<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report (date of earliest event reported):
January 27, 1995
MOBILE GAS SERVICE CORPORATION
(exact name of registrant as specified in its charter)
Commission File No.: 0-234
Alabama 63-0142930
(State of Incorporation) (I.R.S. Employer Identification No.)
2828 Dauphin Street
Mobile, Alabama 36606
(Address of Principal executive offices)
Registrant's Telephone Number
Including Area Code: (205) 476-2720
Page 1 of 33
Exhibit Index at page 4.
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Item 5. Other Events.
(a) On January 27, 1995, Walter L. Hovell retired as President and
Chief Executive Officer of Mobile Gas Service Corporation (the "Company"). The
Board of Directors of the Company elected John S. Davis as President and Chief
Executive Officer. Mr. Davis was formerly Executive Vice President and Chief
Operating Officer of the Company. A copy of the Company's press release
announcing the election of Mr. Davis and the retirement of Mr. Hovell is
attached hereto as Exhibit 99 and made a part hereof.
(b) In connection with the retirement of Mr. Hovell, the Company (i)
entered into an Amendment to Amended and Restated Supplemental Deferred
Compensation Agreement ("Agreement") dated January 27, 1995 with Mr. Hovell, a
copy of which is attached hereto as Exhibit 10(k)-2 and made a part hereof, and
on such date credited $170,000 to Mr. Hovell's account under the Agreement, and
(ii) entered into a Consulting Agreement with Mr. Hovell, a copy of which is
attached hereto as Exhibit 10(y) and made a part hereof.
(c) On January 27, 1995, the Board of Directors of the Company
(i)adopted new Bylaws of the Company, a copy of which is attached hereto as
Exhibit 3(b) and made a part hereof; and (ii) adopted the Mobile Gas Service
Corporation Non-Employee Directors Deferred Fee Plan, a copy of which is
attached hereto as Exhibit 10(z) and made a part hereof.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a), (b) Not applicable.
(c) Exhibits.
<TABLE>
<S> <C>
Exhibit 3(b) Bylaws of the Company adopted January 27, 1995
Exhibit 10(k)-2 Amendment to Amended and Restated Supplemental
Deferred Compensation Agreement dated
January 27, 1995 between the Company and
Walter L. Hovell
Exhibit 10(y) Consulting Agreement dated January 27, 1995
between the Company and Walter L. Hovell
Exhibit 10(z) Mobile Gas Service Corporation Non-Employee
Directors Deferred Fee Plan
Exhibit 99 Press release dated January 27, 1995
</TABLE>
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<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant duly caused this Report to be signed on its behalf by the
undersigned hereto duly authorized.
MOBILE GAS SERVICE CORPORATION
By /s/ G. Edgar Downing, Jr.
G. Edgar Downing, Jr.
Its Secretary
February 9, 1995
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Page
Number
------
<S> <C> <C>
Exhibit 3(b) Bylaws of the Company adopted January 5
27, 1995
Exhibit 10(k)-2 Amendment to Amended and Restated 15
Supplemental Deferred Compensation
Agreement dated January 27, 1995
between the Company and Walter L. Hovell
Exhibit 10(y) Consulting Agreement dated January 27, 17
1995 between the Company and
Walter L. Hovell
Exhibit 10(z) Mobile Gas Service Corporation Non- 21
Employee Directors Deferred Fee Plan
Exhibit 99 Press release dated January 27, 1995 33
</TABLE>
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<PAGE> 1
EXHIBIT 3(b)
BYLAWS
MOBILE GAS SERVICE CORPORATION
ARTICLE I
STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The Corporation shall hold annually a
regular meeting of its Stockholders for the election of Directors and for the
transaction of General business at the principal office of the Corporation in
Mobile, Alabama, except in cases in which the calls therefor designate some
other place either within or without the State of Alabama, at ten o'clock A.M.
on the last Friday in January in each year, if not a legal holiday, and if a
legal holiday, then on the first day following which is not a legal holiday.
Such annual meetings shall be general meetings, that is to say, open for the
transaction of any business within the powers of the Corporation without
special notice of such business, except in cases in which special notice is
required by law, by the Restated Articles of Incorporation or by these Bylaws.
SECTION 2. SPECIAL MEETINGS. At any time in the interval between
annual meetings, meetings of the Stockholders may be called by the President
and Chief Executive Officer, the Chairman of the Board, the Vice Chairman of
the Board, or by a majority of the Board of Directors by vote at a special
meeting or in writing with or without a meeting. Special meetings of the
Stockholders shall be held at the principal office of the Corporation in
Mobile, Alabama, except in cases in which the calls therefor designate some
other place either within or without the State of Alabama.
SECTION 3. NOTICE OF MEETINGS. Written or printed notice of every
annual meeting or special meeting of the Stockholders shall be given to each
Stockholder entitled to vote at such meeting, by leaving the same with him, or
by mailing it, postage prepaid, and addressed to him at his address as it
appears upon the books of the Corporation, at least ten days before such
meeting, except as otherwise provided by law. Notice of every special meeting
shall state the place, day and hour of such meeting and the general nature of
the business proposed to be transacted thereat. Failure to give notice of any
annual meeting or any irregularity in such notice, shall not affect the
validity of such annual meeting or of any proceedings at such meeting (other
than proceedings of which special notice is required by law, by the Restated
Articles of Incorporation or by the Bylaws). It shall not be requisite to the
validity of any meeting of Stockholders that notice thereof 1whether prescribed
by law, by the Restated Articles of Incorporation or by these Bylaws, shall
have been given to any Stockholder who attends in person or by proxy, or to any
Stockholder who in writing executed and filed with the records of the meeting
either before or after the holding thereof, waives such notice. Except as
otherwise provided by law, no notice other than by verbal announcement need by
given of any adjourned meetings of Stockholders.
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<PAGE> 2
SECTION 4. QUORUM. At all meetings of Stockholders, the Stockholders
entitled to cast a majority in number of votes, present in person or by proxy,
shall constitute a quorum for the transaction of business; but in the absence
of a quorum the Stockholders present in person or by proxy by majority vote may
adjourn the meeting from time to time without notice other than by verbal
announcement at the meeting, until a quorum shall attend. At any such
adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the original meeting.
SECTION 5. PROXY AND VOTING. The voting power of the capital stock
of the Corporation shall be as provided in the Restated Articles of
Incorporation. Stockholders of record entitled to vote may vote at any meeting
either in person or by signed proxy, and dated, but need not be sealed,
witnessed or acknowledged, which shall be filed with the Secretary before being
voted. Such proxies shall entitle the holders thereof to vote at any
adjournment of such meeting but shall not be valid after the final adjournment
thereof. Each Stockholder shall be entitled to one vote for each share of
stock held by him.
SECTION 6. LIST OF STOCKHOLDERS. A complete list of the Stockholders
entitled to vote at the ensuing meeting arranged in alphabetical order with the
mailing address of each according to the records of the Corporation and the
number of voting shares held by each shall be prepared, certified and filed
with the Secretary within the time required by law.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. ELECTION AND POWERS. The business and property of
the Corporation shall be conducted and managed by its Board of Directors, which
may exercise all of the powers of the Corporation except such as are by law, by
the Restated Articles of Incorporation or by these Bylaws, conferred upon or
reserved to the Stockholders. The members of the Board of Directors shall be
elected by a majority of the votes cast at a meeting of Stockholders, except as
may be otherwise provided in the Restated Articles of Incorporation. Each
Director shall hold office until the annual meeting held next after his
election and until his successor shall have been duly chosen and qualified, or
until he shall have resigned or been removed in the manner provided in Section
6 of this Article II. The Board of Directors shall hereafter be composed of
eleven (11) members. Other than persons in office as directors on such date,
after January 27, 1995 no person who would be less than twenty-one (21) years
of age or more than seventy-two (72) years of age on the date of taking office
shall be elected as director.
SECTION 2. CHAIRMAN AND VICE CHAIRMAN OF THE BOARD OF DIRECTORS. The
Board of Directors may, in its discretion, elect from its members a Chairman of
the Board of Directors. Such Chairman, when present, shall preside at all
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meetings of the Board of Directors, and in the absence of the President and
Chief Executive Officer he shall call to order and preside at meetings of the
Stockholders of the Corporation, and shall have such other powers and duties as
the Board of Directors may from time to time prescribe. The Board of Directors
may also, in its discretion, elect from its members a Vice Chairman of the
Board of Directors. Such Vice Chairman shall, in the absence of the Chairman
of the Board of Directors, have the powers of the Chairman of the Board of
Directors and shall have such other powers and duties as the Board of Directors
may from time to time prescribe.
SECTION 3. MEETINGS OF DIRECTORS. Regular meetings of the Board of
Directors shall be held at such places within or without the State of Alabama
and at such times as the Board by vote may determine from time to time and if
so determined, no notice thereof need be given. Special Meetings of the Board
of Directors may be held at any time or place, either within or without the
State of Alabama, whenever called by the Chairman of the Board of Directors,
the Vice Chairman of the Board of Directors, the President and Chief Executive
Officer, or by a majority of the Directors, notice thereof being given to each
Director by the Secretary or an Assistant Secretary or officer calling the
meeting, or at any time without formal notice provided all the Directors are
present or those not present shall at any time waive or have waived notice
thereof. Notice of Special Meetings, stating the time and place thereof, shall
be given by mailing the same to each Director at his residence or business
address at least two days before the meeting or by delivering the same to him
personally or by telephoning or by facsimile transmission of the same to him at
his residence or business address not later than the day before the day on
which the meeting is to be held, unless, in case of exigency, the Chairman of
the Board of Directors or the President and Chief Executive Officer shall
prescribe a shorter notice to be given personally or by telephoning or by
facsimile transmission to each Director at his residence or business address.
Such Special Meetings shall be held at such times and places as the notice
thereof shall specify. No notice of adjourned meetings of the Board of
Directors need be given. All regular and special meetings of the Board of
Directors shall be general meetings, that is to say, open for the transaction
of any business within the powers of the Corporation without special notice of
such business, except in cases in which special notice is required by law, by
the Restated Articles of Incorporation, by these Bylaws or by the call of such
meeting.
SECTION 4. QUORUM. At all meetings of the Board of Directors, a
majority of the total number of the Directors in office (but not less than a
third of the number fixed by these Bylaws) shall constitute a quorum for the
transaction of business. Except in cases in which it is by law, by the
Restated Articles of Incorporation, or by the Bylaws otherwise provided, a
majority of such quorum shall decide any questions that may come before the
meeting. In the absence of a quorum, the Directors present by majority vote
may adjourn the meeting from time to time without notice other than by verbal
announcement at the meeting until a quorum shall attend. At any such adjourned
meeting at which a quorum shall be present, any business may be transacted
which might have been transacted at the meeting as
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<PAGE> 4
originally notified, and at any such adjourned meeting at which a quorum shall
not be present, business may be transacted to the extent allowed by law.
SECTION 5. VACANCIES. Vacancies occurring in the Board of Directors,
through death, resignation, or any cause other than an increase in the number
of Directors or removal by the Stockholders, may be filled by the vote of a
majority of the remaining Directors provided such majority is not less than a
quorum. Otherwise, such vacancy shall be filled at a Stockholders' meeting.
SECTION 6. COMPENSATION. Directors who are not employees of the
Corporation or its subsidiaries shall receive such compensation as members of
the Board of Directors or committees thereof as may be fixed from time to time
by resolution of the Board of Directors.
SECTION 7. REMOVAL. At any meeting of the Stockholders called for the
purpose, any Director may by vote of the Stockholders entitled to cast a
majority in number of all the votes, be removed from office, with or without
cause, and another be appointed in the place of the person so removed, to serve
for the remainder of his term.
ARTICLE III
COMMITTEES
SECTION 1. EXECUTIVE COMMITTEE. The Board of Directors, by
resolution adopted by a majority of the whole Board of Directors, may designate
an Executive Committee of three or more Directors, one of whom shall be the
President and Chief Executive Officer of the Corporation, one of whom shall be
the Chairman of the Board of Directors, and one of whom shall be the Vice
Chairman of the Board of Directors. The President and Chief Executive Officer
shall be ex officio Chairman of the Committee. Except as otherwise provided by
law, during the intervals between the meetings of the Board of Directors, the
Executive Committee shall have and may exercise all of the powers of the Board
of Directors in the management of the business and affairs of the Corporation.
All action by the Executive Committee shall be reported to the Board of
Directors at its meeting next succeeding such action. Vacancies in the
Executive Committee shall be filled by the Board of Directors.
SECTION 2. MEETINGS OF THE EXECUTIVE COMMITTEE. The Executive
Committee may fix its own rules of procedure and shall meet at the call of the
Chairman or any two (2) members of the Committee or by resolution of the Board
of Directors. A majority of such Committee shall be necessary to constitute a
quorum and such majority shall decide any questions that may come before the
meeting.
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<PAGE> 5
SECTION 3. OTHER COMMITTEES. The Board of Directors may by
resolution designate such other standing or special committees as it deems
desirable and discontinue the same at pleasure. Each such committee shall have
such powers and perform such duties, not inconsistent with the law, as may be
assigned to it by the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. EXECUTIVE OFFICERS. The Executive officers of the
Corporation shall be a President and Chief Executive Officer, one or more vice
presidents, a Secretary, a Treasurer, and such other Executive Officers as may
be elected pursuant to Section 6 of this Article IV. The officers shall be
elected annually by the Board of Directors at its first meeting following the
annual meeting of Stockholders, and each such officer shall hold office until
the corresponding meeting in the next year and until his successor shall have
been duly chosen and qualified, or until he shall have resigned or have been
removed, in any manner provided in Section 10 of this Article IV. Any vacancy
in any of the above offices shall be filled for the unexpired portion of the
term by the Board of Directors, at any regular or special meeting.
SECTION 2. PRESIDENT AND CHIEF EXECUTIVE OFFICER. The President and
Chief Executive Officer shall be the chief executive officer of the
Corporation. He shall, when present, preside at all meetings of the
Stockholders; he shall have general charge and supervision of the business of
the Corporation; he may sign with the Treasurer or an Assistant Treasurer, or
with the Secretary or an Assistant Secretary, certificates of stock of the
Corporation; he may sign and execute in the name of the Corporation all
authorized deeds, mortgages, bonds, contracts or other instruments; and, in
general, the President and Chief Executive Officer shall perform all duties
incident to the office of a president and chief executive officer of a
corporation, and such other duties as, from time to time, may be assigned to
him by the Board of Directors.
SECTION 3. VICE PRESIDENTS. Each Vice President shall have the power
to sign all certificates of stock, bonds, deeds and contracts of the
Corporation. Each Vice President shall perform such other duties and have such
powers as the Board of Directors shall designate from time to time.
SECTION 4. SECRETARY. The Secretary shall record the proceedings of
the meetings of the Stockholders, of the Board of Directors, and if so
appointed, of the Executive Committee, in books provided for that purpose; he
shall see that all notices are duly given in accordance with the provisions of
these Bylaws, or as required by law; he shall be custodian of, and responsible
for authenticating, the records and shall be custodian of the corporate seal or
seals of the Corporation; he shall see that the corporate seal is affixed to
all documents, the execution of which, on behalf of the Corporation, under its
seal, is duly
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<PAGE> 6
authorized, and when so affixed may attest the same; he may sign, with the
President and Chief Executive Officer or Vice President, certificates of stock
of the Corporation; and in general, he shall perform all duties incident to the
office of a secretary of a corporation, and such other duties as from time to
time may be assigned to him by the Board of Directors.
SECTION 5. TREASURER. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit or cause to be deposited, in the name of the
Corporation, all monies or other valuable effects in such banks, trust
companies or other depositories as shall, from time to time, be selected by the
Board of Directors; he shall render to the President and Chief Executive
Officer and to the Board of Directors, whenever requested, an account of the
financial condition of the Corporation; he may sign, with the President and
Chief Executive Officer or a Vice President, certificates of stock of the
Corporation; and, in general, he shall perform all the duties incident to the
office of a treasurer of a corporation, and such other duties as may be
assigned to him by the Board of Directors.
SECTION 6. ADDITIONAL EXECUTIVE OFFICERS. The Board of Directors
may, in its discretion, from time to time elect such additional executive
officers as it may deem appropriate, including, but not limited to, one or more
Executive Vice Presidents, and one or more Senior Vice Presidents. Any
additional executive officers elected by the Board of Directors shall have such
powers and duties as may be assigned by the Board of Directors.
SECTION 7. OTHER OFFICERS. The Board of Directors may elect one or
more Assistant officers or other officers. Each Assistant officer or other
officer, if any, shall hold office for such period and shall have such
authority and perform such duties as the Board of Directors may prescribe.
SECTION 8. PRESIDENT AND CHIEF EXECUTIVE OFFICER NOT TO HOLD CERTAIN
OFFICES. The President and Chief Executive Officer shall not hold the office
of Secretary or Treasurer of the Corporation.
SECTION 9. COMPENSATION. The Board of Directors shall have power to
fix the compensation of all officers of the Corporation.
SECTION 10. REMOVAL. Any officer of the Corporation may be removed,
with or without cause, by vote of the Board of Directors or by an Executive
Officer upon whom such power of removal may have been conferred by the Board of
Directors.
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<PAGE> 7
ARTICLE V
STOCK
SECTION 1. CERTIFICATES. Each Stockholder shall be entitled to a
certificate or certificates certifying the number and kind of shares owned by
him, signed (either manually or in facsimile) in the name of and for and on
behalf of the Corporation by the President and Chief Executive Officer or a
Vice President and the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, and sealed with the seal of the Corporation or its
facsimile. In case an officer or officers who shall have signed any such
certificate or certificates shall cease to be such officer or officers whether
because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be issued and delivered as though the person or
persons who signed such certificate or certificates had not ceased to be such
officer or officers. Stock certificates shall be in such form, not
inconsistent with law or with the Restated Articles of Incorporation, as shall
be approved by the Board of Directors.
SECTION 2. TRANSFER OF SHARES. The Board of Directors shall have
power and authority to make all such rules and regulations as it may deem
expedient concerning the issue, transfer and registration of certificates of
stock.
SECTION 3. TRANSFER AGENTS AND REGISTRARS. The Corporation may have
one or more Transfer Agents and one or more Registrars of its stock, whose
respective duties the Board of Directors may, from time to time, define. No
certificate of stock shall be valid until countersigned by a transfer agent, if
the Corporation has a Transfer Agent, or until registered by a Registrar, if
the Corporation has a Registrar. The duties of Transfer Agent and Registrar
may be combined.
SECTION 4. RECORD DATES. The Board of Directors shall have the
authority to fix in advance a date, not exceeding seventy (70) days preceding
(1) the date of any meeting of stockholders, (2) the date for the payment of
any dividend, (3) the date for the allotment of rights, or (4) the date when
any change or conversion of exchange of capital stock shall go into effect, as
a record date for the determination of the Stockholders entitled, to notice of,
or to vote at, any such meeting or entitled to receive payment of any such
dividend or to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital stock, and in
such case such Stockholders and only such Stockholders, as shall be
Stockholders of record on the date so fixed, shall be entitled to such notice
of, and to vote at such meeting, or to receive payment of such dividend, or to
receive such allotment of rights, or to exercise such rights, as the case may
be notwithstanding any transfer of any stock on the books of the Corporation
after any such record date fixed as aforesaid.
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<PAGE> 8
SECTION 5. LOSS OF CERTIFICATES. In case of the loss, mutilation or
destruction of a certificate of stock, a duplicate certificate may be issued
upon such terms as the Board of Directors shall prescribe.
ARTICLE VI
DIVIDENDS AND FINANCE
SECTION 1. DIVIDENDS. Subject to the provisions of the Restated
Articles of Incorporation, the Board of Directors may, in its discretion,
declare what, if any, dividends shall be paid upon the stock of the
Corporation, or upon any class of such stock. Except as otherwise provided by
the Restated Articles of Incorporation, dividends shall be payable upon such
dates as the Board of Directors may designate. 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 fund 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 interests of the Corporation, and the directors may abolish any such
reserve in the manner in which it was created.
SECTION 2. FISCAL YEAR. The fiscal year of the Corporation shall be
October 1 through September 30, unless otherwise provided by the Board of
Directors.
ARTICLE VII
SUNDRY PROVISIONS
SECTION 1. SEAL. The Corporate Seal of the Corporation shall bear
the name of the Corporation and the words "CORPORATE SEAL - 1933 - ALABAMA".
If deemed advisable by the Board of Directors, a duplicate seal or duplicate
seals may be provided and kept for the necessary purposes of the Corporation.
SECTION 2. BOOKS AND RECORDS. The Board of Directors may determine
from time to time whether and if allowed, when and under what conditions and
regulations, the books and records of the Corporation, or any of them, shall be
open to the inspection of Stockholders, and the rights of Stockholders in this
respect are and shall be limited accordingly, except as otherwise provided by
law.
SECTION 3. BONDS. The Board of Directors may require any officer,
agent or employee of the Corporation to give a bond to the Corporation,
conditioned upon the faithful discharge of his duties, with one or more
sureties and in such amount as may be satisfactory to the Board of Directors.
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<PAGE> 9
SECTION 4. VOTING UPON STOCK IN OTHER CORPORATIONS. Any stock in
other corporations, which may from time to time be held by the Corporation, may
be represented and voted at any meeting of Stockholders of such other
corporations by the President and Chief Executive Officer or a Vice President
of the Corporation or by proxy executed in the name of the Corporation by its
President and Chief Executive Officer or a Vice President.
SECTION 5. AMENDMENTS. These Bylaws may be altered, amended or
repealed, or new Bylaws may be adopted, by the Board of Directors, provided
that the Board of Directors may not alter, amend or repeal any Bylaw
establishing what constitutes a quorum at Stockholders' meetings.
SECTION 6. PRONOUNS. The masculine pronoun, as used in the Bylaws,
means the masculine and feminine wherever applicable.
ARTICLE VIII
INDEMNIFICATION AND RELATED MATTERS
Each person who is or was a director or officer of the Corporation and
who was or is a party or was or is threatened to be made a party to any
threatened, pending or completed claim, action, suit or proceeding, whether
civil, criminal, administrative or investigative, including appeals, by reason
of the fact that he 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, agent or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, shall be indemnified by the
Corporation as a matter of right against any and all expenses (including
attorneys' fees) actually and reasonably incurred by him and against any and
all claims, judgments , fines, penalties, liabilities and amounts paid in
settlement actually incurred by him in defense of such claim, action, suit or
proceeding, including appeals, to the full extent permitted by applicable law.
The indemnification provided by this Section shall inure to the benefit of the
heirs, executors and administrators of such person.
Expenses (including attorneys' fees) incurred by a director or officer
of the Corporation with respect to the defense of any such claim, action, suit
or proceeding may be advanced by the Corporation prior to the final disposition
of such claim, action suit or proceeding, as authorized by the Board of
Directors in the specific case, upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if and to the extent it shall
be ultimately determined that he is not entitled to be indemnified by the
Corporation as authorized under this Article or applicable law; provided,
however, that the advancement of such expenses shall not be deemed to be
indemnification unless and until it shall ultimately be determined that such
person is entitled to be indemnified by the Corporation.
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<PAGE> 10
The Corporation shall make such reports to its Stockholders regarding
indemnification or advancement of expenses as may be required by law.
The Corporation may purchase and maintain insurance at the expense of
the Corporation on behalf of any person who is or was a director, officer,
employee or agent of the Corporation or any person who is or was serving at the
request of the Corporation as a director (or the equivalent), officer,
employee, agent or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against any liability or
expense (including attorneys' fees) asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability or
expense under this Section or otherwise.
The foregoing rights shall not be exclusive of any other rights to
which such director or officer may otherwise be entitled and shall be available
whether or not the director or officer continues to be a director or officer at
the time of incurring any such expenses and liabilities.
If any word, clause or provision of the Bylaws or any indemnification
made under Article VIII hereof shall for any reason be determined to be
invalid, the provisions of the Bylaws shall not otherwise be affected thereby
but shall remain in full force and effect.
Adopted January 27, 1995
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<PAGE> 1
EXHIBIT 10(k)-(2)
AMENDMENT TO AMENDED AND RESTATED
SUPPLEMENTAL DEFERRED COMPENSATION AGREEMENT
THIS AMENDMENT to the AMENDED AND RESTATED SUPPLEMENTAL DEFERRED
COMPENSATION AGREEMENT (the "Agreement"), is made and entered into the 27th day
of January, 1995, between MOBILE GAS SERVICE CORPORATION, an Alabama
corporation (hereinafter referred to as the "CORPORATION"), and WALTER L.
HOVELL (hereinafter referred to as the "EMPLOYEE"),
W I T N E S S E T H :
WHEREAS, by agreement made and entered into on March 3, 1978,
CORPORATION and EMPLOYEE initially entered into an agreement providing for the
deferral of compensation in order to assist the EMPLOYEE in providing for the
contingencies of death and old age dependency; and
WHEREAS, on December 11, 1992, CORPORATION and EMPLOYEE amended and
restated the Agreement in its entirety as of December 11, 1992; and
WHEREAS, it is the desire of the parties hereto to further amend the
Agreement in order to revise the determination of the Deferred Amount.
NOW, THEREFORE, in consideration of the premises and in consideration
of the terms and conditions hereinafter set forth, the parties hereto do hereby
agree as follows:
1. Section 2 of the Agreement is hereby amended so that
said Section 2 shall read in its entirety as follows:
2. DEFERRED AMOUNT. As of the effective date of this
Agreement, the CORPORATION will commence to compensate the EMPLOYEE
not only in the form of current compensation for services
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rendered, but also, as provided below, in the form of deferred
compensation, for the period of time during which the EMPLOYEE is
employed by the CORPORATION, which shall be credited to the Employee
Account annually as a Deferred Amount. Beginning with the effective
date of this agreement and continuing with each anniversary thereof
during which this Agreement is in effect, the Deferred Amount portion
of the total compensation of the EMPLOYEE will be an amount equal to
the sum of (i) the amount that would have been paid to the EMPLOYEE
for his service as a member of the CORPORATION's Board of Directors
(including payments for service on one or more committees of the Board
of Directors) if he were not an employee of the CORPORATION, and (ii)
such additional amount as the Board of Directors shall determine, in
its sole and absolute discretion, by resolution duly adopted by the
Board of Directors. There is no guarantee that a Deferred Amount will
be awarded as of any anniversary date of this Agreement. Any such
Deferred Amount thus awarded, if any, will be credited to the Employee
Account in accordance with Paragraph 1, above.
3. As hereby amended, the Agreement remains in full
force and effect.
IN WITNESS WHEREOF, CORPORATION has caused this instrument to be
executed by its officer thereunder duly authorized on the day and year
indicated above, and EMPLOYEE has hereunto set his hand and seal on the day and
year indicated above.
MOBILE GAS SERVICE CORPORATION
By: /s/ John S. Davis
JOHN S. DAVIS
Its Executive Vice President
ATTEST:
/s/ G. Edgar Downing, Jr.
Its Secretary
EMPLOYEE:
/s/ Walter L. Hovell
WALTER L. HOVELL
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<PAGE> 1
Exhibit 10(Y)
CONSULTING AGREEMENT
THIS AGREEMENT, made and entered into the 27th day of January, 1995,
by and between MOBILE GAS SERVICE CORPORATION (hereinafter referred to as
"Mobile Gas"), and WALTER L. HOVELL (hereinafter referred to as "Consultant").
WHEREAS, Consultant will retire effective at the close of business on
January 31, 1995 from his employment as President and Chief Executive Officer
of Mobile Gas;
WHEREAS, during his long tenure as an employee of Mobile Gas,
Consultant has gained invaluable knowledge and experience regarding the
business operations of Mobile Gas and it subsidiaries; and
WHEREAS, Mobile Gas desires to retain Consultant so that his services
will be available to Mobile Gas, all as hereinafter more specifically set
forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, it is hereby agreed as follows:
1. TERM.
a. The term of this Agreement shall commence on February
1, 1995, and shall end on January 31, 1999, unless sooner terminated in
accordance with the provisions of Section 1(b) hereof.
b. This Agreement shall terminate upon the death or
material disability of Consultant. The Board of Directors of Mobile Gas may
terminate this Agreement in its
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<PAGE> 2
sole discretion, without further obligation, in the event of a material breach
of this Agreement by Consultant.
2. CONSULTING DUTIES.
a. Consultant will provide such consulting services as
may be requested of him by the Board of Directors of Mobile Gas, or by the
President and Chief Executive Officer of Mobile Gas.
b. In providing services under this Agreement,
Consultant will be acting as an independent contractor and not as an employee
of Mobile Gas or any of its subsidiaries. Consultant shall have no power to
bind Mobile Gas or any of its subsidiaries or to commit them to any policy
position, contract or other course of action. Subject to the provisions of
Section 4, consultant is free to render services to such other business
entities as he chooses.
3. COMPENSATION.
a. During the term of this Agreement, Consultant shall
be paid $1,500 per month, all payments will be made in arrears on the last day
of each month commencing February 28, 1995.
b. Fees and other compensation received by Consultant
hereunder shall not be deemed to be "compensation" or "salary" for purposes of
any Mobile Gas employee benefit plan or for any other purpose. Amounts paid
hereunder shall not be subject to federal, state or local income or employment
tax withholding and will be reported
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<PAGE> 3
by Mobile Gas on Internal Revenue Form 1099. Consultant will be responsible
for reporting this income and paying all applicable income and self-employment
taxes relating thereto.
c. Consultant will be entitled to reimbursement for all
ordinary, necessary and reasonable expenses incurred by him in connection with
the performance of consulting services requested of him by the Board of
Directors of Mobile Gas or by the President and Chief Executive Officer of
Mobile Gas, subject to Consultant's providing such expense reporting as is
normally required by Mobile Gas for such reimbursements.
4. NON-COMPETITION. During the term hereof, the Consultant will
not become interested (including without limitation as an individual, partner,
shareholder, officer, employee, director, principal, agent or consultant) in
any business which conducts activities in the market area of the Company or any
of its subsidiaries similar to the business of the Company or any of its
subsidiaries.
5. MISCELLANEOUS.
a. This Agreement constitutes the entire understanding
and agreement of the parties and supersedes all prior negotiations,
understandings and agreement, whether oral or written, with respect to the
subject matter hereof.
b. This Agreement shall be governed by and construed
according to the laws of the State of Alabama.
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<PAGE> 4
IN WITNESS WHEREOF, Mobile Gas has caused this instrument to be
executed by its officer thereunder duly authorized on the day and year
indicated above, and Consultant has hereunto set his hand and seal on the day
and year indicated above.
MOBILE GAS SERVICE CORPORATION
By: /s/John S. Davis
Its: President and CEO
CONSULTANT:
/s/ Walter L. Hovell
WALTER L. HOVELL
Page 20 of 33
<PAGE> 1
Exhibit 10(z)
MOBILE GAS SERVICE CORPORATION
NON-EMPLOYEE DIRECTORS DEFERRED FEE PLAN
1. Establishment of the Plan
The Mobile Gas Service Corporation Non-Employee Directors Deferred Fee
Plan ("Plan") is hereby adopted as of January 27th, 1995 by the Board of
Directors of Mobile Gas Service Corporation (the "Company"), to provide a
method for attracting and retaining qualified non-employee directors for the
Company, and to encourage them to devote their best efforts to the business of
the Company, thereby advancing the interests of the Company and its
stockholders.
2. Administration of the Plan
The Plan shall be administered by the Executive Committee or such
other Committee (the "Committee") as may be from time to time appointed by the
Board of Directors of the Company (the "Board"). The Committee is authorized
to interpret the Plan and may from time to time adopt such rules and
regulations, consistent with the provisions of the Plan, as it may deem
advisable to carry out the Plan. The Plan shall be interpreted in view of the
intention that the acquisition of shares of phantom stock through the Plan is
intended to qualify as an exempt transaction under Rule 16b-3 under the
Securities Exchange Act of 1934 (the "Exchange Act"). All decisions made by
the
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<PAGE> 2
Committee shall be final. All expenses incurred in connection with the
administration of the Plan shall be borne by the Company.
3. Participation in the Plan
(a) Participation. Each director of the Company who is not an
employee of the Company or any of its subsidiaries may become a participant in
the Plan ("Participant").
(b) Deferral of Director's Fees. A Participant may elect to defer
director's fees (whether quarterly, per-meeting, special or otherwise) to be
paid to such Participant for services as a member of the Board by filing with
the Committee an election to defer receipt of all of such fees. A Participant
may elect to have all of such deferred fees credited to his or her Plan
Account, as described in Section 4(a), in either of: (i) Phantom Stock as
described in Section 5, or (ii) cash as described in Section 6.
(c) Time and Manner of Making Elections. Any deferral election
which may be made by a Participant under the Plan shall be made with respect to
a period between successive annual meetings of the stockholders of the Company
(a "Service Year") and must be made not later than thirty days after an annual
meeting of stockholders of the Company. All elections shall be made in the
manner and form prescribed by the Committee, and shall become effective on the
first day of the first fiscal quarter following such election.
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<PAGE> 3
(d) Nature of Elections. A Participant's election to defer
receipt of all of his or her director fees shall continue in force and effect
for future Service Years unless modified or revoked by such Participant. Any
such modification or revocation shall be made not later than December 31, shall
be effective as of the first day of the following Service Year, and shall be
effective only as to fees to be earned in the future. A modification or
revocation of an existing deferral election shall be made in the manner and
form prescribed by the Committee. Any deferral election (whether in the nature
of an initial election, an unrevised continuing election or a revised
continuing election) shall become irrevocable upon becoming effective.
4. Crediting of Deferred Fees to Plan Accounts
(a) Establishment of Plan Accounts. The Committee shall cause to
be established a memorandum bookkeeping account (the "Plan Account") for each
Participant in the Plan. During each fiscal quarter within a Service Year,
there shall be credited to each Participant's Plan Account the Participant's
deferred fees as of the date such fees are payable to the Participant, with
such deferred fees allocated to cash or Phantom Stock. Such Plan Account shall
also be credited with interest or dividend credits, as described in Sections 5
and 6, and debited for payments made as described in Section 7(h).
(b) Subaccounts. Within each Participant's Plan Account, separate
subaccounts shall be maintained to the extent necessary for the administration
of the Plan. For
Page 23 of 33
<PAGE> 4
example, it may be necessary to maintain separate subaccounts where the
Participant has specified different payment commencement dates, different modes
of payment, or different elections of Phantom Stock and/or cash.
(c) Statement of Account. At least once per year, each
Participant shall be provided with a statement of his or her Plan Account.
5. Stock Election; Dividend Credits
(a) Election of Phantom Stock Units. To the extent a Participant
has elected to defer fees in the form of Phantom Stock, there shall be credited
to such Participant's Plan Account a number of hypothetical shares of stock
("Phantom Stock Units") equal to the number of shares (rounded to the fourth
decimal place) of $2.50 par value common stock of the Company ("Common Stock")
which could have been purchased with such deferred fees, based upon the average
of the closing price of Common Stock on the ten trading days preceding such
date.
(b) Cash Dividend Credits. As of each date on which dividends
other than stock dividends are paid to holders of Common Stock, there shall be
credited to a Participant's Plan Account that number of additional Phantom
Stock Units which is equal to the number of shares of Common Stock (rounded to
the fourth decimal place) which could have been purchased with such cash
dividends (or the fair market value of dividends paid
Page 24 of 33
<PAGE> 5
in property other than dividends payable in Common Stock of the Company), based
upon the average of the closing price of Common Stock on the ten trading days
preceding such date, which the Participant would have received if the
Participant had been the owner of a number of shares of Common Stock equal to
the number of Phantom Stock Units in the Participant's Plan Account.
(c) Changes in Capitalization. If the outstanding shares of
Common Stock are increased, decreased or exchanged for a different number or
kind of shares or other securities, or if additional shares or other property
(other than ordinary dividends) are distributed with respect to such shares of
Common Stock or other securities, through merger, consolidation, sale of all or
substantially all of the assets of the Company, reorganization,
recapitalization, reclassification, dividend, stock split, spin-off, split-off
or other distribution with respect to such shares of Common Stock, an
appropriate and proportionate adjustment shall be made in the number of Phantom
Stock Units in Participant's Plan Accounts.
6. Cash Election; Interest
To the extent a Participant has elected to defer fees in the form of
cash, as of the last day of each fiscal quarter in which a Participant has a
cash balance credited to his or her Plan Account, there shall be credited to
such Participant's Plan Account a dollar amount equal to simple interest on the
cash amount then in such Plan Account (excluding
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<PAGE> 6
any amounts credited during such quarter) computed at a per annum rate equal to
the prime rate published in The Wall Street Journal under the caption "Money
Rates" on the last business day of such quarter (or, if such publication is
discontinued, such other rate or index as may be selected by the Board in its
sole discretion).
7. Payment of Deferred Fees
(a) Payment Election Generally. A Participant may elect the time
and the mode (which may either be a lump sum payment or annual installment
payments, not to exceed five installments) for payment of amounts credited to
his or her Plan Account. Any such elections regarding the time and mode of
payment of amounts credited to a Participant's Plan Account shall be
irrevocable once made. In the absence of direction by a Participant regarding
the time or mode of payment of amounts credited to his or her Plan Accounts,
such amounts shall be distributed in a lump sum within six months of the date
such amounts become payable. Distribution in the mode elected by the
Participant shall commence immediately upon the occurrence of any of the
following events: death, retirement, disability, or termination, if such event
occurs prior to the distribution date elected by the Participant.
(b) Payment Upon Death. In the event of a Participant's death,
the balance of such Participant's Plan Account, computed as of the date of his
death, shall be paid in one lump sum to his or her designated beneficiary
within the first six months following the
Page 26 of 33
<PAGE> 7
date of such Participant's death. A Participant, by written instrument filed
with the Committee in such manner and form as it may prescribe, may designate
one or more beneficiaries to receive payment of the amounts credited to his
Plan Accounts in the event of his death. Any such beneficiary designation may
be changed from time to time prior to the death of the Participant without the
consent of any prior beneficiaries. In the absence of a beneficiary
designation on file with the Committee at the time of a Participant's death or
the death of a designated beneficiary without a designated successor,
Participant's estate shall be deemed to be the Participant's designated
beneficiary.
(c) Payment Upon Plan Termination. In the event the Plan is
terminated by the Company, the balance of each Participant's Plan Accounts,
computed as of the date of such Plan termination, shall be paid to such
Participant within three months of such date.
(d) Valuation of Plan Accounts for Purposes of Payment. For
purposes of payment from a Plan Account: (i) to the extent a Participant has
cash in his or her Plan Account, the value of his or her Plan Account shall be
determined by crediting interest on the cash portion of the Plan Account
through the day before the date payment is due to the Participant; and (ii) to
the extent a Participant has Phantom Stock in his or her Plan Account, the
value of his or her Plan Account shall be based upon the average of the closing
prices of Common Stock on the ten trading days preceding such date.
Page 27 of 33
<PAGE> 8
(e) Lump Sum Payments. To the extent a Participant elects to have
his or her Plan Account distributed in a lump sum, such payment shall be made
not more than three months after the date of the event giving rise to such
payment.
(f) Installment Payments. To the extent a Participant elects to
have his or her Plan Account distributed in installments, the amount of the
first installment shall be a fraction of the value of the Participant's Plan
Account, the numerator of which shall be one and the denominator of which shall
be the total number of annual installments elected, and the amount of each
subsequent installment shall be a fraction of the value of the Participant's
Plan Account (including interest and/or dividends credited pursuant to Sections
5 and 6) on the date preceding each subsequent payment, the numerator of which
shall be one and the denominator of which shall be the number of unpaid
installments.
(g) Form of Payment. All payments under the Plan shall be solely
in the form of cash. Without limiting the generality of the foregoing, nothing
in the Plan shall be construed as giving any Participant any rights as a holder
of Common Stock or any other equity security of the Company as a result of such
Participant's participation in this Plan or his or her election to credit his
or her Plan Account with Phantom Stock.
(h) Debiting of Plan Accounts. Once an amount has been paid to a
Participant or his or her beneficiary, such amount or the Phantom Stock
equivalent thereof shall be
Page 28 of 33
<PAGE> 9
debited from the Participant's Plan Account. In the case of installment
payments or other distribution of less than all of the balance of a Plan
Account, interest and/or dividend credits shall continue to be credited on the
balance remaining in the Plan Account in accordance with Sections 5 and 6.
8. Prohibition Against Attachment, Assignment or Encumbrance
To the extent permitted by law, no right, title, interest or benefit
hereunder shall ever be liable for or charged with any of the torts or
obligations of a Participant or a person claiming under a Participant, or be
subject to attachment, seizure or other legal process by any creditor of a
Participant or any person claiming under a Participant. Except as specifically
provided by the Plan, no Participant or any person claiming under a Participant
shall have the power to transfer, assign, mortgage, pledge, grant a security
interest in, encumber, anticipate or dispose of any right, title, interest or
benefit hereunder.
9. Nature of the Plan
(a) The Plan and any election agreements executed thereunder
constitute an unfunded, unsecured liability of the Company to make payments in
accordance with the provisions hereof, neither a Participant nor any person
claiming under the Participant shall have any security or other interest in any
specific assets of the Company by virtue of this Plan, and the right of any
person to receive any distribution hereunder shall be no greater than the right
of any unsecured general creditor of the Company. Neither the
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<PAGE> 10
establishment of the Plan, the crediting of amounts to Plan Accounts nor the
setting aside of any funds shall be deemed to create a trust of any kind or
create any fiduciary relationship on the part of the Company. The Company at
its election may, but shall not be required to, fund the payment of benefits
under the Plan by setting aside and investing, in an account on the Company's
books, such funds as the Company may from time to time determine. Legal and
equitable title to any funds so set aside shall remain in the Company, and no
Participant shall have any security or other interest in such funds, and any
funds so set aside shall remain subject to the claims of the general creditors
of the Company, present and future.
(b) Neither the Plan nor any action taken pursuant to the Plan
shall constitute evidence of any agreement or understanding, express or
implied, that the Company will retain a Participant as a director for any
period of time, or at any particular rate of compensation.
(c) No member of the Board or the Committee and no officer or
employee of the Company shall be liable to any person for any action taken or
omitted in connection with the administration of the Plan, unless attributable
to his or her own fraud or willful misconduct, nor shall the Company be liable
to any person for any such action unless attributable to fraud or willful
misconduct on the part of a director, officer or employee of the Company.
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<PAGE> 11
10. Amendment and Termination of Plan
The Company shall have the right to alter or amend the Plan or any
part thereof from time to time, except the Company shall not make any
alteration or amendment which would impair the rights of a Participant with
respect to amounts theretofore credited to that Participant's Plan Account.
Notice of any such change shall be given to each Participant. The Company may
terminate the Plan at any time. If not sooner terminated under the provisions
of this paragraph, the Plan shall terminate as of the date on which all amounts
theretofore credited to Plan Accounts have been paid.
11. Miscellaneous
(a) The Plan and any documents executed in connection therewith
shall be construed in accordance with and governed by the laws of the State of
Alabama.
(b) Failure to insist upon strict compliance with any of the
terms, covenants, or conditions hereof shall not be deemed a waiver of such
term, covenant, or condition, nor shall any waiver or relinquishment of any
right or power hereunder at any one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
(c) The invalidity or unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other provision.
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<PAGE> 12
(d) Except as otherwise provided herein, this Plan shall inure to
the benefit of and be binding upon each Participant, his or her heirs,
executors, and administrators and upon the Company, its successors and assigns,
including but not limited to any corporation which may acquire all or
substantially all of the Company's assets and business or with or into which
the Company may be consolidated or merged.
This Plan adopted by the Board of Directors of Mobile Gas Service
Corporation on the 27th day of January, 1995.
MOBILE GAS SERVICE CORPORATION
By /s/ William J. Hearin
Chairman of the Board of Directors
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<PAGE> 1
<TABLE>
<S> <C>
[LOGO]
MOBILE GAS
SERVICE CORPORATION POST OFFICE BOX 2248 - 2828 DAUPHIN STREET - MOBILE, ALABAMA 36652 - (205) 476-2720
</TABLE>
Exhibit 99
January 27, 1995
RELEASE: IMMEDIATELY
CONTACT: REGGIE MOODY
450-4741
The Board of Directors of Mobile Gas Service Corporation has elected
Mr. John S. Davis President and Chief Executive Officer. He succeeds Walter L.
Hovell, who is retiring.
Davis, a native of Jonesboro, La., has more than 20 years of
experience in the natural gas industry. After a tour of duty in the Air Force,
he joined Pennzoil Company in 1971. He held a variety of executive
positions, including President of United Energy Resources, Inc., the parent
company of United Gas Pipe Line Company. He helped with the merger of United
Energy with Midcon Corp. in 1985 and the sale of Midcon to Occidental Petroleum
Corp. in 1986. After a two-year period as an independent consultant, Davis
became president and chief operating officer at United Gas. Since July 1994,
he has been Executive Vice President and Chief Operating Officer at Mobile Gas
Service Corporation.
Davis, 52, earned his bachelor's and master's degrees in accounting
from Louisiana Tech in Ruston, and holds CPA certificates from Louisiana and
Texas. He serves on the boards of the Mobile Area Chamber of Commerce and the
Mobile Area Council of Boy Scouts of America. He is also a member of the
Senior Bowl Committee.
Page 33 of 33
