<PAGE> 1
File Number 70-8285
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Amendment No. 3
to
FORM U-1
APPLICATION-DECLARATION UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
By
CONSOLIDATED NATURAL GAS COMPANY
CNG Tower
Pittsburgh, Pennsylvania 15222-3199
(a registered holding company and
the parent of the other party)
CNG POWER COMPANY
One Park Ridge Center
P.O. Box 15746
Pittsburgh, Pennsylvania 15244-0746
Names and addresses of agents for service:
S. E. WILLIAMS, Senior Vice President
and General Counsel
Consolidated Natural Gas Company
CNG Tower
625 Liberty Avenue
Pittsburgh, Pennsylvania 15222-3199
N. F. CHANDLER, General Attorney
Consolidated Natural Gas Service Company, Inc.
CNG Tower
625 Liberty Avenue
Pittsburgh, Pennsylvania 15222-3199
<PAGE> 2
File Number 70-8285
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 3
to
FORM U-1
APPLICATION-DECLARATION UNDER THE PUBLIC UTILITY
HOLDING COMPANY ACT OF 1935
Consolidated Natural Gas Company and CNG Power Company
hereby restate in its entirety their Form U-1 under the above
indicated file number as follows.
Item 1. DESCRIPTION OF PROPOSED TRANSACTION
___________________________________
(a) Furnish a reasonably detailed and precise
description of the proposed transaction, including a statement of
the reasons why it is desired to consummate the transaction and
the anticipated effect thereof. If the transaction is part of a
general program, describe the program and its relation to the
proposed transaction.
Consolidated Natural Gas Company ("Consolidated") is a
Delaware corporation and a public utility holding company
registered as such under the Public Utility Holding Company Act
of 1935 ("Act"). It is engaged solely in the business of owning
and holding all of the outstanding securities, with the
exception of certain minor long-term debt, of fifteen
subsidiaries. These subsidiary companies are primarily engaged
in natural gas exploration, production, purchasing, gathering,
transmission, storage, distribution, by-product operation,
research and other activities related to the natural gas
business.
<PAGE> 3
By Securities and Commission ("SEC") order dated
December 26, 1991 ("1991 Order"), HCAR No. 25446, File NO.
70-7909, Consolidated was authorized to provide, through December
31, 1996, up to $15,000,000 to its wholly-owned subsidiary, CNG
Energy Company, for it to engage in preliminary development and
administrative activities with respect to qualifying cogeneration
facilities ("QFs") as defined in the Public Utility Regulatory
Policies Act of 1978 ("PURPA"). As of December 31, 1994,
Consolidated has provided $2,095,000 to CNG Power under this
authorization. The name of CNG Energy Company was changed to CNG
Power Company ("CNG Power") as of January 16, 1995.
Consolidated now seeks certain changes with respect to
the authorization granted under the 1991 Order. These are to (i)
expand the authorization granted to CNG Power to include
authority to engage in preliminary development and administrative
activities with respect to qualifying small power production
facilities ("QSPs") as defined in PURPA, exempt wholesale
generators ("EWGs") within the meaning of Section 32 of the Act
and foreign utility companies ("FUCOS") within the meaning of
Section 33 of the Act, (ii) begin a new authorization period to
expire on December 31, 1998, and (iii) set the amount of maximum
aggregate financing permitted during the new period of
authorization at $15,000,000.
A. PROPOSED PRELIMINARY ACTIVITIES
CNG Power proposes to continue its preliminary project
development and administrative activities in connection with its
possible investments in QFs. Such activities will be
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consistent with those authorized in the 1991 Order and include,
but are not limited to, site investigations, feasibility studies,
preliminary design and engineering, licensing and permitting,
acquisition or project rights and options, negotiation of asset
acquisition, power sales, fuel supply, steam sales, engineering
and other related contracts, development of financing programs
and preparation of bids and other proposals in response to
requests for proposals and other solicitations for development of
such projects and facilities. Administrative activities would
include, among other things, accounting, tax, engineering,
financial, contract administration and other similar activities
associated with project development activities and the management
of CNG Energy's investments in QFs. All of the above activities
are hereinafter collectively referred to as "Preliminary
Activities".
CNG Power may also provide engineering, consulting,
permitting, management and other project development, operating
and maintenance services to affiliate companies at cost and to
non-affiliated parties at market-based rates. Revenues from
non-affiliated parties shall not exceed revenues for such
services from affiliated parties.
Prior to the passage of The Energy Policy Act of 1992,
P.L. 102-486 ("Energy Act"), Consolidated was prevented by
Section 11(b)(1) of the Act from acquiring interests in QSPs.
Section 713 of the Energy Act, however, provides that,
notwithstanding Section 11(b)(1) of PUHCA, a registered holding
company or a subsidiary of such holding company may acquire, in
any geographic area, an interest in any QSP as defined in PURPA.
<PAGE> 5
The Energy Act also added new Sections 32 and 33 to the
Act which deals with EWGs and FUCOs respectively. Section 32 of
the Act provides that a registered holding company without
SEC approval can acquire an interest in one or more EWGs.
Similar to Section 32, Section 33 of the Act authorizes
acquisition by a registered holding company of an interest in a
FUCO without SEC approval.
CNG Power now desires to expand its authority to engage
in Preliminary Activities to include not only those relating to
possible investments in QFs, but also those relating to possible
investments in QSPs, EWGs and FUCOs. This
application-declaration accordingly requests authority for
Consolidated to provide CNG Power, through December 31, 1998,
with up to $15,000,000 to engage in Preliminary Activities in
connection with possible investments in QFs, QSPs, EWGs and
FUCOs. Upon approval of this filing, Consolidated will no longer
provide CNG Power funds pursuant to the authorization received in
the 1991 Order under File No. 70-7909; all financing for
Preliminary Activities by CNG Power will be made pursuant to
authorization received in this proceeding.
Consolidated and CNG Power will not, without further
required SEC authorization, engage in any interaffiliate
financing for the future acquisition by CNG Power of an interest
in a QF, QSP, EWG or FUCO.
<PAGE> 6
B. SOURCE OF FUNDS
It is proposed for CNG Power to raise funds for the
purposes described herein by (i) selling shares of its common
stock, $1,000 par value, to Consolidated, (ii) open account
advances as described below, or (iii) long-term loans from
Consolidated, in any combination thereof.
The open account advances and long-term loans will have
the same effective terms and interest rates as related borrowings
of Consolidated in the forms listed below:
(1) Open Account Advances may be made to CNG Power to
provide working capital and to finance the activities
authorized by the SEC. Open account advances will be
made under letter agreement with CNG Power and will be
repaid on or before a date not more than one year from
the date of the first advance with interest at the same
effective rate of interest as Consolidated's weighted
average effective rate for commercial paper and/or
revolving credit borrowings. If no such borrowings are
outstanding, the interest rate shall be predicated on
the Federal Funds' effective rate of interest as quoted
daily by the Federal Reserve Bank of New York.
(2) Consolidated may make long-term loans to CNG Power
for the financing of its activities described herein.
Loans to CNG Power shall be evidenced by long-term
non-negotiable notes of
<PAGE> 7
CNG Power (documented by book entry only) maturing
over a period of time (not in excess of 30 years)
to be determined by the officers of Consolidated,
with the interest predicated on and substantially
equal to Consolidated's cost of funds for
comparable borrowings by the parent. In the event
Consolidated has not had recent comparable
borrowings, the rates will be tied to the Salomon
Brothers Inc indicative rate for comparable debt
issuances published in Salomon Brothers Inc Bond
Market Roundup or similar publication on the date
nearest to the time of takedown. All loans may be
prepaid at any time without premium or penalty.
Consolidated will obtain the funds required for CNG
Power through internal cash generation, issuance of long-term
debt securities, borrowings under credit agreements or through
other authorizations approved by the SEC subsequent to the
effective date of this application-declaration.
C. AUTHORIZATION REQUESTED
It is requested that the SEC issue an order in this
proceeding which would specifically provide for CNG Power, from
time to time through December 31, 1998, to obtain up to
$15,000,000 from Consolidated through (i) the sale of CNG Power
common stock to Consolidated (ii) open account advances from
Consolidated, and (iii) long-term loans from Consolidated, in any
combination thereof, for the purposes of engaging in QF, QSP, EWG
and FUCO Preliminary Activities.
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D. CERTIFICATES OF NOTIFICATION
CNG Power will file quarterly certificates of
notification, within 60 days after the end of each calendar
quarter, which will include the following information:
1. The type, amount and use of financing during the
quarter and cumulatively as part of the total
$15,000,000 authorized.
2. Balance sheet of the Power Generation Division of
CNG Power (in which Division Preliminary
Activities will be exclusively done) as of the
last day of the quarter.
3. Income statement of the Power Generation Division
of CNG Power for the quarter and cumulatively for
the year to date.
E. RULE 53 SATISFIED
Rule 54 promulgated under the Act states that in
determining whether to approve the issue or sale of a security by
a registered holding company for purposes other than the
acquisition of an electric wholesale generator ("EWG") or a
foreign utility company ("FUCO"), or other transactions by such
registered holding company or its subsidiaries other than with
respect to EWGs or FUCOs, the Commission shall not consider the
effect of the capitalization or earnings of any subsidiary which
is an EWG or a FUCO upon the registered holding company system if
Rules 53(a), (b) or (c) are satisfied. Currently Consolidated
owns indirectly a 1% general partnership and a 34%
<PAGE> 9
limited partnership interest in Lakewood Cogeneration, L.P.
("Lakewood"), an EWG. The 1% general partnership interest in
Lakewood is owned by CNG Power Services Corporation, an EWG and a
wholly-owned subsidiary of Consolidated. Consolidated does not
own any interests in a FUCO. Consolidated believes that Rule
53(a), (b) and (c) are satisfied in its case as follows.
Fifty percent of Consolidated's retained earnings as of
September 30, 1994 was $702,436,000; Consolidated's aggregate
investment (as defined in Rule 53(a)(l)(i)) in Lakewood on such
date and in both its EWGs as of the date of filing of this
Application-Declaration is estimated to be approximately
$18,000,000, thereby satisfying Rule 53(a)(l). Consolidated and
its subsidiaries maintain books and records to identify the
investments in and earnings from its EWGs in which they directly
or indirectly hold an interest, thereby satisfying Rule 53(a)(2).
Employees of Consolidated's domestic public-utility companies do
not render services, directly or indirectly, to the EWGs in the
Consolidated System, thereby satisfying Rule 53(a)(3). No
application for EWG financing has been filed with the Commission
since adoption of Rule 53; Rule 53(a)(4) is correspondingly
inapplicable at this time.
None of the conditions described in Rule 53(b) exist
with respect to Consolidated, thereby satisfying Rule 53(b) and
making Rule 53(c) inapplicable.
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Item 2. Fees, Commissions, and Expenses
_______________________________
(a) State (i) the fees, commissions and expenses paid
or incurred, or to be paid or incurred, directly or indirectly,
in connection with the proposed transaction by the applicant or
declarant or any associate company thereof, and (ii) if the
proposed transaction involves the sale of securities at
competitive bidding, the fees and expenses to be paid to counsel
selected by applicant or declarant to act for the successful
bidder.
It is estimated that the fees, commissions and expenses
ascertainable at this time to be incurred by Consolidated and CNG
Power in connection with the herein proposed transaction will not
exceed $7,000, including the $2,000 filing fee, $4,000 payable
to Consolidated Natural Gas Service Company, Inc. ("Service
Company") for services on a costbasis (including regularly
employed counsel) for the preparation of this
Application-Declaration and other documents, and $1,000 for
miscellaneous other expenses.
(b) If any person to whom fees or commissions have been
or are to be paid in connection with the proposed transaction is
an associate company or an affiliate of the applicant or
declarant, or is an affiliate of an associate company, set forth
the facts with respect thereto.
The charges of Service Company, a subsidiary service
company, for services on a cost basis (including regularly
employed counsel) in connection with the preparation of this
Application-Declaration and other related documents and papers
required to consummate the proposed transactions are described in
the response to Item 2(a) above.
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Item 3. Applicable Statutory Provisions
_______________________________
(a) State the section of the Act and the rules
thereunder believed to be applicable to the proposed transaction.
If any section or rule would be applicable in the absence of a
specific exemption, state the basis of exemption.
Sections 6(a) and 7 and Rule 43 are deemed applicable
to the issuance of securities by CNG Energy.
Sections 9(a) and 10 are deemed applicable to the
acquisitions by Consolidated of the capital stock, open account
advance debits and notes of CNG Power.
Sections 12(b) and Rule 45 are considered applicable to
loans made by Consolidated to CNG Power.
If the Commission considers the proposed future
transactions to require any authorization, approval or exemption,
under any section of the Act or Rule or Regulation other than
those cited herein, such authorization, approval or exemption is
hereby requested.
(b) If an applicant is not a registered holding company
or a subsidiary thereof, state the name of each public utility
company of which it is an affiliate or of which it will become an
affiliate as a result of the proposed transaction, and the
reasons why it is or will become such an affiliate.
Not applicable.
Item 4. Regulatory Approval
___________________
(a) State the nature and extent of the jurisdiction of
any State commission or any Federal commission (other than the
Securities and Exchange Commission) over the proposed
transactions.
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The financing authorization sought herein is not
subject to the jurisdiction of any State or Federal commission
(other than the Securities and Exchange Commission).
(b) Describe the action taken or proposed to be taken
before any commission named in answer to paragraph (a) of this
item in connection with the proposed transaction.
Inapplicable.
Item 5. Procedure
_________
(a) State the date when Commission action is requested.
If the date is less than 40 days from the date of the original
filing, set forth the reasons for acceleration.
It is hereby requested that the Commission issue its
order with respect to the transaction proposed herein by February
15, 1995.
(b) State (i) whether there should be a recommended
decision by a hearing officer, (ii) whether there should be a
recommended decision by any other responsible officer of the
Commission, (iii) whether the Division of Investment Management -
Office of Public Utility Regulation may assist in the
preparation of the Commission's decision, and (iv) whether there
should be a 30-day waiting period between the issuance of the
Commission's order and the date on which it is to become
effective.
It is submitted that a recommended decision by a
hearing or other responsible officer of the Commission is not
needed with respect to the proposed transactions. The office of
the Division of Investment Management - Office of Public Utility
Regulation may assist in the preparation of the Commission's
decision. There should be no waiting period between the
<PAGE> 13
issuance of the Commission's order and the date on which it is to
become effective.
Item 6. Exhibits and Financial Statements
_________________________________
The following exhibits and financial statement are made
a part of this statement:
(a) Exhibits
________
A-1 Certificate of Incorporation of CNG Power
(Filed with Amendment No. 3).
A-2 By-Laws of CNG Power
(Filed with Amendment No. 3).
Opinion of Counsel
__________________
F Opinion of Counsel for Consolidated
and CNG Power
(Filed with Original Form U-1).
Notice
______
O Proposed Notice pursuant to Rule 22(f)
(Filed with Original Form U-1).
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(b) Financial Statements
____________________
Financial statements of the
applicant-declarants are deemed unnecessary with
respect to the proposed authorizations sought
herein due to the simple nature of the proposed
transaction and the amount to be invested relative
to the size of the applicant-declarants. However,
any financial information will be furnished which
the Commission shall request.
Item 7. Information as to Environmental Effects
_______________________________________
(a) Describe briefly the environmental effects of the
proposed transaction in terms of the standards set forth in
Section 102 (2) (C) of the National Environmental Policy Act (42
U.S.C. 4232(2) (C)). If the response to this item is a negative
statement as to the applicability of Section 102(2)(C) in
connection with the proposed transaction, also briefly state the
reasons or that response.
The proposed transactions do not involve major federal
action having a significant effect on the human environment. See
Item 1(a).
(b) State whether any other federal agency has prepared
or is preparing an environmental impact statement ("EIS") with
respect to the proposed transaction. If any other federal agency
has prepared or is preparing an EIS, state which agency or
agencies and indicate the status of that EIS preparation.
No federal agency has prepared or is preparing an
environmental impact statement with respect to the proposed
transaction.
<PAGE> 15
SIGNATURES
__________
Pursuant to the requirements of the Public Utility
Holding Company Act of 1935, the undersigned Company has duly
caused this statement to be signed on its behalf by the
undersigned thereunto duly authorized.
CONSOLIDATED NATURAL GAS COMPANY
By L. D. Johnson
Executive Vice President
and Chief Financial Officer
CNG POWER COMPANY
By N. F. Chandler
Its Attorney
Dated: February 3, 1995
<PAGE> 1
EXHIBIT A-1
CERTIFICATE OF INCORPORATION
OF
CNG ENERGY COMPANY
FIRST. The name of the corporation (hereinafter called the
"corporation") is
CNG POWER COMPANY
__________________
SECOND. Its registered office in the State of Delaware is to
be located at No. 100 West Tenth Street, in the City of
Wilmington, County of New Castle. The registered agent in charge
thereof at such address is The Corporation Trust Company.
THIRD. The nature of the business, and the objects and
purposes proposed to be transacted, promoted and carred on are to
enage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The amount of the total authorized capital stock of
this Company is One Hundred Twelve Million Five Hundred Thousand
Dollars ($112,500,000) divided into 112,500 shares of One
Thousand Dollars ($1,000) par value each.
FIFTH. The name and mailing address of each incorporator is
as follows:
Name Mailing Address
____ _______________
K. L. Husfelt 100 West Tenth Street
Wilmington, Delaware 19801
B. A. Schuman 100 West Tenth Street
Wilmington, Delaware 19801
E. L. Kinsler 100 West Tenth Street
Wilmington, Delaware 19801
<PAGE> 2
SIXTH. The powers of the incorporators shall terminate upon
the filing of this Certificate of Incorporation, and the names
and mailing addresses of persons to serve as diretors until the
first annual meeting of stockholders or until their successors
are elected and qualify are:
Name Mailing Address
____ _______________
G. J. Tankersley 4 Gateway Center
Pittsburgh,PA 15222
T. A. White 4 Gateway Center
Pittsburgh,PA 15222
H. A. Offutt 4 Gateway Center
Pittsburgh,PA 15222
SEVENTH. For the management of the business and for the
conduct of the affairs of the Company, and in further definition,
limitation and regulation of the powers of the Company and of its
directors and stockholders, it is further provided:
1. The number of directors of the Company shall be such as
from time to time shall be fixed by, or in the manner
provided in, the By-Laws.
2. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
authorized:
(a) To make, alter or repeal the By-Laws of the Company
subject to the power of the stockholders to alter or
repeal the By-laws made by the Board of Directors.
(b) To authorize and cause to be executed mortgages and
liens upon the real and personal property of the
Company.
<PAGE> 3
(c) To determine whether any, and, if any, what part, of
the net profits of the Company 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.
(d) To set apart out of any funds of the Company
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 Company
(including the acquisition of real and personal
property for that purpose) and for any other purposes
of the Company.
(e) By resolution or resolutions passed by a majority of
the whole Board of Directors, to designate one or
more committees, each committee to consist of two or
more of the Directors of the Company. Any such
committee to the extent provided in the resolution or
in the By-Laws of the Company, shall have and may
exercise the powers of the Board of Directors in the
management of the business and affairs of the
Company.
<PAGE> 4
(f) 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 Company, 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
bests interest of the Company.
(g) The Company 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.
EIGHTH. Meetings of directors and stockholders may be held
within or without the State of Delaware, as the By-Laws may
provide. The books of the Company 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
Company. Election of directors need not be by written ballot
unless the By-Laws of the Company shall so provided.
<PAGE> 5
NINTH. The Company reserves the right to amend, alter,
change or repeal any provisions 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.
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 26th day of
October, 1981.
K. L. Husfelt (SEAL)
__________________________
K. L. Husfelt
B. A. Schuman (SEAL)
__________________________
B. A. Schuman
E. L. Kinsler (SEAL)
__________________________
E. L. Kinsler
<PAGE> 1 Exhibit A-2
CNG POWER COMPANY
BYLAWS
______
Effective January 16, 1994
<PAGE> 2
CONTENTS
1. OFFICES OF THE COMPANY
2. ANNUAL MEETINGS OF STOCKHOLDERS
3. SPECIAL MEETINGS OF STOCKHOLDERS
4. QUORUM AND VOTING AT MEETINGS
5. THE BOARD OF DIRECTORS
6. MEETINGS OF THE BOARD
7. THE COMMITTEES OF DIRECTORS
8. NOTICES
9. ACTION BY STOCKHOLDERS AND DIRECTORS WITHOUT MEETING
10. THE OFFICERS
11. THE CHAIRMAN OF THE BOARD AND THE PRESIDENT
12. THE VICE PRESIDENTS
13. THE SECRETARY AND ASSISTANT SECRETARIES
14. THE TREASURER AND ASSISTANT TREASURERS
15. INDEMNIFICATION
16. CERTIFICATES OF STOCK
17. DIVIDENDS
18. FISCAL YEAR
19. SEAL
20. EMERGENCY BYLAWS
21. AMENDMENTS
<PAGE> 3
CNG POWER COMPANY
BYLAWS
1. OFFICES OF THE COMPANY
______________________
1.01 The principal office of the company shall be in the
City of Pittsburgh, County of Allegheny, Commonwealth of
Pennsylvania.
1.02 The Company may also have offices at such other places
as the Board of Directors may from time to time determine or the
business of the Company may require.
2. ANNUAL MEETINGS OF STOCKHOLDERS
_______________________________
2.01 The annual meetings of Stockholders for the election
of Directors shall be held at the principal office of the Company
or at such other place within or without the Commonwealth of
Pennsylvania as the Board may designate from time to time.
2.02 The annual meeting of Stockholders shall be held on
the secular day, not a legal holiday, immediately preceding the
third Tuesday of May in each year, at such time as shall be
designated by the Secretary and set forth in the notice of the
meeting. The Stockholders shall elect a Board of Directors and
transact such other business as may properly come before the
meeting.
<PAGE> 4
3. SPECIAL MEETINGS OF STOCKHOLDERS
________________________________
3.01 Special meetings of Stockholders for any purpose or
purposes may be held at the time and place that shall be stated
in the notice of the meeting or in a duly executed waiver of
notice.
3.02 Special meetings of Stockholders may be called by the
Board, the president and Secretary, or the holders of not less
than ten percent of all the shares entitled to vote at such
meetings, unless otherwise prescribed by statute or by the
charter.
3.03 The business transacted at any special meeting of
Stockholders shall be limited to the purposes stated in the
notice.
4. QUORUM AND VOTING AT MEETINGS
_____________________________
4.01 The holders of a majority of the stock issued and
outstanding and entitled to vote, present in person or
represented by proxy, shall constitute a quorum at all meetings
of Stockholders for the transaction of business, except as
otherwise provided by statute or the charter or these bylaws.
If, however, such quorum shall not be present or represented at
any meeting of Stockholders, the Stockholders entitled to vote,
present in person or represented by proxy, shall have power to
<PAGE> 5
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 meetings, 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.
4.02 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 a different vote is required by express provision of a
statute or the charter or these bylaws, in which case such
express provision shall control the decision of such question.
4.03 At any meeting of Stockholders every Stockholder
having the right to vote shall be entitled to vote in person or
by proxy appointed by an instrument in writing subscribed by such
Stockholder or authorized agent and bearing a date not more than
one year prior to said meeting, unless such instrument provides
for a longer period. Each Stockholder shall have one vote for
each share of stock having voting power and registered in the
Stockholder's name on the books of the company. Except where a
date shall have been fixed as a record date for the
<PAGE> 6
determination of Stockholders entitled to vote at any meeting, no
share of stock which shall have been transferred on the books of
the company within ten days next preceding such meeting shall be
voted.
4.04 The person presiding at any meeting of Stockholders
may appoint one or more inspectors to determine the vote on any
question or election of Directors.
5. THE BOARD OF DIRECTORS
______________________
5.01 The number of Directors which shall constitute the
whole Board shall be fixed by resolution of a majority of the
whole Board.
5.02 Except as otherwise provided herein, the Directors
shall be elected at the annual meeting of Stockholders, and each
Director shall hold office until his successor shall be elected
and qualified; provided, however, that the term of office of a
Director who is an employee of the Company shall expire
simultaneously with his retirement from active service with the
Company. Directors need not be Stockholders.
5.03 Newly created directorships resulting from an increase
in the number of Directors constituting the whole Board and all
vacancies occurring in the membership of the Board may
<PAGE> 7
be filled by the affirmative vote of a majority of the remaining
Directors, though less than a quorum. A Director elected to fill
a newly created directorship or to fill a vacancy shall hold
office until his successor shall be elected and qualified.
5.04 The business of the company shall be managed by the
Board which may exercise all of the powers of the company except
those that are by statute or the charter or these bylaws
conferred upon or reserved to the Stockholders.
5.05 To the full extent that the General Corporation Law of
the State of Delaware, as the same now exists, permits
elimination or limitation 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, 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 involves 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
an improper personal benefit.
5.06 To the full extent permitted by law, all directors of
the Corporation shall be afforded any exemption from liability
or limitation of liability permitted by any subsequent
<PAGE> 8
enactment, modification or amendment of the General Corporation
Law of the State of Delaware.
5.07 Any repeal or modification of either or both of the
foregoing paragraphs by the stockholders of the Corporation shall
not adversely affect any exemption from liability, limitation of
liability or other right of a director of the Corporation with
respect to any matter occurring prior to such repeal or
modification.
6. MEETINGS OF THE BOARD
_____________________
6.01 Meetings of the Board may be held at such times and
places that the Board may from time to time designate by
resolution, or any such meeting may be held at the time and place
which shall be stated in the notice thereof as herein provided.
6.02 Notice of the time, place, or purpose of any meeting
of the Board may be dispensed with if every Director shall attend
in person, or if every absent Director shall, in writing, filed
with the records of the meeting either before or after the
holding thereof, waive such notice.
6.03 The notice or waiver of notice of a meeting of the
Board need not specify the purpose thereof.
<PAGE> 9
6.04 The majority of Directors shall constitute a quorum
for the transaction of business, unless otherwise required by
statute or the charter or these bylaws. The act of a majority of
the Directors at any meeting at which a quorum is present shall
be the act of the Board, unless otherwise required by statute or
the charter or these bylaws.
6.05 If a quorum shall not be present at a meeting of the
Board, the Directors present may adjourn the meeting from time to
time, without notice other than announcement at the meeting,
until a quorum shall be present.
7. THE COMMITTEES OF DIRECTORS
___________________________
7.01 The Board may, by resolution or resolutions adopted by
a majority of the whole Board, designate one or more committees.
Each committee shall consist of two or more of the Directors
which, to the extent provided in the resolution or resolutions,
shall have and may exercise the powers of the Board in the
management of the business and affairs of the company. Each
committee shall have such name and duties that may be determined
from time to time by resolution adopted by the Board.
7.02 The committees shall keep regular minutes of their
proceedings and report the same to the Board when required.
<PAGE> 10
8. NOTICES
_______
8.01 Whenever any notice required by statute or the charter
or these bylaws must be given to a Stockholder or a Director or
an officer, other than notices elsewhere herein provided for,
such notice may be given in writing and mailed to such person at
the address thereof appearing on the books of the company; and
such notice shall be deemed to be given at the time the same is
deposited in the United States mail. Any such notice to a
Director or Officer may be given by telephone or telegram in lieu
of mailing.
8.02 A waiver of the notice provided for in section 8.01,
signed either before or after the time stated in the notice by
the person entitled thereto, shall be deemed equivalent to giving
such notice.
9. ACTION BY STOCKHOLDERS AND DIRECTORS WITHOUT MEETING
____________________________________________________
9.01 Whenever the vote of Stockholders at a meeting thereof
is required or permitted to be taken in connection with any
corporate action, the meeting and vote of Stockholders may be
dispensed with if all the Stockholders who would have been
entitled to vote upon the action, if such meeting were held,
shall agree in writing to such corporate action being taken.
<PAGE> 11
9.02 Whenever the vote of Directors at a meeting thereof is
required or permitted to be taken in connection with any Company
action, the meeting and vote of Directors may be dispensed with
if all the Directors agree in writing to such Company action
being taken.
10. THE OFFICERS
____________
10.01 The Officers of the company shall be chosen by the
Board and they shall be a Chairman of the Board, a President, one
or more Vice Presidents, a Secretary, Treasurer, and such other
Officers as the Board and the organization of the Company may
require. The Chairman and President shall be chosen from among
the Directors.
10.02 The Board may appoint such officials of the company as
the Board may deem expedient or necessary.
10.03 The Board shall choose the Officers and appoint the
officials of the Company at the Board's first meeting after the
annual meeting of Stockholders.
10.04 The same person may hold two offices except those of
Chairman, President and Vice President.
10.05 The Board may at any time, by affirmative vote of a
majority of the Board, create and fill new offices, fill
<PAGE> 12
vacancies in existing offices, or vacate and discontinue offices
then existing.
10.06 The Officers and officials of the Company shall hold
their offices until their respective successors are chosen or
appointed.
11. THE CHAIRMAN OF THE BOARD AND THE PRESIDENT
___________________________________________
11.01 The Chairman of the Board shall be in general charge
of the business of the Company and shall have the duty to see
that all orders and resolutions of the Board are carried into
effect. He shall preside at all meetings of the Stockholders and
Directors and shall perform such other duties as the bylaws or
the Board of Directors shall prescribe.
11.02 The President shall have executive direction of the
affairs of the company subject to the Chairman of the Board and
the Board of Directors. In the absence or disability of the
Chairman of the Board, the President shall preside at meetings of
the Stockholders and Directors and exercise the powers and duties
of the Chairman of the Board.
11.03 The Chairman of the Board or the President shall
execute deeds, mortgages, deeds of trust, bonds, and other
instruments, except where required or permitted by law to be
otherwise executed and except where the execution thereof shall
<PAGE> 13
be expressly delegated by the Board to some other Officer or
Official of the Company.
12. THE VICE PRESIDENTS
___________________
12.01 In the absence of the Chairman of the Board and the
President, a Vice President or other Officer selected by the
Board shall perform the duties and exercise the powers of the
President. Each Vice President shall perform such other duties
as the Board or President shall prescribe.
13. THE SECRETARY AND ASSISTANT SECRETARIES
_______________________________________
13.01 The Secretary shall attend all meetings of the Board
and all meetings of the Stockholders, shall record the
proceedings of the meetings in a book kept for that purpose, and
shall perform like duties for Committees of Directors when
required. The Secretary shall perform such other duties as may
be prescribed by the Board or the President.
13.02 The Secretary shall have custody of the Seal of the
Company. The Secretary, an Assistant Secretary, the Treasurer or
an Assistant Treasurer shall have authority to affix the Seal to
any instrument requiring it and when so affixed, the Seal may be
attested by the signature of the Secretary, Assistant Secretary,
Treasurer, or Assistant Treasurer.
<PAGE> 14
13.03 The Assistant Secretaries, in the order determined by
the Board, shall, in the absence of the Secretary, perform the
duties and exercise the powers of the Secretary. Any Assistant
Secretary shall perform such other powers as the Board may
prescribe.
14. THE TREASURER AND ASSISTANT TREASURERS
______________________________________
14.01 The Treasurer shall have the custody of the Company's
funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Company.
He shall deposit all moneys and other valuable effects in the
name and to the credit of the Company in such depositories as may
be designated by the Board.
14.02 The Treasurer shall disburse the funds of the Company,
taking proper vouchers for such disbursements, and shall render
to the President and Directors, whenever they may require it,
accounts of all his transactions as Treasurer and of the
financial condition of the Company.
14.03 If required by the Board, the Treasurer shall give the
Company a bond, in such sum and with such surety as shall be
satisfactory to the Board, for the faithful performance of the
duties of his office and for the restoration to the Company, in
case of his death, resignation, retirement, or removal from
<PAGE> 15
Office, of all books, papers, vouchers, money, and other property
of whatever kind in his possession or under his control and
belonging to the Company.
14.04 The Assistant Treasurers, in the order determined by
the Board, shall, in the absence of the Treasurer, perform the
duties and exercise the powers of the Treasurer. Any Assistant
Treasurer shall perform such other duties and have such other
powers as the Board may prescribe.
15. INDEMNIFICATION
_______________
15.01 Each person who at any time is, or shall have been a
director or officer of the Corporation, or serves or has served
as a director, officer, fiduciary or other representative of
another company, partnership, joint venture, trust, association
or other enterprise (including any employee benefit plan), where
such service was specifically requested by the Corporation in
accordance with Paragraph (15.04) below, or the established
guidelines for participation in outside positions (such service
hereinafter being referred to as "Outside Service"), and is
threatened to be or is made a party to any threatened, pending,
or completed claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative ("Proceeding"), by
reason of the fact that he is, or was, a director or officer of
<PAGE> 16
the Corporation or a director, officer, fiduciary or other
representative of such other enterprise, shall be indemnified
against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement ("Loss") actually and reasonably
incurred by him in connection with any such Proceeding to the
full extent permitted under the General Corporation Law of the
State of Delaware, as the same exists or may hereafter be
amended, (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide
broader indemnification rights than said Law permitted the
Corporation to provide prior to such amendment). The Corporation
shall indemnify any person seeking indemnity in connection with
any Proceeding (or part thereof) initiated by such person only if
such Proceeding (or part thereof) initiated by such person was
authorized by the Board of Directors of the Corporation. With
respect to any Loss arising from Outside Service, the Corporation
shall provide such indemnification only if and to the extent that
(i) such other company, partnership, joint venture, trust,
association or enterprise is not legally permitted or financially
able to provide such indemnification, and (ii) such Loss is not
paid pursuant to any insurance policy other than any insurance
policy maintained by the Corporation.
<PAGE> 17
15.02 The right to be indemnified pursuant hereto shall
include the right to be paid by the Corporation for expenses,
including attorneys' fees, incurred in defending any such
Proceeding in advance of its final disposition; provided,
however, that the payment of such expenses in advance of the
final disposition of such Proceeding shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of
such director, officer, fiduciary or other representative, in
which such director, officer, fiduciary or other representative
agrees to repay all amounts so advanced if it should be
determined ultimately that such director, officer, fiduciary or
other representative is not entitled to be indemnified under
applicable law.
15.03 The right to be indemnified or to the reimbursement or
advancement of expenses pursuant hereto shall in no way be
exclusive of any other rights of indemnification or advancement
to which any such director or officer, fiduciary or other
representative may be entitled, under any by law, agreement, vote
of stockholders or disinterested directors or otherwise both as
to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer,
<PAGE> 18
fiduciary or other representative and shall inure to the benefit
of the heirs, executors and administrators of such person.
15.04 Any person who is serving or has served as a director,
officer or fiduciary of (i) another corporation of which a
majority of the shares entitled to vote in the election of its
directors is held by the Corporation at the time of such service,
or (ii) any employee benefit plan of the Corporation or of any
corporation referred to in Paragraph 15.04 (i), shall be deemed
to be doing or have done so at the request of the Corporation.
16. CERTIFICATES OF STOCK
_____________________
16.01 The shares of the Company shall be represented by
numbered certificates, and they shall be entered on the books of
the Company as they are issued. Each certificate shall exhibit
the holder's name and the number of shares and shall be signed by
the Chairman of the Board, the President or a Vice President and
the Secretary, an Assistant Secretary, the Treasurer, or
Assistant Treasurer. The Seal of the Company or a facsimile
thereof may be affixed to each certificate.
16.02 The signatures of the Officers of the Company upon a
certificate of stock may be facsimiles.
<PAGE> 19
16.03 In the event an Officer who has signed or whose
facsimile signature has been placed upon a certificate shall have
ceased to be such Officer before such certificate shall have been
issued, the certificate may be issued with the same effect as if
he were such officer at the date of the certificate's issue.
17. DIVIDENDS
_________
17.01 Dividends upon the capital stock of the Company,
subject to the provisions of the charter, may be declared by the
Board at any 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 charter and the applicable laws.
18. FISCAL YEAR
___________
18.01 The fiscal year shall be the calendar year.
19. SEAL
____
19.01 The Corporate Seal shall have inscribed thereon the
name of the Company and such other words and symbols as the Board
may by resolution determine. The seal may be used by causing it
or a facsimile thereof to be impressed, affixed, or reproduced.
<PAGE> 20
20. EMERGENCY BYLAWS
________________
20.02 The Board may adopt emergency bylaws, subject to
repeal or change by action of the Stockholders, which shall be
operative during any emergency resulting from an attack on the
United States of America or any nuclear or atomic disaster. The
emergency bylaws may make any provision that may be practical or
necessary for the circumstances of the emergency and in
conformity with the laws of the State of Delaware.
20.02 To the extent not inconsistent with the emergency
bylaws so adopted, these bylaws shall remain in effect during any
such emergency and upon its termination the emergency bylaws
shall cease to be operative.
21. AMENDMENTS
__________
21.01 These bylaws may be amended by the Stockholders or by
the Board. Any amendment to these bylaws made by the Board may
be altered or repealed by the Stockholders.
