immediately upon
affixing its signature hereto, independently of the signature of any other
party.
XV.9 APPLICABLE LAW.
This Agreement shall be construed in accordance with and governed by
the laws of the State of Delaware, without regard to the principles of conflicts
of law.
XV.10 INVALIDITY OF PROVISIONS.
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
<PAGE> 219
Exhibit 7-B
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
MANAGING GENERAL PARTNER:
CP HOLDINGS, INC.
By:
----------------------------------
Name:
Title:
CLASS A LIMITED PARTNER:
COLUMBIA PROPANE, L.P.
By:
----------------------------------
Name:
Title:
SPECIAL LIMITED PARTNER:
NATIONAL PROPANE CORPORATION
By:
----------------------------------
Name:
Title:
<PAGE> 220
Exhibit 7-B
Page 58 of 58
SCHEDULE A
<TABLE>
<CAPTION>
Committed
Name of Owner Capital Percentage Interest
- ------------- ------------ -------------------
<S> <C> <C>
MLP $68,600,000 98.0
Managing General Partner $ 700,000 1.0
Special Limited Partner $ 700,000 1.0
-----
100.0
</TABLE>
<PAGE> 221
Exhibit 8-B
Page 1 of 15
BYLAWS
OF
COLUMBIA ELECTRIC PEDRICK LIMITED II CORPORATION
ARTICLE I
Stockholders
Section 1.1. Annual Meetings. An annual meeting of stockholders
shall be held for the election of directors at such date, time and place, either
within or without the State of Delaware, as may be designated by resolution of
the Board of Directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of stockholders
for any purpose or purposes may be called at any time by the Board of Directors,
or by a committee of the Board of Directors that has been duly designated by the
Board of Directors and whose powers and authority, as expressly provided in a
resolution of the Board of Directors, include the power to call such meetings,
but such special meetings may not be called by any other person or persons.
Section 1.3. Notice of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given that shall state the place, date and hour of the meeting
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called. Unless otherwise provided by law, the certificate of
incorporation or these bylaws, the written notice of any meeting 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. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on the
records of the corporation.
Section 1.4. Adjournments. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting. 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, notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting.
Section 1.5. Quorum. Except as otherwise provided by law, the
certificate of incorporation or these bylaws, at each meeting of stockholders
the presence in person or by proxy of the holders of a majority in voting power
of the outstanding shares of stock entitled to vote at the meeting shall be
necessary and sufficient to constitute a quorum. In the absence of a quorum, the
<PAGE> 222
Exhibit 8-B
Page 2 of 15
stockholders so present may, by majority vote, adjourn the meeting from time to
time in the manner provided in Section 1.4 of these bylaws until a quorum shall
attend. Shares of its own stock belonging to the corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors of such other corporation is held, directly or indirectly, by the
corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of the
corporation or any subsidiary of the corporation to vote stock, including but
not limited to its own stock, held by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be
presided over by the Chairman of the Board, if any, or in his absence by the
Vice Chairman of the Board, if any, or in his absence by the President, or in
his absence by a Vice President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the person presiding over the
meeting may appoint any person to act as secretary of the meeting. The person
presiding over the meeting shall announce at the meeting of stockholders the
date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote.
Section 1.7. Voting; Proxies. Except as otherwise provided by the
certificate of incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one (1) vote for each share of stock held
by him which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders or to express consent or dissent
to corporate action in writing without a meeting may authorize another person or
persons to act for him by proxy, but no such proxy shall be voted or acted upon
after three (3) years from its date, unless the proxy provides for a longer
period. A proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing with the
Secretary of the corporation an instrument in writing revoking the proxy or by
delivering a proxy in accordance with applicable law bearing a later date to the
Secretary of the corporation. Voting at meetings of stockholders need not be by
written ballot. At all meetings of stockholders for the election of directors a
plurality of the votes cast shall be sufficient to elect. All other elections
and questions shall, unless otherwise provided by law, the certificate of
incorporation or these bylaws, be decided by the affirmative vote of the holders
of a majority in voting power of the shares of stock which are present in person
or by proxy and entitled to vote thereon.
Section 1.8. Fixing Date for Determination of Stockholders of
Record. 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 a record date, which record date shall not
precede the date upon which the resolution fixing the record date is
<PAGE> 223
Exhibit 8-B
Page 3 of 15
adopted by the Board of Directors, and which record date: (i) in the case of
determination of stockholders entitled to vote at any meeting of stockholders or
adjournment thereof, shall, unless otherwise required by law, not be more than
sixty (60) nor less than ten (10) days before the date of such meeting; (ii) in
the case of determination of stockholders entitled to express consent to
corporate action in writing without a meeting, shall not be more than ten (10)
days from the date upon which the resolution fixing the record date is adopted
by the Board of Directors; and (iii) in the case of determination of
stockholders for the purpose of any other lawful action, shall not be more than
sixty (60) days prior to such other action. If no record date is fixed: (iv) the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; (v) the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
of the Board of Directors is required by law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the corporation in accordance with applicable law, or, if prior
action by the Board of Directors is required by law, shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking
such prior action; and (vi) the record date for determining stockholders for the
purpose of any other lawful action, shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto. 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 1.9. List of Stockholders Entitled to Vote. The Secretary
shall prepare and make, at least ten (10) 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. Upon the willful neglect or refusal of the directors to produce such a
list at any meeting for the election of directors, they shall be ineligible for
election to any office at such meeting. Except as otherwise provided by law, the
stock ledger shall be the only evidence as to who are the stockholders entitled
(i) to examine the stock ledger, the list of stockholders entitled to vote at
the meeting or the books of the corporation, (ii) to vote in person or by proxy
at any meeting of stockholders, or (iii) to express consent or dissent to
corporate action in writing without a meeting.
Section 1.10. Action By Consent of Stockholders. Unless otherwise
restricted by the certificate of incorporation, any action required or permitted
to be taken at any annual or special meeting of the stockholders may be taken
without a meeting, without prior notice and without a
<PAGE> 224
Exhibit 8-B
Page 4 of 15
vote, if a consent or consents 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
and shall be delivered (by hand or by certified or registered mail, return
receipt requested) to the corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or an officer or agent
of the corporation having custody of the book in which minutes of proceedings of
meetings of stockholders are recorded. 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.
Section 1.11. Inspectors of Election. The corporation may, and
shall if required by law, in advance of any meeting of stockholders, appoint one
(1) or more inspectors of election, who may be employees of the corporation, to
act at the meeting or any adjournment thereof and to make a written report
thereof. The corporation may designate one (1) or more persons as alternate
inspectors to replace any inspector who fails to act. In the event that no
inspector so appointed or designated is able to act at a meeting of the
stockholders, the person presiding at the meeting shall appoint one (1) or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath to execute
faithfully the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspector or inspectors so appointed or
designated shall (i) ascertain the number of shares of capital stock of the
corporation outstanding and the voting power of each such share, (ii) determine
the shares of capital stock of the corporation represented at the meeting and
the validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares of capital stock of the corporation
represented at the meeting and such inspector's or inspectors' count of all
votes and ballots. Such certification and report shall specify such other
information as may be required by law. In determining validity and counting of
proxies and ballots cast at any meeting of stockholders of the corporation, the
inspectors may consider such information as is permitted by applicable law. No
person who is a candidate for an office at an election may serve as an inspector
at such election.
Section 1.12. Conduct of Meetings. The Board of Directors of the
corporation may adopt by resolution such rules and regulations for the conduct
of the meeting of stockholders as it shall deem appropriate. Except to the
extent inconsistent with such rules and regulations as adopted by the Board of
Directors, the person presiding over any meeting of stockholders shall have the
right and authority to prescribe such rules, regulations and procedures and to
do all such acts as, in the judgment of such person, are appropriate for the
proper conduct of the meeting. Such rules, regulations or procedures, whether
adopted by the Board of Directors or prescribed by the person presiding over the
meeting, may include, without limitation, the following: (i) the establishment
of an agenda or order of business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iii)
limitations on attendance at or participation in the meeting to stockholders of
record of the corporation, their duly authorized and constituted proxies or such
other persons as the person presiding over the meeting shall determine; (iv)
restrictions on
<PAGE> 225
Exhibit 8-B
Page 5 of 15
entry to the meeting after the time fixed for the commencement thereof; and (v)
limitations on the time allotted to questions or comments by participants.
Unless and to the extent determined by the Board of Directors or the person
presiding over the meeting, meetings of stockholders shall not be required to be
held in accordance with the rules of parliamentary procedure.
ARTICLE II
Board of Directors
Section 2.1. Number; Qualifications. The Board of Directors shall
consist of one (1) or more members. The number of members comprising the Board
of Directors initially shall be the number of persons named as directors in the
certificate of incorporation (or if no person is so named, the number of persons
elected by the Incorporator). The number of members comprising the Board of
Directors thereafter shall be determined from time to time by resolution of the
Board of Directors. Directors need not be stockholders.
Section 2.2. Election; Resignation; Removal; Vacancies. The Board
of Directors initially shall consist of the person or persons named as Directors
in the certificate of incorporation (or, if no person is so named, the person or
persons elected by the Incorporator), and each director so elected shall hold
office until his successor is elected and qualified or until his earlier death,
resignation, or removal. At the first annual meeting of stockholders and at each
annual meeting thereafter, the stockholders shall elect directors each of whom
shall hold office until his successor is elected and qualified or until his
earlier death, resignation, or removal. Any director may resign at any time upon
written notice to the corporation. Any newly created directorship or any vacancy
occurring in the Board of Directors for any cause may be filled by a majority of
the remaining members of the Board of Directors, although such majority is less
than a quorum, or by a plurality of the votes cast at a meeting of stockholders,
and each director so elected shall hold office until the expiration of the term
of office of the director whom he has replaced, or until his successor is
elected and qualified, or until his earlier death, resignation, or removal.
Section 2.3. Regular Meetings. Regular meetings of the Board of
Directors may be held at such places within or without the State of Delaware and
at such times as the Board of Directors may from time to time determine, and if
so determined notices thereof need not be given.
Section 2.4. Special Meetings. Special meetings of the Board of
Directors may be held at any time or place within or without the State of
Delaware whenever called by the President, any Vice President, the Secretary, or
by any member of the Board of Directors. Notice of a special meeting of the
Board of Directors shall be given by the person or persons calling the meeting
at least twenty-four (24) hours before the special meeting.
Section 2.5. Telephonic Meetings Permitted. Members of the Board
of Directors, or any committee designated by the Board of Directors, may
participate in a meeting thereof by means of conference telephone or similar
communications equipment by means of which all persons
<PAGE> 226
Exhibit 8-B
Page 6 of 15
participating in the meeting can hear each other, and participation in a meeting
pursuant to this bylaw shall constitute presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At all meetings of
the Board of Directors a majority of the whole Board of Directors shall
constitute a quorum for the transaction of business. Except in cases in which
the certificate of incorporation, these bylaws or applicable law otherwise
provides, the vote of a majority of the directors present at a meeting at which
a quorum is present shall be the act of the Board of Directors.
Section 2.7. Organization. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board, if any, or in his absence
by the Vice Chairman of the Board, if any, or in his absence by the President,
or in the absence of the foregoing persons by a chairman chosen at the meeting.
The Secretary shall act as secretary of the meeting, but in his absence the
person presiding over the meeting may appoint any person to act as secretary of
the meeting.
Section 2.8. Informal Action by Directors. Unless otherwise
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 such 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.
ARTICLE III
Committees
Section 3.1. Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
(1) or more committees, each committee to consist of one (1) or more of the
directors of the corporation. The Board of Directors may designate one (1) 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 the 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 place of any such absent or disqualified
member. Any such committee, to the extent permitted by law and 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.
Section 3.2. Committee Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board of Directors may
make, alter and repeal rules for the conduct of its business. In the absence of
such rules each committee shall conduct its business in the same manner as the
Board of Directors conducts its business pursuant to Article II of these bylaws.
<PAGE> 227
Exhibit 8-B
Page 7 of 15
ARTICLE IV
Officers
Section 4.1. Executive Officers; Election; Qualifications; Term
of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a
President and Secretary, and it may, if it so determines, choose a Chairman of
the Board and a Vice Chairman of the Board from among its members. The Board of
Directors may also choose one (1) or more Vice Presidents, one (1) or more
Assistant Secretaries, a Treasurer and one (1) or more Assistant Treasurers.
Each such officer shall hold office until the first meeting of the Board of
Directors after the annual meeting of stockholders next succeeding his election,
and until his successor is elected and qualified or until his earlier death,
resignation, or removal. Any officer may resign at any time upon written notice
to the corporation. The Board of Directors may remove any officer with or
without cause at any time, but such removal shall be without prejudice to the
contractual rights of such officer, if any, with the corporation. Any number of
offices may be held by the same person. Any vacancy occurring in any office of
the corporation by death, resignation, removal, or otherwise may be filled for
the unexpired portion of the term by the Board of Directors at any regular or
special meeting.
Section 4.2. Powers and Duties of Executive Officers.
(i) President. The President shall be the chief executive officer
of the corporation. Subject to the provisions of the certificate of
incorporation, these bylaws, and the direction of the Board of Directors, the
President shall have the responsibility for the general management and control
of the business and affairs of the corporation and shall perform all duties and
have all powers which are commonly incident to the office of chief executive or
which are delegated to him or her by the Board of Directors. The President shall
have power to execute in the name of the corporation all contracts, agreements,
deeds, bonds, mortgages, and other obligations and instruments of the
corporation which are authorized, and to affix the corporate seal thereto. The
President shall have general supervision and direction of all of the other
officers, employees, and agents of the corporation.
(ii) Vice President. Each Vice President, if any, shall have such
powers and perform such duties as the Board of Directors may from time to time
prescribe. The Vice President (if only one (1) Vice President is chosen by the
Board) or one (1) Vice President designated by the Board (if two (2) or more
Vice Presidents are chosen by the Board of Directors) shall perform the duties
and exercise the powers of the President in the event of the President's absence
or disability.
(iii) Treasurer. The Treasurer, if any, shall have the
responsibility for maintaining the financial records of the corporation. The
Treasurer shall make such disbursements of the funds of the corporation as are
authorized and shall render from time to time an account of all such
transactions and of the financial condition of the corporation. The Treasurer
shall have such other powers and perform such other duties as the Board of
Directors may from time to time prescribe.
<PAGE> 228
Exhibit 8-B
Page 8 of 15
(iv) Secretary. The Secretary shall issue all authorized notices
for, and shall keep minutes of, all meetings of the stockholders and of the
Board of Directors. The Secretary shall have charge of the corporate books and
seal, shall have the power to affix the corporate seal to documents duly
executed by any officer, and to attest to such affixation and execution, and
shall have such other powers and perform such other duties as the Board of
Directors may from time to time prescribe.
(v) Assistant Secretary and Assistant Treasurer. Each Assistant
Secretary, if any, and each Assistant Treasurer, if any, shall have such powers
and perform such duties as the Board of Directors may from time to time
prescribe.
(vi) Delegation of Authority. The Board of Directors may from
time to time delegate the powers or duties of any officer to any other officers
or agents, notwithstanding any provision hereof.
ARTICLE V
Stock
Section 5.1. Certificates. Every holder of stock shall be
entitled to have a certificate signed by or in the name of the corporation by
the Chairman or Vice Chairman of the Board of Directors, if any, or the
President or a Vice President, and by the Treasurer or an Assistant Treasurer,
or 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 a 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 5.2. Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificates. The corporation may issue a new certificate of
stock in the place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed, and the corporation may require the owner of the
lost, stolen or destroyed certificate, or his legal representative, to give the
corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VI
Indemnification
Section 6.1. Right to Indemnification. The corporation shall
indemnify and hold harmless, to the fullest extent permitted by applicable law
as it presently exists or may hereafter be amended, any person who was or is
made or is threatened to be made a party or is otherwise
<PAGE> 229
Exhibit 8-B
Page 9 of 15
involved in any threatened, pending, or completed action, suit 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 or officer 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, other enterprise or
non-profit entity, including service with respect to employee benefit plans (an
"indemnitee"), against all liability and loss suffered and expenses (including
attorneys' fees) reasonably incurred by such indemnitee. The corporation shall
be required to indemnify an indemnitee in connection with a proceeding (or part
thereof) initiated by such indemnitee only if the initiation of such proceeding
(or part thereof) by the indemnitee was authorized by the Board of Directors of
the corporation.
Section 6.2. Advancement of Expenses. The corporation shall pay
the expenses (including attorneys' fees) incurred by an indemnitee in defending
any proceeding referred to in Section 6.1 in advance of its final disposition;
provided, however, that the payment of expenses incurred by an indemnitee in
advance of the final disposition of such proceeding shall be made only upon
receipt of an undertaking by the indemnitee to repay all amounts advanced if it
should ultimately be determined that the indemnitee is not entitled to be
indemnified under this Article or otherwise.
Section 6.3. Claims. If a claim for indemnification or
advancement of expenses under this Article is not paid in full within sixty (60)
days after a written claim therefor by the indemnitee has been received by the
corporation, the indemnitee may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action the corporation shall have
the burden of proving that the indemnitee was not entitled to the requested
indemnification or advancement of expenses.
Section 6.4. Non-Exclusivity of Rights. The rights conferred on
any person by this Article shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision of the
certificate of incorporation, these bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 6.5. Other Indemnification. The corporation's obligation,
if any, to indemnify any person who was or is serving at its request as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, enterprise or non-profit entity shall be reduced by any amount
such person may collect as indemnification from such other corporation,
partnership, joint venture, trust, enterprise or non-profit entity.
Section 6.6. Amendment or Repeal. Any repeal or modification of
the foregoing provisions of this Article shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
<PAGE> 230
Exhibit 8-B
Page 10 of 15
ARTICLE VII
Miscellaneous
Section 7.1. Fiscal Year. The fiscal year of the corporation
shall be determined by resolution of the Board of Directors.
Section 7.2. Seal. The corporate seal shall be in such form as
may be approved from time to time by the Board of Directors.
Section 7.3. Waiver of Notice of Meetings of Stockholders,
Directors and Committees. Any written waiver of notice, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
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 any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice.
Section 7.4. Interested Directors; Quorum. No contract or
transaction between the corporation and one (1) or more of its directors or
officers, or between the corporation and any other corporation, partnership,
association, or other organization in which one (1) or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or
their votes are counted for such purpose, if: (i) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his relationship or interest and as to the contract or transaction are disclosed
or are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof, or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
Section 7.5. Form of Records. Any records maintained by the
corporation in the regular course of its business, including its stock ledger,
books of account, and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs, or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time.
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Exhibit 8-B
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Section 7.6. Amendment of Bylaws. These bylaws may be altered or
repealed, and new bylaws made, by the Board of Directors to the extent permitted
by the certificate of incorporation, but the stockholders may make additional
bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.
Date of Adoption: November 29, 1999
WRITTEN CONSENT OF DIRECTORS OF
COLUMBIA ELECTRIC PEDRICK LIMITED II CORPORATION
IN LIEU OF FIRST MEETING
The undersigned, being all of the members of the Board of
Directors (the "Board") of Columbia Electric Pedrick Limited II Corporation, a
Delaware corporation (the "Corporation"), waive the notice, calling, and holding
of a meeting of the Board, and in lieu of such a meeting, in accordance with
Section 141(f) of the General Corporation Law of the State of Delaware (the
"DGCL"), do hereby consent to, adopt, authorize, and approve the following
resolutions and the actions specified therein, and direct that this Written
Consent be filed with the minutes of proceedings of the Board:
INCORPORATION
RESOLVED, that the Organization Action in
Writing of the Incorporator of the Corporation, dated November
29, 1999, and the bylaws of the Corporation adopted by the
Incorporator as a part of such action, be and hereby are,
ratified, approved, accepted, and adopted.
ORGANIZATION
RESOLVED, that the Board of Directors of the
Corporation (the "Board") shall consist of three (3) members.
RESOLVED, that Michael J. Gluckman is hereby
designated as Chairman of the Board of Directors.
RESOLVED, that each of the following persons is
hereby elected to serve as an officer of the Corporation until
his or her successor is elected and qualified or until his or
her earlier death, resignation, disqualification, or removal:
President and Chief Executive Officer M. J. Gluckman
Senior Vice President R. M. Zulandi
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Exhibit 8-B
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Vice President N. K. Cody
Vice President R. L. Dennis*
Treasurer and Chief Financial Officer D. P. Detar
Secretary F. R. Gumbinner
*Duties limited to signing, executing and delivering
on behalf of the Corporation, applications,
pleadings, corporate undertakings, reports and other
documents necessary or appropriate to proceedings
before state and federal regulatory authorities.
BANK ACCOUNT
RESOLVED, that the Treasurer be, and he
hereby is, authorized and directed to open one or more general
account(s) in the name of the Corporation (each such account
being hereinafter referred to as a "General Account") with PNC
Bank, Pittsburgh, and/or any of its affiliated depository
institutions in any and all markets that they may serve ("PNC
All Markets"), as such institutions may be selected by the
Treasurer from time to time and, if the Treasurer deems
necessary or appropriate, to open or close any other bank
accounts that the Corporation has or may have with any other
depository institutions as the Treasurer may deem appropriate,
and that checks, drafts, and orders for payment of money
(including orders for repetitive or non-repetitive electronic
funds transfers) drawn against any General Account shall be
signed as provided in these Resolutions; and further
RESOLVED, that the Treasurer be, and he
hereby is, authorized and directed to cause PNC All Markets to
honor checks, drafts, or other orders on any General Account
for the payment of money drawn in the Corporation's name, and
cause PNC All Markets to honor and to charge this Corporation
for such checks, drafts, or other orders for payment (a)
signed by one (1) officer of the Corporation where any one
such check, draft, or order for payment of money is for an
amount less than twenty-five thousand dollars ($25,000.00) and
(b) signed by two (2) officers of the Corporation where any
one such check, draft or order for payment of money is for an
amount equal to or greater than twenty-five thousand dollars
($25,000.00), if such signatures resemble the specimens duly
certified to and filed with PNC All Markets by the Secretary
or Assistant Secretary of the Corporation; and further
RESOLVED, that the Treasurer of the
Corporation be, and he hereby is, authorized to enter into an
electronic funds transfer agreement with PNC All Markets in
order to provide for telegraphic, telephonic, or electronic
instructions pursuant to previously written orders signed in
accordance with
<PAGE> 233
Exhibit 8-B
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these Resolutions; and further
RESOLVED, that any such electronic funds
transfer arrangement may provide that PNC All Markets be
authorized to make such electronic funds transfers without
inquiry as to the circumstance of issue or the disposition of
the proceeds, provided, that such funds transfer instructions
are given and accepted by PNC All Markets in conformity with
written authorization signed by two (2) officers of the
Corporation whose signatures have been duly certified to PNC
All Markets by the Secretary or Assistant Secretary; and
further
RESOLVED, that the Treasurer be, and he
hereby is, authorized to designate to PNC All Markets, in
writing, individuals employed in the Columbia Energy Group
Service Corporation's 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 payment of money, which
may, 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 in any manner provided above, which designate the
recipients of such amounts and which identify what shall be
treated as routine items.
STOCK
RESOLVED, that the form of certificate for the
Corporation's common stock, par value one dollar ($1.00) per
share (the "Common Stock"), that is attached to this Written
Consent, be, and the same hereby is, adopted as the certificate
to represent shares of the Common Stock of the Corporation.
RESOLVED, that the Corporation shall issue and
sell one (1) share of Common Stock to Columbia Electric Pedrick
General Corporation ("CEPGC"), upon CEPGC's contribution to the
Corporation of a 14% interest in Pedricktown Cogeneration
Limited Partnership at such time as CEPGC may deem to be
appropriate, in CEPGC's sole discretion, and upon the issuance
of such Common Stock to CEPGC, and CEPGC's payment therefor as
aforesaid, such shares of Common Stock shall be duly and
legally issued to CEPGC and shall be fully paid and
nonassessable.
RESOLVED, that upon the issuance of such shares
of Common Stock, the officers of the Corporation be, and they
hereby are, authorized and directed to issue and cause to be
delivered to CEPGC a
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Exhibit 8-B
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properly executed certificate for such shares and, if
requested, a receipt for payment for such shares.
RESOLVED, that the officers of this Corporation
shall have no authority to sell or issue, or offer to sell or
issue, any shares of stock of the Corporation to any person or
entity other than CEPGC.
SEAL
RESOLVED, that the seal imprinted on the margin
hereof be, and the same hereby is, adopted as the Corporation's
corporate seal.
FISCAL YEAR
RESOLVED, that the fiscal year of the
Corporation shall be coextensive with the fiscal year of CEPGC.
ADMISSION TO PARTNERSHIP
RESOLVED, that the officers of the Corporation
be, and each of them hereby is, authorized and directed to
cause the Corporation to become admitted as, and assume all of
the duties and responsibilities of, a limited partner of
Pedricktown Cogeneration Limited Partnership, and in
furtherance thereof, to execute and deliver such documents,
including a Consent and Agreement in form and substance as
prepared by counsel to such partnership, and cause the
Corporation to perform its obligations thereunder, and
otherwise take such actions, at such time or times, and in such
steps, as such officer(s) may determine to be necessary or
appropriate, the taking of any such action by any such
officer(s) to be conclusive evidence of such determination.
This Written Consent may be executed in one or more
counterparts, each of which shall constitute an original document, but all of
which taken together shall constitute but one instrument. Each counterpart shall
be effective with respect to each member of the Board signing it, even if
another member of the Board whose signature is contemplated hereunder does not
sign the same counterpart.
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THE SIGNATURE PAGE(S) IMMEDIATELY FOLLOW]
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Exhibit 8-B
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IN WITNESS WHEREOF, the undersigned, being all of the members
of the Board, have executed and delivered to the Corporation this Written
Consent as of November 29, 1999.
NAME
____________________________________
Michael J. Gluckman
____________________________________
Robert M. Zulandi
____________________________________
Fredric R. Gumbinner
Receipt of the foregoing Written Consent is hereby acknowledged as of the 29th
day of November, 1999.
COLUMBIA ELECTRIC PEDRICK
LIMITED II CORPORATION
By:______________________________
Name: Fredric R. Gumbinner
Title: Secretary
<PAGE> 236
Exhibit 9-B
Page 1 of 15
BYLAWS
OF
COLUMBIA ELECTRIC PEDRICK GENERAL II CORPORATION
ARTICLE I
Stockholders
Section 1.1. Annual Meetings. An annual meeting of stockholders
shall be held for the election of directors at such date, time and place, either
within or without the State of Delaware, as may be designated by resolution of
the Board of Directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of stockholders
for any purpose or purposes may be called at any time by the Board of Directors,
or by a committee of the Board of Directors that has been duly designated by the
Board of Directors and whose powers and authority, as expressly provided in a
resolution of the Board of Directors, include the power to call such meetings,
but such special meetings may not be called by any other person or persons.
Section 1.3. Notice of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given that shall state the place, date and hour of the meeting
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called. Unless otherwise provided by law, the certificate of
incorporation or these bylaws, the written notice of any meeting 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. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on the
records of the corporation.
Section 1.4. Adjournments. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting. 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, notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting.
Section 1.5. Quorum. Except as otherwise provided by law, the
certificate of incorporation or these bylaws, at each meeting of stockholders
the presence in person or by proxy of the holders of a majority in voting power
of the outstanding shares of stock entitled to vote at the meeting shall be
necessary and sufficient to constitute a quorum. In the absence of a quorum, the
stockholders so present may, by majority vote, adjourn the meeting from time to
time in the manner provided in Section 1.4 of these bylaws until a quorum shall
attend. Shares of its own stock belonging to the corporation or to another
corporation, if a majority of the shares entitled to vote in
<PAGE> 237
Exhibit 9-B
Page 2 of 15
the election of directors of such other corporation is held, directly or
indirectly, by the corporation, shall neither be entitled to vote nor be counted
for quorum purposes; provided, however, that the foregoing shall not limit the
right of the corporation or any subsidiary of the corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be
presided over by the Chairman of the Board, if any, or in his absence by the
Vice Chairman of the Board, if any, or in his absence by the President, or in
his absence by a Vice President, or in the absence of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the person presiding over the
meeting may appoint any person to act as secretary of the meeting. The person
presiding over the meeting shall announce at the meeting of stockholders the
date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote.
Section 1.7. Voting; Proxies. Except as otherwise provided by the
certificate of incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one (1) vote for each share of stock held
by him which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders or to express consent or dissent
to corporate action in writing without a meeting may authorize another person or
persons to act for him by proxy, but no such proxy shall be voted or acted upon
after three (3) years from its date, unless the proxy provides for a longer
period. A proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing with the
Secretary of the corporation an instrument in writing revoking the proxy or by
delivering a proxy in accordance with applicable law bearing a later date to the
Secretary of the corporation. Voting at meetings of stockholders need not be by
written ballot. At all meetings of stockholders for the election of directors a
plurality of the votes cast shall be sufficient to elect. All other elections
and questions shall, unless otherwise provided by law, the certificate of
incorporation or these bylaws, be decided by the affirmative vote of the holders
of a majority in voting power of the shares of stock which are present in person
or by proxy and entitled to vote thereon.
Section 1.8. Fixing Date for Determination of Stockholders of
Record. 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 a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which record date: (i) in the case of determination
of stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty (60)
nor less than ten (10) days before the date of such meeting; (ii) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than ten (10) days from the date
<PAGE> 238
Exhibit 9-B
Page 3 of 15
upon which the resolution fixing the record date is adopted by the Board of
Directors; and (iii) in the case of determination of stockholders for the
purpose of any other lawful action, shall not be more than sixty (60) days prior
to such other action. If no record date is fixed: (iv) the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (v) the record date
for determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action of the Board of Directors is
required by law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation in accordance with applicable law, or, if prior action by the Board
of Directors is required by law, shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action; and
(vi) the record date for determining stockholders for the purpose of any other
lawful action, shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto. 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 1.9. List of Stockholders Entitled to Vote. The Secretary
shall prepare and make, at least ten (10) 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. Upon the willful neglect or refusal of the directors to produce such a
list at any meeting for the election of directors, they shall be ineligible for
election to any office at such meeting. Except as otherwise provided by law, the
stock ledger shall be the only evidence as to who are the stockholders entitled
(i) to examine the stock ledger, the list of stockholders entitled to vote at
the meeting or the books of the corporation, (ii) to vote in person or by proxy
at any meeting of stockholders, or (iii) to express consent or dissent to
corporate action in writing without a meeting.
Section 1.10. Action By Consent of Stockholders. Unless otherwise
restricted by the certificate of incorporation, any action required or permitted
to be taken at any annual or special meeting of the stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be signed by the
holders 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 and shall be
delivered (by hand or by certified or registered mail, return receipt requested)
to the corporation by delivery to its registered office in the State of
Delaware, its principal place of business, or an officer or agent of the
corporation having custody of the book in which minutes of proceedings of
meetings of stockholders are recorded. Prompt notice of the
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Exhibit 9-B
Page 4 of 15
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.
Section 1.11. Inspectors of Election. The corporation may, and
shall if required by law, in advance of any meeting of stockholders, appoint one
(1) or more inspectors of election, who may be employees of the corporation, to
act at the meeting or any adjournment thereof and to make a written report
thereof. The corporation may designate one (1) or more persons as alternate
inspectors to replace any inspector who fails to act. In the event that no
inspector so appointed or designated is able to act at a meeting of the
stockholders, the person presiding at the meeting shall appoint one (1) or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath to execute
faithfully the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspector or inspectors so appointed or
designated shall (i) ascertain the number of shares of capital stock of the
corporation outstanding and the voting power of each such share, (ii) determine
the shares of capital stock of the corporation represented at the meeting and
the validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares of capital stock of the corporation
represented at the meeting and such inspector's or inspectors' count of all
votes and ballots. Such certification and report shall specify such other
information as may be required by law. In determining validity and counting of
proxies and ballots cast at any meeting of stockholders of the corporation, the
inspectors may consider such information as is permitted by applicable law. No
person who is a candidate for an office at an election may serve as an inspector
at such election.
Section 1.12. Conduct of Meetings. The Board of Directors of the
corporation may adopt by resolution such rules and regulations for the conduct
of the meeting of stockholders as it shall deem appropriate. Except to the
extent inconsistent with such rules and regulations as adopted by the Board of
Directors, the person presiding over any meeting of stockholders shall have the
right and authority to prescribe such rules, regulations and procedures and to
do all such acts as, in the judgment of such person, are appropriate for the
proper conduct of the meeting. Such rules, regulations or procedures, whether
adopted by the Board of Directors or prescribed by the person presiding over the
meeting, may include, without limitation, the following: (i) the establishment
of an agenda or order of business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iii)
limitations on attendance at or participation in the meeting to stockholders of
record of the corporation, their duly authorized and constituted proxies or such
other persons as the person presiding over the meeting shall determine; (iv)
restrictions on entry to the meeting after the time fixed for the commencement
thereof; and (v) limitations on the time allotted to questions or comments by
participants. Unless and to the extent determined by the Board of Directors or
the person presiding over the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
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Exhibit 9-B
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ARTICLE II
Board of Directors
Section 2.1. Number; Qualifications. The Board of Directors shall
consist of one (1) or more members. The number of members comprising the Board
of Directors initially shall be the number of persons named as directors in the
certificate of incorporation (or if no person is so named, the number of persons
elected by the Incorporator). The number of members comprising the Board of
Directors thereafter shall be determined from time to time by resolution of the
Board of Directors. Directors need not be stockholders.
Section 2.2. Election; Resignation; Removal; Vacancies. The Board
of Directors initially shall consist of the person or persons named as Directors
in the certificate of incorporation (or, if no person is so named, the person or
persons elected by the Incorporator), and each director so elected shall hold
office until his successor is elected and qualified or until his earlier death,
resignation, or removal. At the first annual meeting of stockholders and at each
annual meeting thereafter, the stockholders shall elect directors each of whom
shall hold office until his successor is elected and qualified or until his
earlier death, resignation, or removal. Any director may resign at any time upon
written notice to the corporation. Any newly created directorship or any vacancy
occurring in the Board of Directors for any cause may be filled by a majority of
the remaining members of the Board of Directors, although such majority is less
than a quorum, or by a plurality of the votes cast at a meeting of stockholders,
and each director so elected shall hold office until the expiration of the term
of office of the director whom he has replaced, or until his successor is
elected and qualified, or until his earlier death, resignation, or removal.
Section 2.3. Regular Meetings. Regular meetings of the Board of
Directors may be held at such places within or without the State of Delaware and
at such times as the Board of Directors may from time to time determine, and if
so determined notices thereof need not be given.
Section 2.4. Special Meetings. Special meetings of the Board of
Directors may be held at any time or place within or without the State of
Delaware whenever called by the President, any Vice President, the Secretary, or
by any member of the Board of Directors. Notice of a special meeting of the
Board of Directors shall be given by the person or persons calling the meeting
at least twenty-four (24) hours before the special meeting.
Section 2.5. Telephonic Meetings Permitted. Members of the Board
of Directors, or any committee designated by the Board of Directors, may
participate in a meeting thereof by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
bylaw shall constitute presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At all meetings of
the Board of Directors a majority of the whole Board of Directors shall
constitute a quorum for the transaction of business. Except in cases in which
the certificate of incorporation, these bylaws or applicable law
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Exhibit 9-B
Page 6 of 15
otherwise provides, the vote of a majority of the directors present at a meeting
at which a quorum is present shall be the act of the Board of Directors.
Section 2.7. Organization. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board, if any, or in his absence
by the Vice Chairman of the Board, if any, or in his absence by the President,
or in the absence of the foregoing persons by a chairman chosen at the meeting.
The Secretary shall act as secretary of the meeting, but in his absence the
person presiding over the meeting may appoint any person to act as secretary of
the meeting.
Section 2.8. Informal Action by Directors. Unless otherwise
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 such 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.
ARTICLE III
Committees
Section 3.1. Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
(1) or more committees, each committee to consist of one (1) or more of the
directors of the corporation. The Board of Directors may designate one (1) 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 the 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 place of any such absent or disqualified
member. Any such committee, to the extent permitted by law and 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.
Section 3.2. Committee Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board of Directors may
make, alter and repeal rules for the conduct of its business. In the absence of
such rules each committee shall conduct its business in the same manner as the
Board of Directors conducts its business pursuant to Article II of these bylaws.
ARTICLE IV
Officers
Section 4.1. Executive Officers; Election; Qualifications; Term
of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a
President and Secretary, and it may, if it so determines, choose a Chairman of
the Board and a Vice Chairman of the Board from among its
<PAGE> 242
Exhibit 9-B
Page 7 of 15
members. The Board of Directors may also choose one (1) or more Vice Presidents,
one (1) or more Assistant Secretaries, a Treasurer and one (1) or more Assistant
Treasurers. Each such officer shall hold office until the first meeting of the
Board of Directors after the annual meeting of stockholders next succeeding his
election, and until his successor is elected and qualified or until his earlier
death, resignation, or removal. Any officer may resign at any time upon written
notice to the corporation. The Board of Directors may remove any officer with or
without cause at any time, but such removal shall be without prejudice to the
contractual rights of such officer, if any, with the corporation. Any number of
offices may be held by the same person. Any vacancy occurring in any office of
the corporation by death, resignation, removal, or otherwise may be filled for
the unexpired portion of the term by the Board of Directors at any regular or
special meeting.
Section 4.2. Powers and Duties of Executive Officers.
(i) President. The President shall be the chief executive officer
of the corporation. Subject to the provisions of the certificate of
incorporation, these bylaws, and the direction of the Board of Directors, the
President shall have the responsibility for the general management and control
of the business and affairs of the corporation and shall perform all duties and
have all powers which are commonly incident to the office of chief executive or
which are delegated to him or her by the Board of Directors. The President shall
have power to execute in the name of the corporation all contracts, agreements,
deeds, bonds, mortgages, and other obligations and instruments of the
corporation which are authorized, and to affix the corporate seal thereto. The
President shall have general supervision and direction of all of the other
officers, employees, and agents of the corporation.
(ii) Vice President. Each Vice President, if any, shall have such
powers and perform such duties as the Board of Directors may from time to time
prescribe. The Vice President (if only one (1) Vice President is chosen by the
Board) or one (1) Vice President designated by the Board (if two (2) or more
Vice Presidents are chosen by the Board of Directors) shall perform the duties
and exercise the powers of the President in the event of the President's absence
or disability.
(iii) Treasurer. The Treasurer, if any, shall have the
responsibility for maintaining the financial records of the corporation. The
Treasurer shall make such disbursements of the funds of the corporation as are
authorized and shall render from time to time an account of all such
transactions and of the financial condition of the corporation. The Treasurer
shall have such other powers and perform such other duties as the Board of
Directors may from time to time prescribe.
(iv) Secretary. The Secretary shall issue all authorized notices
for, and shall keep minutes of, all meetings of the stockholders and of the
Board of Directors. The Secretary shall have charge of the corporate books and
seal, shall have the power to affix the corporate seal to documents duly
executed by any officer, and to attest to such affixation and execution, and
shall have such other powers and perform such other duties as the Board of
Directors may from time to time prescribe.
<PAGE> 243
Exhibit 9-B
Page 8 of 15
(v) Assistant Secretary and Assistant Treasurer. Each Assistant
Secretary, if any, and each Assistant Treasurer, if any, shall have such powers
and perform such duties as the Board of Directors may from time to time
prescribe.
(vi) Delegation of Authority. The Board of Directors may from
time to time delegate the powers or duties of any officer to any other officers
or agents, notwithstanding any provision hereof.
ARTICLE V
Stock
Section 5.1. Certificates. Every holder of stock shall be
entitled to have a certificate signed by or in the name of the corporation by
the Chairman or Vice Chairman of the Board of Directors, if any, or the
President or a Vice President, and by the Treasurer or an Assistant Treasurer,
or 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 a 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 5.2. Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificates. The corporation may issue a new certificate of
stock in the place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed, and the corporation may require the owner of the
lost, stolen or destroyed certificate, or his legal representative, to give the
corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VI
Indemnification
Section 6.1. Right to Indemnification. The corporation shall
indemnify and hold harmless, to the fullest extent permitted by applicable law
as it presently exists or may hereafter be amended, any person who was or is
made or is threatened to be made a party or is otherwise involved in any
threatened, pending, or completed action, suit 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 or officer 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, other enterprise or non-profit
entity, including service with respect to employee benefit plans (an
"indemnitee"), against all liability and loss suffered and expenses (including
attorneys' fees) reasonably incurred by such indemnitee. The corporation shall
be required to indemnify an indemnitee in connection with a proceeding (or part
<PAGE> 244
Exhibit 9-B
Page 9 of 15
thereof) initiated by such indemnitee only if the initiation of such proceeding
(or part thereof) by the indemnitee was authorized by the Board of Directors of
the corporation.
Section 6.2. Advancement of Expenses. The corporation shall pay
the expenses (including attorneys' fees) incurred by an indemnitee in defending
any proceeding referred to in Section 6.1 in advance of its final disposition;
provided, however, that the payment of expenses incurred by an indemnitee in
advance of the final disposition of such proceeding shall be made only upon
receipt of an undertaking by the indemnitee to repay all amounts advanced if it
should ultimately be determined that the indemnitee is not entitled to be
indemnified under this Article or otherwise.
Section 6.3. Claims. If a claim for indemnification or
advancement of expenses under this Article is not paid in full within sixty (60)
days after a written claim therefor by the indemnitee has been received by the
corporation, the indemnitee may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action the corporation shall have
the burden of proving that the indemnitee was not entitled to the requested
indemnification or advancement of expenses.
Section 6.4. Non-Exclusivity of Rights. The rights conferred on
any person by this Article shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision of the
certificate of incorporation, these bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 6.5. Other Indemnification. The corporation's obligation,
if any, to indemnify any person who was or is serving at its request as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, enterprise or non-profit entity shall be reduced by any amount
such person may collect as indemnification from such other corporation,
partnership, joint venture, trust, enterprise or non-profit entity.
Section 6.6. Amendment or Repeal. Any repeal or modification of
the foregoing provisions of this Article shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
ARTICLE VII
Miscellaneous
Section 7.1. Fiscal Year. The fiscal year of the corporation
shall be determined by resolution of the Board of Directors.
Section 7.2. Seal. The corporate seal shall be in such form as
may be approved from time to time by the Board of Directors.
Section 7.3. Waiver of Notice of Meetings of Stockholders,
Directors and Committees. Any written waiver of notice, signed by the person
entitled to notice, whether before or after the
<PAGE> 245
Exhibit 9-B
Page 10 of 15
time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, 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 any regular or special meeting of the stockholders,
directors, or members of a committee of directors need be specified in any
written waiver of notice.
Section 7.4. Interested Directors; Quorum. No contract or
transaction between the corporation and one (1) or more of its directors or
officers, or between the corporation and any other corporation, partnership,
association, or other organization in which one (1) or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or
their votes are counted for such purpose, if: (i) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his relationship or interest and as to the contract or transaction are disclosed
or are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof, or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
Section 7.5. Form of Records. Any records maintained by the
corporation in the regular course of its business, including its stock ledger,
books of account, and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs, or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time.
Section 7.6. Amendment of Bylaws. These bylaws may be altered or
repealed, and new bylaws made, by the Board of Directors to the extent permitted
by the certificate of incorporation, but the stockholders may make additional
bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.
Date of Adoption: November 30, 1999
<PAGE> 246
Exhibit 9-B
Page 11 of 15
WRITTEN CONSENT OF DIRECTORS OF
COLUMBIA ELECTRIC PEDRICK GENERAL II CORPORATION
IN LIEU OF FIRST MEETING
The undersigned, being all of the members of the Board of
Directors (the "Board") of Columbia Electric Pedrick General II Corporation, a
Delaware corporation (the "Corporation"), waive the notice, calling, and holding
of a meeting of the Board, and in lieu of such a meeting, in accordance with
Section 141(f) of the General Corporation Law of the State of Delaware (the
"DGCL"), do hereby consent to, adopt, authorize, and approve the following
resolutions and the actions specified therein, and direct that this Written
Consent be filed with the minutes of proceedings of the Board:
INCORPORATION
RESOLVED, that the Organization Action in
Writing of the Incorporator of the Corporation, dated November
30, 1999, and the bylaws of the Corporation adopted by the
Incorporator as a part of such action, be and hereby are,
ratified, approved, accepted, and adopted.
ORGANIZATION
RESOLVED, that the Board of Directors of the
Corporation (the "Board") shall consist of three (3) members.
RESOLVED, that Michael J. Gluckman is hereby
designated as Chairman of the Board of Directors.
RESOLVED, that each of the following persons is
hereby elected to serve as an officer of the Corporation until
his or her successor is elected and qualified or until his or
her earlier death, resignation, disqualification, or removal:
President and Chief Executive Officer M. J. Gluckman
Senior Vice President R. M. Zulandi
Vice President N. K. Cody
Vice President R. L. Dennis*
Treasurer and Chief Financial Officer D. P. Detar
Secretary F. R. Gumbinner
*Duties limited to signing, executing and delivering on
behalf of the Corporation, applications, pleadings,
corporate undertakings, reports and other documents
necessary or appropriate to proceedings before state and
federal regulatory authorities.
<PAGE> 247
Exhibit 9-B
Page 12 of 15
BANK ACCOUNT
RESOLVED, that the Treasurer be, and he
hereby is, authorized and directed to open one or more general
account(s) in the name of the Corporation (each such account
being hereinafter referred to as a "General Account") with PNC
Bank, Pittsburgh, and/or any of its affiliated depository
institutions in any and all markets that they may serve ("PNC
All Markets"), as such institutions may be selected by the
Treasurer from time to time and, if the Treasurer deems
necessary or appropriate, to open or close any other bank
accounts that the Corporation has or may have with any other
depository institutions as the Treasurer may deem appropriate,
and that checks, drafts, and orders for payment of money
(including orders for repetitive or non-repetitive electronic
funds transfers) drawn against any General Account shall be
signed as provided in these Resolutions; and further
RESOLVED, that the Treasurer be, and he
hereby is, authorized and directed to cause PNC All Markets to
honor checks, drafts, or other orders on any General Account
for the payment of money drawn in the Corporation's name, and
cause PNC All Markets to honor and to charge this Corporation
for such checks, drafts, or other orders for payment (a)
signed by one (1) officer of the Corporation where any one
such check, draft, or order for payment of money is for an
amount less than twenty-five thousand dollars ($25,000.00) and
(b) signed by two (2) officers of the Corporation where any
one such check, draft or order for payment of money is for an
amount equal to or greater than twenty-five thousand dollars
($25,000.00), if such signatures resemble the specimens duly
certified to and filed with PNC All Markets by the Secretary
or Assistant Secretary of the Corporation; and further
RESOLVED, that the Treasurer of the
Corporation be, and he hereby is, authorized to enter into an
electronic funds transfer agreement with PNC All Markets in
order to provide for telegraphic, telephonic, or electronic
instructions pursuant to previously written orders signed in
accordance with these Resolutions; and further
RESOLVED, that any such electronic funds
transfer arrangement may provide that PNC All Markets be
authorized to make such electronic funds transfers without
inquiry as to the circumstance of issue or the disposition of
the proceeds, provided, that such funds transfer instructions
are given and accepted by PNC All Markets in conformity with
written authorization signed by two (2) officers of the
Corporation whose signatures have been duly certified to PNC
All Markets by the Secretary or Assistant Secretary; and
further
<PAGE> 248
Exhibit 9-B
Page 13 of 15
RESOLVED, that the Treasurer be, and he
hereby is, authorized to designate to PNC All Markets, in
writing, individuals employed in the Columbia Energy Group
Service Corporation's 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 payment of money, which may, 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 in any
manner provided above, which designate the recipients of such
amounts and which identify what shall be treated as routine
items.
STOCK
RESOLVED, that the form of certificate for the
Corporation's common stock, par value one dollar ($1.00) per
share (the "Common Stock"), that is attached to this Written
Consent, be, and the same hereby is, adopted as the certificate
to represent shares of the Common Stock of the Corporation.
RESOLVED, that the Corporation shall issue and
sell one (1) share of Common Stock to Columbia Electric Pedrick
General Corporation ("CEPGC"), upon CEPGC's contribution to the
Corporation of a 1% interest in Pedricktown Cogeneration
Limited Partnership at such time as CEPGC may deem to be
appropriate, in CEPGC's sole discretion, and upon the issuance
of such Common Stock to CEPGC, and CEPGC's payment therefor as
aforesaid, such shares of Common Stock shall be duly and
legally issued to CEPGC and shall be fully paid and
nonassessable.
RESOLVED, that upon the issuance of such shares
of Common Stock, the officers of the Corporation be, and they
hereby are, authorized and directed to issue and cause to be
delivered to CEPGC a properly executed certificate for such
shares and, if requested, a receipt for payment for such
shares.
RESOLVED, that the officers of this Corporation
shall have no authority to sell or issue, or offer to sell or
issue, any shares of stock of the Corporation to any person or
entity other than CEPGC.
SEAL
RESOLVED, that the seal imprinted on the margin
hereof be, and the same hereby is, adopted as the Corporation's
corporate seal.
<PAGE> 249
Exhibit 9-B
Page 14 of 15
FISCAL YEAR
RESOLVED, that the fiscal year of the
Corporation shall be coextensive with the fiscal year of CEPGC.
ADMISSION TO PARTNERSHIP
RESOLVED, that the officers of the Corporation
be, and each of them hereby is, authorized and directed to
cause the Corporation to become admitted as, and assume all of
the duties and responsibilities of, a general partner of
Pedricktown Cogeneration Limited Partnership, and in
furtherance thereof, to execute and deliver such documents,
including a Consent and Agreement in form and substance as
prepared by counsel to such partnership, and cause the
Corporation to perform its obligations thereunder, and
otherwise take such actions, at such time or times, and in such
steps, as such officer(s) may determine to be necessary or
appropriate, the taking of any such action by any such
officer(s) to be conclusive evidence of such determination.
This Written Consent may be executed in one or more
counterparts, each of which shall constitute an original document, but all of
which taken together shall constitute but one instrument. Each counterpart shall
be effective with respect to each member of the Board signing it, even if
another member of the Board whose signature is contemplated hereunder does not
sign the same counterpart.
[THE REMAINDER OF THIS PAGE IS BLANK INTENTIONALLY;
THE SIGNATURE PAGE(S) IMMEDIATELY FOLLOW]
<PAGE> 250
Exhibit 9-B
Page 15 of 15
IN WITNESS WHEREOF, the undersigned, being all of the members
of the Board, have executed and delivered to the Corporation this Written
Consent as of November 30, 1999.
NAME
___________________________________
Michael J. Gluckman
___________________________________
Robert M. Zulandi
___________________________________
Fredric R. Gumbinner
Receipt of the foregoing
Written Consent is hereby
acknowledged as of the 30th
day of November, 1999.
COLUMBIA ELECTRIC PEDRICK
GENERAL II CORPORATION
By:______________________________
Name: Fredric R. Gumbinner
Title: Secretary
<PAGE> 251
Exhibit 10-B
Page 1 of 14
COLUMBIA ELECTRIC LIBERTY MEMBER CORPORATION
*****
BYLAWS
*****
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 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 ordinary business hours, for a period of at least
ten days prior to the meeting,
<PAGE> 252
Exhibit 10-B
Page 2 of 14
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 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.
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.
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
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 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 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.
Section 10. 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 11. 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
<PAGE> 253
Exhibit 10-B
Page 3 of 14
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 actions 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. The number of Directors, which shall constitute the whole
Board, shall be not less than two or more than fifteen. 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 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 Certificate of
Incorporation or by these Bylaws 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
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.
<PAGE> 254
Exhibit 10-B
Page 4 of 14
Section 7. Special meetings of the Board may be called by the
president, the secretary, or any assistant secretary on two days' 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 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 9. Unless otherwise 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 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 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.
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 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 Certificate 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
Bylaws of the Corporation, declare a dividend, to authorize the issuance of
stock, or fill vacancies on the Board of Directors or any
<PAGE> 255
Exhibit 10-B
Page 5 of 14
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.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise 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
Section 1. 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 to directors may also be given by telegram, data facsimile, or other
similar method of transmitting a written communication.
Section 2. Whenever any notice is required to be given under the
provisions of applicable statute or of the Certificate of Incorporation or of
these Bylaws, 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, a secretary and a treasurer. The Board of
Directors may also choose vice-presidents, 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 Certificate of Incorporation
or these Bylaws otherwise provide.
Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose a president, a secretary and a
treasurer.
<PAGE> 256
Exhibit 10-B
Page 6 of 14
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.
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 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.
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, in the absence
of the president or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the president and shall perform such other
duties and have such other 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 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
<PAGE> 257
Exhibit 10-B
Page 7 of 14
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 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 and of the financial
condition of the Corporation.
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 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> 258
Exhibit 10-B
Page 8 of 14
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 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 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.
<PAGE> 259
Exhibit 10-B
Page 9 of 14
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.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. 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, 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.
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.
ANNUAL STATEMENT
Section 3. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
CHECKS
Section 4. All checks, drafts, notes, bills of exchange, and orders for
the payment of money (including orders for repetitive or non-repetitive
electronic funds transfers) in excess of twenty-five thousand dollars
($25,000.00) 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
<PAGE> 260
Exhibit 10-B
Page 10 of 14
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 Energy Group 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, 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 5. 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 6. 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.
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.
(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
<PAGE> 261
Exhibit 10-B
Page 11 of 14
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 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 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> 262
Exhibit 10-B
Page 12 of 14
(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 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 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 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
<PAGE> 263
Exhibit 10-B
Page 13 of 14
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)(l), 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 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 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 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
<PAGE> 264
Exhibit 10-B
Page 14 of 14
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 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.
ARTICLE IX
AMENDMENTS
Section 1. 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> 265
Exhibit 11-B
Page 1 of 9
COLUMBIA ELECTRIC GREGORY GENERAL 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 at such place as may be fixed from time to time by the board
of directors, either within or without the State of Delaware 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 of stockholders, commencing with the year
1998, 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 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
<PAGE> 266
Exhibit 11-B
Page 2 of 9
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 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.
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.
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
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 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 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.
Section 10. 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 11. 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
<PAGE> 267
Exhibit 11-B
Page 3 of 9
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. The number of directors which shall constitute the whole
board shall be not less than one nor more than five. The first board shall
consist of three directors. Thereafter, within the limits above specified, 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 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 or under
the direction of 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 certificate 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
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 .
<PAGE> 268
Exhibit 11-B
Page 4 of 9
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 facsimile communication;
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 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 9. Unless otherwise restricted by the certificate 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 a majority of the 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 certificate 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 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 matters: amending the
certificate 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
<PAGE> 269
Exhibit 11-B
Page 5 of 9
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.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate 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.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of applicable statute or of
the certificate 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.
Section 2. Whenever any notice is required to be given under the
provisions of applicable statute or of the certificate 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, and one or more assistant
secretaries and assistant treasurers, 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 certificate of incorporation or these by-laws otherwise
provide.
<PAGE> 270
Exhibit 11-B
Page 6 of 9
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president and a secretary.
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.
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 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,
<PAGE> 271
Exhibit 11-B
Page 7 of 9
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 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 and of the financial
condition of the corporation.
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 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.
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
<PAGE> 272
Exhibit 11-B
Page 8 of 9
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 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 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> 273
Exhibit 11-B
Page 9 of 9
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. 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, 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.
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.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such person or persons as the
board of directors may from time to time designate.
FISCAL YEAR
Section 5. 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 6. The corporate seal shall have inscribed thereon the name of
the corporation, 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.
ARTICLE VIII
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 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
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
<PAGE> 274
Exhibit 12-B
Page 1 of 9
COLUMBIA ELECTRIC GREGORY REMINGTON 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 at such place as may be fixed from time to time by the board
of directors, either within or without the State of Delaware 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 of stockholders, commencing with the year
1998, 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 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
<PAGE> 275
Exhibit 12-B
Page 2 of 9
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 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.
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.
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
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 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 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.
Section 10. 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 11. 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
<PAGE> 276
Exhibit 12-B
Page 3 of 9
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. The number of directors which shall constitute the whole
board shall be not less than one nor more than five. The first board shall
consist of three directors. Thereafter, within the limits above specified, 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 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 or under
the direction of 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 certificate 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
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 .
<PAGE> 277
Exhibit 12-B
Page 4 of 9
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 facsimile communication;
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 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 9. Unless otherwise restricted by the certificate 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 a majority of the 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 certificate 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 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 matters: amending the
certificate 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
<PAGE> 278
Exhibit 12-B
Page 5 of 9
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.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate 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.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of applicable statute or of
the certificate 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.
Section 2. Whenever any notice is required to be given under the
provisions of applicable statute or of the certificate 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, and one or more assistant
secretaries and assistant treasurers, 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 certificate of incorporation or these by-laws otherwise
provide.
<PAGE> 279
Exhibit 12-B
Page 6 of 9
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president and a secretary.
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.
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 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,
<PAGE> 280
Exhibit 12-B
Page 7 of 9
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 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 and of the financial
condition of the corporation.
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 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.
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
<PAGE> 281
Exhibit 12-B
Page 8 of 9
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 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 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> 282
Exhibit 12-B
Page 9 of 9
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. 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, 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.
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.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such person or persons as the
board of directors may from time to time designate.
FISCAL YEAR
Section 5. 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 6. The corporate seal shall have inscribed thereon the name of
the corporation, 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.
ARTICLE VIII
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 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
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
<PAGE> 283
Exhibit 13-B
Page 1 of 14
COLUMBIA ELECTRIC KELSON CORPORATION
*****
BYLAWS
*****
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 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 ordinary business hours, for a period of at least
ten days prior to the meeting,
<PAGE> 284
Exhibit 13-B
Page 2 of 14
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 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.
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.
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
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 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 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.
Section 10. 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 11. 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
<PAGE> 285
Exhibit 13-B
Page 3 of 14
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 actions 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. The number of Directors, which shall constitute the whole
Board, shall be not less than two or more than fifteen. 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 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 Certificate of
Incorporation or by these Bylaws 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
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.
<PAGE> 286
Exhibit 13-B
Page 4 of 14
Section 7. Special meetings of the Board may be called by the
president, the secretary, or any assistant secretary on two days' 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 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 9. Unless otherwise 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 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 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.
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 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 Certificate 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
Bylaws 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.
<PAGE> 287
Exhibit 13-B
Page 5 of 14
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise 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
Section 1. 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 to directors may also be given by telegram, data facsimile, or other
similar method of transmitting a written communication.
Section 2. Whenever any notice is required to be given under the
provisions of applicable statute or of the Certificate of Incorporation or of
these Bylaws, 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, a secretary and a treasurer. The Board of
Directors may also choose vice-presidents, 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 Certificate of Incorporation
or these Bylaws otherwise provide.
Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose a president, a secretary and a
treasurer.
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.
<PAGE> 288
Exhibit 13-B
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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.
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 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.
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, in the absence
of the president or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the president and shall perform such other
duties and have such other 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 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.
<PAGE> 289
Exhibit 13-B
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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 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 and of the financial
condition of the Corporation.
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 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.
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.
<PAGE> 290
Exhibit 13-B
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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 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 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> 291
Exhibit 13-B
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ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. 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, 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.
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.
ANNUAL STATEMENT
Section 3. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
CHECKS
Section 4. All checks, drafts, notes, bills of exchange, and orders for
the payment of money (including orders for repetitive or non-repetitive
electronic funds transfers) in excess of twenty-five thousand dollars
($25,000.00) 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 Energy Group 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, 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.
<PAGE> 292
Exhibit 13-B
Page 10 of 14
FISCAL YEAR
Section 5. 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 6. 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.
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.
(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 provisions, the
<PAGE> 293
Exhibit 13-B
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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 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).
(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
<PAGE> 294
Exhibit 13-B
Page 12 of 14
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
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 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 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)(l),
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 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.
<PAGE> 295
Exhibit 13-B
Page 13 of 14
(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 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 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,
<PAGE> 296
Exhibit 13-B
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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 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.
ARTICLE IX
AMENDMENTS
Section 1. 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> 297
Exhibit 14-B
Page 1 of 14
COLUMBIA ELECTRIC HAVERSTRAW CORPORATION
*****
BYLAWS
*****
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 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 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
<PAGE> 298
Exhibit 14-B
Page 2 of 14
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 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.
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.
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
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 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 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.
Section 10. 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 11. 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
<PAGE> 299
Exhibit 14-B
Page 3 of 14
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 actions 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. The number of Directors, which shall constitute the whole
Board, shall be not less than two or more than fifteen. 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 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 Certificate of
Incorporation or by these Bylaws 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
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.
<PAGE> 300
Exhibit 14-B
Page 4 of 14
Section 7. Special meetings of the Board may be called by the
president, the secretary, or any assistant secretary on two days' 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 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 9. Unless otherwise 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 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 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.
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 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 Certificate 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
Bylaws 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.
<PAGE> 301
Exhibit 14-B
Page 5 of 14
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise 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
Section 1. 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 to directors may also be given by telegram, data facsimile, or other
similar method of transmitting a written communication.
Section 2. Whenever any notice is required to be given under the
provisions of applicable statute or of the Certificate of Incorporation or of
these Bylaws, 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, a secretary and a treasurer. The Board of
Directors may also choose vice-presidents, 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 Certificate of Incorporation
or these Bylaws otherwise provide.
Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose a president, a secretary and a
treasurer.
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.
<PAGE> 302
Exhibit 14-B
Page 6 of 14
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.
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 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.
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, in the absence
of the president or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the president and shall perform such other
duties and have such other 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 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.
<PAGE> 303
Exhibit 14-B
Page 7 of 14
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 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 and of the financial
condition of the Corporation.
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 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.
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.
<PAGE> 304
Exhibit 14-B
Page 8 of 14
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 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 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> 305
Exhibit 14-B
Page 9 of 14
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. 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, 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.
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.
ANNUAL STATEMENT
Section 3. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
CHECKS
Section 4. All checks, drafts, notes, bills of exchange, and orders for
the payment of money (including orders for repetitive or non-repetitive
electronic funds transfers) in excess of twenty-five thousand dollars
($25,000.00) 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 Energy Group 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, 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.
<PAGE> 306
Exhibit 14-B
Page 10 of 14
FISCAL YEAR
Section 5. 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 6. 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.
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.
(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 provisions, the
<PAGE> 307
Exhibit 14-B
Page 11 of 14
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 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).
(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
<PAGE> 308
Exhibit 14-B
Page 12 of 14
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
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 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 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)(l),
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 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.
<PAGE> 309
Exhibit 14-B
Page 13 of 14
(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 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 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,
<PAGE> 310
Exhibit 14-B
Page 14 of 14
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 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.
ARTICLE IX
AMENDMENTS
Section 1. 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> 311
Exhibit 15-B
Page 1 of 14
COLUMBIA ELECTRIC LIBERTY MEMBER II CORPORATION
*****
BYLAWS
*****
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 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 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
<PAGE> 312
Exhibit 15-B
Page 2 of 14
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 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.
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.
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
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 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 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.
Section 10. 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 11. 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
<PAGE> 313
Exhibit 15-B
Page 3 of 14
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 actions 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. The number of Directors, which shall constitute the whole
Board, shall be not less than two or more than fifteen. 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 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 Certificate of
Incorporation or by these Bylaws 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
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.
<PAGE> 314
Exhibit 15-B
Page 4 of 14
Section 7. Special meetings of the Board may be called by the
president, the secretary, or any assistant secretary on two days' 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 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 9. Unless otherwise 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 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 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.
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 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 Certificate 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
Bylaws 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.
<PAGE> 315
Exhibit 15-B
Page 5 of 14
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise 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
Section 1. 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 to directors may also be given by telegram, data facsimile, or other
similar method of transmitting a written communication.
Section 2. Whenever any notice is required to be given under the
provisions of applicable statute or of the Certificate of Incorporation or of
these Bylaws, 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, a secretary and a treasurer. The Board of
Directors may also choose vice-presidents, 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 Certificate of Incorporation
or these Bylaws otherwise provide.
Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose a president, a secretary and a
treasurer.
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.
<PAGE> 316
Exhibit 15-B
Page 6 of 14
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.
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 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.
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, in the absence
of the president or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the president and shall perform such other
duties and have such other 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 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.
<PAGE> 317
Exhibit 15-B
Page 7 of 14
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 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 and of the financial
condition of the Corporation.
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 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.
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.
<PAGE> 318
Exhibit 15-B
Page 8 of 14
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 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 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> 319
Exhibit 15-B
Page 9 of 14
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. 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, 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.
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.
ANNUAL STATEMENT
Section 3. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
CHECKS
Section 4. All checks, drafts, notes, bills of exchange, and orders for
the payment of money (including orders for repetitive or non-repetitive
electronic funds transfers) in excess of twenty-five thousand dollars
($25,000.00) 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 Energy Group 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, 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.
<PAGE> 320
Exhibit 15-B
Page 10 of 14
FISCAL YEAR
Section 5. 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 6. 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.
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.
(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 provisions, the
<PAGE> 321
Exhibit 15-B
Page 11 of 14
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 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).
(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
<PAGE> 322
Exhibit 15-B
Page 12 of 14
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
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 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 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)(l),
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 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.
<PAGE> 323
Exhibit 15-B
Page 13 of 14
(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 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 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,
<PAGE> 324
Exhibit 15-B
Page 14 of 14
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 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.
ARTICLE IX
AMENDMENTS
Section 1. 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> 325
Exhibit 16-B
Page 1 of 14
COLUMBIA ELECTRIC LIBERTY II CORPORATION
*****
BYLAWS
*****
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 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 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
<PAGE> 326
Exhibit 16-B
Page 2 of 14
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 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.
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.
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
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 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 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.
Section 10. 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 11. 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
<PAGE> 327
Exhibit 16-B
Page 3 of 14
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 actions 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. The number of Directors, which shall constitute the whole
Board, shall be not less than two or more than fifteen. 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 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 Certificate of
Incorporation or by these Bylaws 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
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.
<PAGE> 328
Exhibit 16-B
Page 4 of 14
Section 7. Special meetings of the Board may be called by the
president, the secretary, or any assistant secretary on two days' 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 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 9. Unless otherwise 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 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 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.
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 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 Certificate 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
Bylaws 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.
<PAGE> 329
Exhibit 16-B
Page 5 of 14
Section 12. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise 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
Section 1. 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 to directors may also be given by telegram, data facsimile, or other
similar method of transmitting a written communication.
Section 2. Whenever any notice is required to be given under the
provisions of applicable statute or of the Certificate of Incorporation or of
these Bylaws, 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, a secretary and a treasurer. The Board of
Directors may also choose vice-presidents, 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 Certificate of Incorporation
or these Bylaws otherwise provide.
Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose a president, a secretary and a
treasurer.
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.
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Exhibit 16-B
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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.
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 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.
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, in the absence
of the president or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the president and shall perform such other
duties and have such other 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 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.
<PAGE> 331
Exhibit 16-B
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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 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 and of the financial
condition of the Corporation.
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 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.
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.
<PAGE> 332
Exhibit 16-B
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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 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 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> 333
Exhibit 16-B
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ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. 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, 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.
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.
ANNUAL STATEMENT
Section 3. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
CHECKS
Section 4. All checks, drafts, notes, bills of exchange, and orders for
the payment of money (including orders for repetitive or non-repetitive
electronic funds transfers) in excess of twenty-five thousand dollars
($25,000.00) 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 Energy Group 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, 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.
<PAGE> 334
Exhibit 16-B
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FISCAL YEAR
Section 5. 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 6. 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.
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.
(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 provisions, the
<PAGE> 335
Exhibit 16-B
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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 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).
(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
<PAGE> 336
Exhibit 16-B
Page 12 of 14
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
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 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 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)(l),
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 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.
<PAGE> 337
Exhibit 16-B
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(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 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 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,
<PAGE> 338
Exhibit 16-B
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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 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.
ARTICLE IX
AMENDMENTS
Section 1. 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> 339
Exhibit 17-B
Page 1 of 6
LIMITED LIABILITY COMPANY AGREEMENT
OF
COLUMBIA CAPACITY, LLC
AUGUST 11, 1999
<PAGE> 340
Exhibit 17-B
Page 2 of 6
LIMITED LIABILITY COMPANY AGREEMENT
OF
COLUMBIA CAPACITY, LLC
This Limited Liability Company Agreement (this "Agreement") of Columbia
Capacity, LLC (the "Company") is entered into by Columbia Electric Corporation
as initial member (the "Initial Member"), and each other individual or entity
becoming a member of the Company in accordance with the provisions of this
Agreement, in order to form and continue the Company as a limited liability
company pursuant to and in accordance with the Delaware Limited Liability
Company Act (6 Del. C. Section 18-101, et seq. (the "Act").
The parties hereto hereby agree as follows:
1. Name; Certificate of Formation. The name of the Company is Columbia
Capacity, LLC. Michael J. Gluckman is hereby authorized to, and shall, execute
and cause to be filed in the Office of the Secretary of State of the State of
Delaware (the "Secretary of State") a certificate of formation of the Company
(the "Certificate") in compliance with Section 18-201(a) of the Act.
2. Purposes and Powers. The purposes of the Company shall be to carry on
any lawful business or activity which limited liability companies are permitted
to carry on under the Act including the development, construction and operation
of an electric generating facility and to enter into any and all lawful
transactions and engage in any and all lawful activities necessary or incidental
to, or in furtherance of, the foregoing. The Company shall have the power to do
any and all acts and things necessary, appropriate, advisable and/or convenient
for the furtherance and accomplishment of the purposes of the Company.
3. Registered Office. The registered office of the Company in the State of
Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington,
County of New Castle, Delaware 19899.
4. Registered Agent. The name and address of the registered agent of the
Company for service of process on the Company in the State of Delaware is The
Corporation Trust Company, 1209 Orange Street, Wilmington, County of New Castle,
Delaware 19899.
5. Initial Member. The business, residence or mailing addresses of the
Initial Member is as listed on Schedule A to this Agreement. The Initial Member
shall be admitted to the Company upon the filing of the Certificate in the
Office of the Secretary of State.
6. Management. To the fullest extent permitted under the Act, management
of the Company shall be vested solely in Columbia Electric Corporation, a
Delaware corporation (the "Manager"), and the decision of the Manager as to all
such matters shall be controlling.
<PAGE> 341
Exhibit 17-B
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The Manager hereby accepts its appointment to manage the Company. No other
member shall have any right or power to manage the affairs of the Company. The
members shall only have such rights as are expressly provided to them under this
Agreement or the Act. The Manager is hereby granted all rights, powers,
authority and authorization necessary, appropriate, advisable and/or convenient
to manage the Company and determine and carry out its affairs.
6.1(A) Resignation/Appointment of Replacement Manager - The
Manager may resign effective upon the earlier of (i) fourteen (14) days
after delivery of written notice to all Members, and (ii) written
acceptance of such resignation signed by Members representing a majority
of the Ownership Interests outstanding at such time. The death,
dissolution or liquidation of the Manager shall constitute an effective
and immediate resignation of such Manager. Following any resignation of
the Manager, a replacement Manager may be appointed by written notice
signed by the Members representing not less than a majority of the
Ownership Interests outstanding at the time of such appointment,
provided that all Members are given written notice of such appointment
within thirty (30) days. The Manager may only be removed by written
notice signed by the Members representing not less than two-thirds
(2/3rds) of the Ownership Interests outstanding at the time of such
removal.
6.1(B) Manager's Representative Committee - All of the Member
Manager's powers and authority under this Agreement may be exercised by
or under authority of, and the business and affairs of the company
managed under the direction of, a Manager's Representative Committee
(the "MRC") consisting of three Representatives. The Manager shall
appoint each Representative and may terminate any appointment at any
time upon written notice. Notice of any appointment or termination of
an appointment shall be promptly delivered to all Members at the time
of such appointment or termination, as the case may be. Any appointment
hereunder shall also terminate promptly should the Manager that made
the appointment cease, for whatever reason, to be the Manager. The
Manager's Representative Committee shall resolve all matters brought
before them by simple majority vote, a quorum for such purposes
consisting of two or more Representatives in attendance at a meeting
(whether attending by telephone, video or in person) or the execution
of a written consent in lieu of a meeting.
6.1(C) Delegation of Authority. - The Manager's Representative
Committee may, from time to time, by majority vote delegate all or a
portion of its authority to manage the affairs of the LLC to one or
more individuals ("Officers"). Such delegation shall specify the nature
of the authority so delegated (by designation of a title or use of a
description), the name of the individual to whom so delegated, and the
duration, if not indefinite, of such delegation. Notice of any
delegation shall be promptly delivered to all Members at the time of
such delegation. Notwithstanding the foregoing rights of delegation,
the Manager's Representative Committee shall remain at all times
ultimately responsible for the proper exercise of any delegated
authority, and any delegation must (i) specify
<PAGE> 342
Exhibit 17-B
Page 4 of 6
and reserve to such Committee the right to terminate at any time such
delegation of authority, and (ii) provide expressly that upon proper
resignation or removal of the Manager, any authority delegated by the
Manager's Representative Committee shall promptly cease.
7. Term. The term of the Company shall commence upon the filing of the
Certificate in the Office of the Secretary of State and the Company shall have
perpetual existence unless dissolved in accordance with subsection (3), (4) or
(5) of Section 18-801 (a) of the Act
8. Capital Contributions; Percentage Interests. (a) The sole Member of the
Company has contributed cash or other property to the Company as follows:
$100.00.
(b) No member of the Company is required to make any capital
contribution to the Company in addition to the capital contribution, if any, set
forth in clause (a) of this Section 8.
(c) The percentage interests of the members in the Company (the
"Ownership Interests") for purposes of all allocations of profit and loss, and
distributions of cash and other property of the Company shall be in accordance
with the agreed value (as stated in the records of the Company) of the
respective capital contributions of all Members, expressed as a percentage, to
the extent that such contributions have been received by the Company and have
not been returned.
(d) Upon the admission of any other individual or entity as a member of
the Company in accordance with the terms of this Agreement, Section 8(b) hereof
shall be amended to reflect the extent, if any, that such member shall have any
right to receive allocations of profit or loss or distributions of cash or other
property or to participate in the management of the Company.
9. Distributions. At the time determined by the Manager, but at least once
during each fiscal year, the Manager shall cause the Company to distribute to
the members, to the extent permitted by the Act, any cash held by the Company
which is not reasonably necessary for the operation of the Company.
10. Assignments. A member of the Company may assign all or any part of his
limited liability company interest in the Company only with the prior written
consent of the Manager (which consent may be given or withheld in the sole
discretion of the Manager. An assignee of a member's limited liability company
interest in the Company may become a substitute member of the Company only with
the prior written consent of the Manager (which consent may be given or withheld
in the sole discretion of the Manager.
11. Additional Members.
(a) From time to time, the Company may issue additional limited
liability company interests, and additional members of the Company shall be
admitted with respect to such additional limited liability company interests
upon (i) the prior written consent of the Manager
<PAGE> 343
Exhibit 17-B
Page 5 of 6
(which consent may be given or withheld in the sole discretion of the Manager,
and (ii) the admission of such additional member(s) being reflected in the
records of the Company.
(b) Any individual or entity admitted as an additional member of the
Company pursuant to this Section 11 shall, upon being so admitted, become bound
by all of the terms of this Agreement to the same extent as if such individual
or entity were an original party to this Agreement.
12. Resignation. A member may resign from the Company only with the prior
written consent of the Manager (which consent may be given or withheld in the
sole discretion of the Manager.
13. Governing Law. This Agreement and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the State of
Delaware, and all rights and remedies shall be governed by such laws without
regard to principles of conflicts of laws.
14. Compensation. Except as may be provided in a written agreement between
the Company and a member, no member shall receive any compensation for services
rendered to the Company.
15. Counterparts. This Agreement may be executed in any number of
counterparts. Each counterpart shall be deemed to be an original instrument and
all counterparts, taken together, shall constitute one agreement.
This Agreement may be amended, from time to time, by writing signed by the
Members representing not less than two-thirds (2/3rds) of the Ownership
Interests outstanding of the time of such amendment; provided that all Members
are given written notice of such amendment within thirty (30) days.
IN WITNESS WHEREOF, the undersigned, intending to be bound hereby, have
duly executed this Agreement as of the 11th day of August, 1999.
INITIAL MEMBER AND MANAGER
COLUMBIA ELECTRIC CORPORATION
By:
-------------------------------------
Michael J. Gluckman
President and Chief Executive Officer
<PAGE> 344
Exhibit 17-B
Page 6 of 6
Schedule A
Columbia Electric Corporation
c/o Michael J. Gluckman, President and Chief Executive Officer
13880 Dulles Corner Lane
Herndon, VA 20171-4600
<PAGE> 1
Exhibit D
Page 1 of 6
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.
<TABLE>
<CAPTION>
Federal
Employer
Identification
Name and Address Number
- ---------------------------------------------------------- --------------
<S> <C>
Columbia Energy Group............................................................... 13-1594808
Columbia Finance Corporation........................................................ 51-0387496
Columbia Accounts Receivable Corporation......................................... 51-0387497
222 Delaware Avenue
Wilmington, DE 19801
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
Columbia Energy Group Capital Corporation........................................... 51-0331685
TriStar Gas Technologies, Inc.................................................... 51-0331689
Columbia Transmission Communications Corporation................................. 54-1911918
Columbia Network Services Corporation............................................... 55-0752155
CNS Microwave, Inc............................................................... 55-0753507
Columbia Pipeline Corporation....................................................... 51-0385015
Columbia Deep Water Services Company............................................. 54-1878331
13880 Dulles Corner Lane
Herndon, VA 20171
Columbia Electric Corporation....................................................... 55-0647910
Columbia Electric Pedrick General Corporation.................................... 51-0314105
Columbia Electric Binghamton General Corporation................................. 51-0324212
Columbia Electric Vineland General Corporation................................... 51-0324217
Columbia Electric Liberty Corporation............................................ 51-0324221
Columbia Electric Gregory General Corporation....................................... 54-1898607
13880 Dulles Corner Lane
Herndon, VA 20171
</TABLE>
<PAGE> 2
Exhibit D
Page 2 of 6
<TABLE>
<S> <C>
Columbia Electric Pedrick General II Corporation.................................... 54-1976535
Columbia Electric Pedrick Limited Corporation....................................... 51-0314565
Columbia Electric Pedrick Limited II Corporation.................................... 54-1965785
Columbia Electric Binghamton Limited Corporation.................................... 51-0324213
Columbia Electric Vineland Limited Corporation...................................... 51-0324218
Columbia Electric Rumford Limited Corporation....................................... 51-0324219
Columbia Electric Limited Holdings Corporation...................................... 51-0324220
Columbia Electric Gregory Remington Corporation..................................... 51-0381442
Columbia Electric Liberty II Corporation............................................ 23-3027204
Columbia Electric Liberty Member Corporation........................................ 23-3027208
Columbia Electric Liberty Member II Corporation..................................... 23-3027196
Columbia Electric Kelson Corporation................................................ 22-3699881
Columbia Electric Haverstraw Corporation............................................ 52-2212298
222 Delaware Avenue
Wilmington, DE 19801
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
Columbia Propane Corporation........................................................ 61-0565214
Columbia Petroleum Corporation................................................... 54-1938200
CP Holdings, Inc................................................................. 54-1936152
9200 Arboretum Parkway, Suite 140
Richmond, VA 23236
Columbia Energy Resources, Inc...................................................... 51-0384486
300 Delaware Avenue
Wilmington, DE 19801-1612
Columbia Natural Resources, Inc..................................................... 52-1383102
Alamco Delaware, Inc................................................................ 51-0356489
Hawg Hauling & Disposal, Inc..................................................... 55-0723936
Columbia Natural Resources Canada, Ltd........................................... 55-0765517
900 Pennsylvania Avenue
Charleston, WV 25302
</TABLE>
<PAGE> 3
Exhibit D
Page 3 of 6
<TABLE>
<S> <C>
Columbia Energy Services Corporation................................................ 61-0573109
Columbia Energy Retail Corporation............................................... 54-1917235
Columbia Energy Marketing Corporation............................................ 25-1770943
Columbia Energy Power Marketing Corporation...................................... 76-0553975
Columbia Service Partners, Inc...................................................... 25-1787891
Columbia Assurance Agency, Inc................................................... 31-1554921
Energy.com Corporation.............................................................. 54-1878300
13880 Dulles Corner Lane
Herndon, VA 20171
</TABLE>
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, 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
<PAGE> 4
Exhibit D
Page 4 of 6
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 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.
<PAGE> 5
Exhibit D
Page 5 of 6
(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.
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.
<PAGE> 6
Exhibit D
Page 6 of 6
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, 1999
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> OPUR1
<CIK> 0000022099
<NAME> COLUMBIA ENERGY GROUP AND SUBSIDIARIES
<SUBSIDIARY>
<NUMBER> 1
<NAME> CEG
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 4,441,800
<OTHER-PROPERTY-AND-INVEST> 704,000
<TOTAL-CURRENT-ASSETS> 1,393,200
<TOTAL-DEFERRED-CHARGES> 198,800
<OTHER-ASSETS> 358,100
<TOTAL-ASSETS> 7,095,900
<COMMON> 800
<CAPITAL-SURPLUS-PAID-IN> 1,611,600
<RETAINED-EARNINGS> 586,900
<TOTAL-COMMON-STOCKHOLDERS-EQ> 2,064,000
0
0
<LONG-TERM-DEBT-NET> 1,639,700
<SHORT-TERM-NOTES> 125,000
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 340,500
<LONG-TERM-DEBT-CURRENT-PORT> 311,300
0
<CAPITAL-LEASE-OBLIGATIONS> 2,800
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 2,615,400
<TOT-CAPITALIZATION-AND-LIAB> 7,095,900
<GROSS-OPERATING-REVENUE> 3,189,200
<INCOME-TAX-EXPENSE> 158,200
<OTHER-OPERATING-EXPENSES> 1,346,400
<TOTAL-OPERATING-EXPENSES> 2,540,800
<OPERATING-INCOME-LOSS> 648,400
<OTHER-INCOME-NET> 29,200
<INCOME-BEFORE-INTEREST-EXPEN> 677,600
<TOTAL-INTEREST-EXPENSE> 164,400
<NET-INCOME> 249,200
0
<EARNINGS-AVAILABLE-FOR-COMM> 249,200
<COMMON-STOCK-DIVIDENDS> 71,800
<TOTAL-INTEREST-ON-BONDS> 138,000
<CASH-FLOW-OPERATIONS> 831,600
<EPS-BASIC> 3.03
<EPS-DILUTED> 3.01
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
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<NUMBER> 1
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<TOTAL-CURRENT-ASSETS> 98,000
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<TOTAL-COMMON-STOCKHOLDERS-EQ> 78,600
0
0
<LONG-TERM-DEBT-NET> 200
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 47,900
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 0
0
<CAPITAL-LEASE-OBLIGATIONS> 200
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 102,100
<TOT-CAPITALIZATION-AND-LIAB> 228,800
<GROSS-OPERATING-REVENUE> 170,900
<INCOME-TAX-EXPENSE> 7,600
<OTHER-OPERATING-EXPENSES> 146,800
<TOTAL-OPERATING-EXPENSES> 146,800
<OPERATING-INCOME-LOSS> 24,100
<OTHER-INCOME-NET> 1,600
<INCOME-BEFORE-INTEREST-EXPEN> 25,700
<TOTAL-INTEREST-EXPENSE> 4,200
<NET-INCOME> 13,900
0
<EARNINGS-AVAILABLE-FOR-COMM> 13,900
<COMMON-STOCK-DIVIDENDS> 4,300
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<CASH-FLOW-OPERATIONS> 21,400
<EPS-BASIC> 0
<EPS-DILUTED> 0
</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
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<TOTAL-NET-UTILITY-PLANT> 799,800
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<TOTAL-CURRENT-ASSETS> 472,700
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<OTHER-ASSETS> 124,800
<TOTAL-ASSETS> 1,413,400
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<GROSS-OPERATING-REVENUE> 1,161,500
<INCOME-TAX-EXPENSE> 35,000
<OTHER-OPERATING-EXPENSES> 1,030,700
<TOTAL-OPERATING-EXPENSES> 1,030,700
<OPERATING-INCOME-LOSS> 130,800
<OTHER-INCOME-NET> 4,900
<INCOME-BEFORE-INTEREST-EXPEN> 135,700
<TOTAL-INTEREST-EXPENSE> 25,500
<NET-INCOME> 75,200
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<EARNINGS-AVAILABLE-FOR-COMM> 75,200
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WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
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<OTHER-OPERATING-EXPENSES> 45,700
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<TOTAL-INTEREST-EXPENSE> 1,400
<NET-INCOME> 3,800
0
<EARNINGS-AVAILABLE-FOR-COMM> 3,800
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WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
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<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 406,700
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<TOTAL-ASSETS> 700,200
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0
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0
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0
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WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 1
<NAME> CGV
<MULTIPLIER> 1,000
<S> <C>
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0
0
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0
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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> TCO
<MULTIPLIER> 1,000
<S> <C>
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0
0
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0
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0
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<EPS-BASIC> 0
<EPS-DILUTED> 0
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 1
<NAME> CGT
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
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0
0
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0
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0
<EARNINGS-AVAILABLE-FOR-COMM> 37,600
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<EPS-BASIC> 0
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</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NUMBER> 1
<NAME> CS
<MULTIPLIER> 1,000
<S> <C>
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<TOTAL-COMMON-STOCKHOLDERS-EQ> 300
0
0
<LONG-TERM-DEBT-NET> 0
<SHORT-TERM-NOTES> 0
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<LONG-TERM-DEBT-CURRENT-PORT> 0
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
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<INCOME-TAX-EXPENSE> 1,000
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<OTHER-INCOME-NET> (200)
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<NET-INCOME> 1,100
0
<EARNINGS-AVAILABLE-FOR-COMM> 1,100
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<TOTAL-INTEREST-ON-BONDS> 0
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<EPS-BASIC> 0
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</TABLE>
