SEC FILE NO. 70-7828
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
CERTIFICATE PURSUANT TO
RULE 24
OF PARTIAL COMPLETION OF
TRANSACTIONS
ENERGY INITIATIVES, INC.<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------------
In The Matter of )
)
ENERGY INITIATIVES, INC. ) Certificate Pursuant
) to Rule 24 of Partial
SEC File No. 70-7828 ) Completion of
) Transactions
(Public Utility Holding )
Company Act of 1935) )
----------------------------------------
TO THE MEMBERS OF THE SECURITIES AND EXCHANGE COMMISSION:
The undersigned, Energy Initiatives, Inc. ("EI"),
hereby certifies pursuant to Rule 24 of the Rules and Regulations
under the Public Utility Holding Company Act of 1935 (the "Act")
that certain of the transactions proposed in the Application on
Form U-1, as amended, filed in SEC File No. 70-7828, have been
carried out in accordance with the Commission's Order, dated June
19, 1991 (HCAR No. 35-25335) and Supplemental Orders, dated
October 20, 1992 (HCAR No. 35-25657) and February 22, 1994 (HCAR
No. 35-25991) with respect thereto, as follows:
1. On November 1, 1994, EI acquired 100 shares of
common stock of EI Selkirk, Inc. ("EI Selkirk"), a newly-formed
Delaware corporation, for $100, and assigned to EI Selkirk all of
EI's right, title and interest under the Option Agreement, dated
as of June 28, 1991, as amended ("Option Agreement"), between EI
and Makowski Selkirk Holdings, Inc. ("MSHI") (as successor in
interest). On November 10, 1994, EI made an additional cash
capital contribution of $7,668,617.07 to EI Selkirk.
1<PAGE>
2. On November 10, 1994, pursuant to the terms of the
Option Agreement, EI Selkirk (i) acquired from MSHI all of MSHI's
limited partnership interest in Selkirk Cogen Partners, L.P.
("Partnership"), for an aggregate purchase price of $7,629,049,
and (ii) executed Amendment No. 1, dated as of November 1, 1994,
to the Third Amended and Restated Agreement of Limited
Partnership, dated as of May 1, 1994, of the Partnership
("Partnership Agreement"), and, accordingly, was admitted as a
substituted limited partner in the Partnership.
3. By filing the following exhibits in Item 6
thereof:
A-3 - Certificate of Incorporation of EI
Selkirk
A-4 - By-laws of EI Selkirk
A-5 - Specimen Stock Certificate of EI Selkirk
A-16 - Assignment and Assumption Agreement
between EI and EI Selkirk
A-17 - Amendment No. 1 to Third Amended and
Restated Agreement of Limited
Partnership of Selkirk Cogen Partners,
L.P.
2<PAGE>
SIGNATURE
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.
ENERGY INITIATIVES, INC.
By:
B. L. Levy, President
Date: November 18, 1994<PAGE>
EXHIBITS TO BE FILED BY EDGAR
Exhibits:
A-3 - Certificate of Incorporation of EI
Selkirk
A-4 - By-laws of EI Selkirk
A-5 - Specimen Stock Certificate of EI Selkirk
A-16 - Assignment and Assumption Agreement
between EI and EI Selkirk
A-17 - Amendment No. 1 to Third Amended and
Restated Agreement of Limited
Partnership of Selkirk Cogen Partners,
L.P.<PAGE>
Exhibit A-3
CERTIFICATE OF INCORPORATION
OF
EI SELKIRK, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is EI Selkirk, Inc.
SECOND: The address, including street, number, city and
county, of the registered office of the corporation in the State
of Delaware is 32 Loockerman Square, Suite L-100, City of Dover,
County of Kent; and the name of the registered agent of the
corporation in the State of Delaware at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is one hundred (100)
shares, all of which are without par value. All such shares are
of one class and are shares of Common Stock.
FIFTH: The name and the mailing address of the incorporator
are as follows:
NAME MAILING ADDRESS
Thomas A. Scott c/o Berlack, Israels & Liberman
120 West 45th Street
New York, New York 10036
SIXTH: The board of directors of the corporation is
expressly authorized to adopt, amend or repeal by-laws of the
corporation.
SEVENTH: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted
by paragraph (7) of subsection (b) of Section 102 of the General
Corporation Law of the State of Delaware, as the same may be
amended and supplemented.<PAGE>
EIGHTH: As of the date hereof, the corporation has received
no payment for any of its stock.
IN WITNESS WHEREOF, I have hereunto set my hand this 30th
day of October, 1994.
Thomas A. Scott,
Sole Incorporator
6
EXHIBIT A-4
BY LAWS
OF
EI SELKIRK, INC.
(a Delaware Corporation)
__________________
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK. Certificates
representing stock in the corporation shall be signed by, or in
the name of, the corporation by the Chairman or Vice Chairman of
the Board of Directors, if any, or by the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the corporation. Any or
all of the signatures on any such certificate may be facsimile.
In case any officer, transfer agent, or registrar who has signed
or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent, or
registrar before such certificate is issued, it may be issued by
the corporation with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue.
Whenever the corporation shall be authorized to issue
more than one class of stock or more than one series of any class
of stock, and whenever the corporation shall issue any shares of
its stock as partly paid stock, the certificates representing
shares of any such class or series or of any such partly paid
stock shall set forth thereon the statements prescribed by the
General Corporation Law. Any restrictions on the transfer or
registration of transfer of any shares of stock of any class or
series shall be noted conspicuously on the certificate
representing such shares.
The corporation may issue a new certificate of stock or
uncertified shares in place of any certificate theretofore issued
by it, alleged to have been lost, stolen, or destroyed, and the
Board of Directors may require the owner of the lost, stolen, or
destroyed certificate, or his legal representative, to give the
corporation a bond sufficient to indemnify the corporation
against any claim that may be made against it on account of the
alleged loss, theft, or destruction of any such certificate or
the issuance of any such new certificate or uncertificated
shares.
7<PAGE>
2. UNCERTIFICATED SHARES. Subject to any conditions
imposed by the General Corporation Law, the Board of Directors of
the corporation may provide by resolution or resolutions that
some or all of any or all classes or series of the stock of the
corporation shall be uncertificated shares. Within a reasonable
time after the issuance or transfer of any uncertificated shares,
the corporation shall send to the registered owner thereof any
written notice prescribed by the General Corporation Law.
3. FRACTIONAL SHARE INTERESTS. The corporation may,
but shall not be required to, issue fractions of a share. If the
corporation does not issue fractions of a share, it shall (1)
arrange for the disposition of fractional interests by those
entitled thereto, (2) pay in cash the fair value of fractions of
a share as of the time when those entitled to receive such
fractions are determined, or (3) issue scrip or warrants in
registered form (either represented by a certificate or
uncertificated) or bearer form (represented by a certificate)
which shall entitle the holder to receive a full share upon the
surrender of such scrip or warrants aggregating a full share. A
certificate for a fractional share or an uncertificated
fractional share shall, by scrip or warrants shall not unless
otherwise provided therein, entitle the holder to exercise voting
rights, to receive dividends thereon, and to participate in any
of the assets of the corporation in the event of liquidation.
The Board of Directors may cause scrip or warrants to be issued
subject to the conditions that they shall become void if not
exchanged for certificates representing the full shares or
uncertificated full shares before a specified date, or subject to
the conditions that the shares for which scrip or warrants are
exchangeable may be sold by the corporation and the proceeds
thereof distributed to the holders of scrip or warrants, or
subject to any other conditions which the Board of Directors may
impose.
4. STOCK TRANSFERS. Upon compliance with provisions
restricting the transfer or registration of transfer of shares of
stock, if any, transfers or registration of transfers of shares
of stock of the corporation shall be made only on the stock
ledger of the corporation by the registered holder thereof, or by
his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary of the corporation or with
a transfer agent or a registrar, if any, and, in the case of
shares represented by certificates, on surrender of the
certificate or certificates for such shares of stock properly
endorsed and the payment of all taxes due thereon.
5. RECORD DATE FOR STOCKHOLDERS. In order that the
corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment
thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than ten
days before the date of such meeting. If no record date is fixed
8<PAGE>
by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next
preceding the day on which the meeting is held. A determination
of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting. In order that the
corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which date shall not be
more than ten days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. If
no record date has been fixed by the Board of Directors, the
record date for determining the stockholders entitled to consent
to corporate action in writing without a meeting, when no prior
action by the Board of Directors is required by the General
Corporation Law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be
taken is delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place
of business, or an officer or agent of the corporation having
custody of the book in which proceedings of meetings of stock-
holders are recorded. Delivery made to the corporation's
registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed
by the Board of Directors and prior action by the Board of
Directors is required by the General Corporation Law, the record
date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the
close of business on the day on which the Board of Directors
adopts the resolution taking such prior action. In order that
the corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or
allotment of any rights in respect of any change, conversion, or
exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall not be more
than sixty days prior to such action. If no record date is
fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
6. MEANING OF CERTAIN TERMS. As used herein in
respect of the right to notice of a meeting of stockholders or a
waiver thereof or to participate or vote thereat or to consent or
dissent in writing in lieu of a meeting, as the case may be, the
term "share" or "shares", or "share of stock" or "shares of
stock" or "stockholder" or "stockholders" refers to an
outstanding share or shares of stock and to a holder or holders
of record of outstanding shares of stock of any class upon which
or upon whom the certificate of incorporation confers such rights
9<PAGE>
where there are two or more classes or series of shares of stock
or upon which or upon whom the General Corporation Law confers
such rights notwithstanding that the certificate of incorporation
may provide for more than one class or series of shares of stock,
one or more of which are limited or denied such rights
thereunder; provided, however, that no such right shall vest in
the event of an increase or a decrease in the authorized number
of shares of stock of any class or series which is otherwise
denied voting rights under the provisions of the certificate of
incorporation, except as any provision of law may otherwise
require.
7. STOCKHOLDERS MEETINGS.
-TIME. The annual meeting shall be held on the date
and at the time fixed, from time to time, by the directors,
provided, that the first annual meeting shall be held on a date
within thirteen months after the organization of the corporation,
and each successive annual meeting shall be held on a date within
thirteen months after the date of the preceding annual meeting.
A special meeting shall be held on the date and at the time fixed
by the directors.
-PLACE. Annual meetings and special meetings shall be
held at such place, within or without the State of Delaware, as
the directors may, from time to time, fix. Whenever the
directors shall fail to fix such place, the meeting shall be held
at the registered office of the corporation in the State of
Delaware.
-CALL. Annual meetings and special meetings may be
called by the directors or by any officer instructed by the
directors to call the meeting.
-NOTICE OR WAIVER OF NOTICE. Written notice of all
meetings shall be given, stating the place, date, and hour of the
meeting and stating the place within the city or other
municipality or community at which the list of stockholders of
the corporation may be examined. The notice of an annual meeting
shall state that the meeting is called for the election of
directors and for the transaction of other business which may
properly come before the meeting and shall (if any other action
which could be taken at a special meeting is to be taken at such
annual meeting) state the purpose or purposes. The notice of a
special meeting shall in all instances state the purpose or
purposes for which the meeting is called. The notice of any
meeting shall also include, or be accompanied by, any additional
statements, information, or documents prescribed by the General
Corporation Law. Except as otherwise provided by the General
Corporation Law, a copy of the notice of any meeting shall be
given, personally or by mail, not less than ten days nor more
than sixty days before the date of the meeting, unless the lapse
of the prescribed period of time shall have been waived, and
directed to each stockholder at his record address or at such
other address which he may have furnished by request in writing
10<PAGE>
to the Secretary of the corporation. Notice by mail shall be
deemed to be given when deposited, with postage thereon prepaid,
in the United States Mail. If a meeting is adjourned to another
time, not more than thirty days hence, and/or to another place,
and if an announcement of the adjourned time and/or place is made
at the meeting, it shall not be necessary to give notice of the
adjourned meeting unless the directors, after adjournment, fix a
new record date for the adjourned meeting. Notice need not be
given to any stockholder who submits a written waiver of notice
signed by him before or after the time stated therein.
Attendance of a stockholder at a meeting of stockholders shall
constitute a waiver of notice of such meeting, except when the
stockholder attends the meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders
need be specified in any written waiver of notice.
-STOCKHOLDER LIST. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least
ten days before every meeting of stockholders a complete list of
the stockholders, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city
or other municipality or community where the meeting is to be
held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and
may be inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list required by this
section or the books of the corporation, or to vote at any
meeting of stockholders.
-CONDUCT OF MEETING. Meetings of the stockholders
shall be presided over by one of the following officers in the
order of seniority and if present and acting - the Chairman of
the Board, if any, the Vice Chairman of the Board, if any, the
President, a Vice President, or, if none of the foregoing is in
office and present and acting, by a chairman to be chosen by the
stockholders. The Secretary of the corporation, or in his
absence, an Assistant Secretary, shall act as secretary of every
meeting, but if neither the Secretary nor an Assistant Secretary
is present, the Chairman of the meeting shall appoint a secretary
of the meeting.
-PROXY REPRESENTATION. Every stockholder may
authorize another person or persons to act for him by proxy in
all matters in which a stockholder is entitled to participate,
whether by waiving notice of any meeting, voting or participating
11<PAGE>
at a meeting, or expressing consent or dissent without a meeting.
Every proxy must be signed by the stockholder or by his attorney-
in-fact. No proxy shall be voted or acted upon after three years
from its date unless such proxy provides for a longer period. A
duly executed proxy shall be irrevocable if it states that it is
irrevocable and, if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A
proxy may be made irrevocable regardless of whether the interest
with which it is coupled is an interest in the stock itself or an
interest in the corporation generally.
-INSPECTORS. The directors, in advance of any
meeting, may, but need not, appoint one or more inspectors of
election to act at the meeting or any adjournment thereof. If an
inspector or inspectors are not appointed, the person presiding
at the meeting may, but need not, appoint one or more inspectors.
In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by
the directors in advance of the meeting or at the meeting by the
person presiding thereat. Each inspector, if any, before
entering upon the discharge of his duties, shall take and sign an
oath faithfully to execute the duties of inspector at such
meeting with strict impartiality and according to the best of his
ability. The inspectors, if any, shall determine the number of
shares of stock outstanding and voting power of each, the shares
of stock represented at the meeting, the existence of a quorum,
the validity and effect of proxies, and shall receive votes,
ballots, or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and
tabulate all votes, ballots, or consents, determine the result,
and do such acts as are proper to conduct the election or vote
with fairness to all stockholders. On request of the person
presiding at the meeting, the inspector or inspectors, if any,
shall make a report in writing of any challenge, question or
matter determined by him or them and execute a certificate or any
fact found by him or them.
-QUORUM. The holders of a majority of the outstanding
shares of stock shall constitute a quorum at a meeting of
stockholders for the transaction of any business. The
stockholders present may adjourn the meeting despite the absence
of a quorum.
-VOTING. Each share of stock shall entitle the holder
thereof to one vote. Directors shall be elected by a plurality
of the votes of the shares present in person or represented by
proxy at the meeting and entitled to vote on the election of
directors. Any other action shall be authorized by a majority of
the votes cast except where the General Corporation Law
prescribes a different percentage of votes and/or a different
exercise of voting power, and except as may be otherwise
prescribed by the provisions of the certificate of incorporation
and these Bylaws. In the election of directors, and for any
other action, voting need not be by ballot.
12<PAGE>
8. STOCKHOLDERS ACTION WITHOUT MEETING. Any action
required by the General Corporation Law to be taken at any annual
or special meeting of stockholders, or any action which may be
taken at any annual or special meeting of stockholders, may be
taken without a meeting, without prior notice and without a vote,
if a consent in writing, setting forth the action so taken, shall
be signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice
of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those
stockholders who have not consented in writing. Action taken
pursuant to this paragraph shall be subject to the provisions of
Section 228 of the General Corporation Law.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The business and
affairs of the corporation shall be managed by or under the
direction of the Board of Directors of the corporation. The
Board of Directors shall have the authority to fix the
compensation of the members thereof. The use of the phrase
"whole board" herein refers to the total number of directors
which the corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not
be a stockholder, a citizen of the United States, or a resident
of the State of Delaware. The initial Board of Directors shall
consist of one person. Such number may be changed from time to
time by action of the stockholders or of the directors.
3. ELECTION AND TERM. The first Board of Directors,
unless the members thereof shall have been named in the
certificate of incorporation, shall be elected by the
incorporator or incorporators and shall hold office until the
first annual meeting of stockholders and until their successors
are elected and qualified or until their earlier resignation or
removal. Any director may resign at any time upon written notice
to the corporation. Thereafter directors who are elected at an
annual meeting of stockholders, and directors who are elected in
the interim to fill vacancies and newly created directorships,
shall hold office until the next annual meeting of stockholders
and until their successors are elected and qualified or until
their earlier resignation or removal. Except as the General
Corporation Law may otherwise require, in the interim between
annual meetings of stockholders or of special meetings of
stockholders called for the election of directors and/or for the
removal of one or more directors and for the filling of any
vacancy in that connection, newly created directorships and any
vacancies in the Board of Directors including unfilled vacancies
resulting from the removal of directors for cause or without
13<PAGE>
cause, may be filled by the vote of a majority of the remaining
directors then in office, although less than a quorum, or by the
sole remaining director.
4. MEETINGS.
-TIME. Meeting shall be held at such time as the
Board shall fix, except that the first meeting of a newly elected
Board shall be held as soon after its election as the directors
may conveniently assemble.
-PLACE. Meeting shall be held at such place within or
without the State of Delaware as shall be fixed by the Board.
-CALL. No call shall be required for regular
meetings for which the time and place have been fixed. Special
meetings may be called by or at the direction of the Chairman of
the Board, if any, of the Vice Chairman of the Board, if any, of
the President, or of a majority of the directors in office. No
notice shall be required for regular meetings for which the time
and place have been fixed. Written, oral or any other mode of
notice of the time and place shall be given for special meetings
in sufficient time for the convenient assembly of the directors
thereat. Notice need not be given to any director or to any
member of a committee of directors who submits a written waiver
of notice signed by him before or after the time stated therein.
Attendance of any such person at a meeting shall constitute a
waiver of notice of such meeting, except when he attends a
meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business
to be transacted at, nor the purpose of, any regular or special
meeting of the directors need be specified in any written waiver
of notice.
-QUORUM AND ACTION. A majority of the whole Board
shall constitute a quorum except when a vacancy or vacancies
prevents such majority, whereupon a majority of the directors in
office shall constitute a quorum, provided, that such majority
shall constitute at least one-third of the whole Board. A
majority of the directors present, whether or not a quorum is
present, may adjourn a meeting to another time and place.
Except as herein provided and except as otherwise provided by the
General Corporation Law, the vote of the majority of the
directors present at a meeting at which a quorum is present shall
be the act of the Board. The quorum and voting provisions herein
stated shall not be construed as conflicting with any provisions
of the General Corporation Law and these Bylaws which govern a
meeting of directors held to fill vacancies and newly created
directorships in the Board or action of disinterested directors.
Any member or members of the Board of Directors or of
any committee designated by the Board, may participate in a
meeting of the Board, or any such committee, as the case may be,
by means of conference telephone or similar communication
14<PAGE>
equipment by means of which all persons participating in the
meeting can hear each other.
-CHAIRMAN OF THE MEETING. The Chairman of the Board,
if any, and if present and acting, shall preside at all meetings.
Otherwise, the Vice Chairman of the Board, if any, and if present
and acting, or the President, if present and acting, or any other
director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS. Except as may otherwise be
provided by the General Corporation Law, any director or the
entire Board of Directors may be removed, with or without cause,
by the holders of a majority of the shares then entitled to vote
at an election of directors.
6. COMMITTEES. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one
or more committees, each committee to consist of one or more of
the directors of the corporation. The Board may designate one or
more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of any member of
any such committee or committees, the member or members thereof
present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in
the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board,
shall have and may exercise the powers and authority of the Board
of Directors in the management of the business and affairs of the
corporation with the exception of any authority the delegation of
which is prohibited by Section 141 of the General Corporation
Law, and may authorize the seal of the corporation to be affixed
to all papers which may require it.
7. WRITTEN ACTION. Any action required or permitted
to be taken at any meeting of the Board of Directors or any
committee thereof may be taken without a meeting if all members
of the Board or committee, as the case may be, consent thereto in
writing, and writing or writings are filed with the minutes of
proceedings of the Board or committee.
ARTICLE III
OFFICERS
The officers of the corporation shall consist of a
President, a Secretary, a Treasurer, and, if deemed necessary,
expedient, or desirable by the Board of Directors, a Chairman of
the Board, a Vice Chairman of the Board, an Executive Vice
President, one or more other Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, and such
other officers with such titles as the resolution of the Board of
Directors choosing them shall designate. Except as may otherwise
be provided in the resolution of the Board of Directors choosing
15<PAGE>
him, no officer other than the Chairman or Vice Chairman of the
Board, if any, need be a director. Any number of offices may be
held by the same person, as the directors may determine.
Unless otherwise provided in the resolution choosing
him, each officer shall be chosen for a term which shall continue
until the meeting of the Board of Directors following the next
annual meeting of stockholders and until his successor shall have
been chosen and qualified.
All officers of the corporation shall have such
authority and perform such duties in the management and operation
of the corporation as shall be prescribed in the resolutions of
the Board of Directors designating and choosing such officers and
prescribing their authority and duties, and shall have such
additional authority and duties as are incident to their office
except to the extent that such resolutions may be inconsistent
therewith. The Secretary or an Assistant Secretary of the
corporation shall record all of the proceedings of all meetings
and actions in writing of stockholders, directors, and committees
of directors, and shall exercise such additional authority and
perform such additional duties as the Board shall assign to him.
Any officer may be removed, with or without cause, by the Board
of Directors. Any vacancy in any office may be filled by the
Board of Directors.
ARTICLE IV
INDEMNIFICATION
(a) The corporation may indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason
of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
16<PAGE>
(b) The corporation may indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer, employee
or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred
to in subsections (a) and (b) of this Article, or in defense of
any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b)
of this Article (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in subsections
(a) and (b) of this Article. Such determination shall be made
(1) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit
or proceeding, or (2) if such a quorum is not obtainable, or,
even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or
(3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be
paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this Article.
Such expenses (including attorneys' fees) incurred by other
17<PAGE>
employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of
this Article shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any bylaw, 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.
(g) The corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability
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
under this Article.
(h) For purposes of this Article, references to "the
corporation" shall include, in addition to the resulting corpora-
tion, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall
stand in the same position under this section with respect to the
resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had
continued.
(i) For purposes of this Article, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving
at the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to
in this Article.
18<PAGE>
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article shall, unless
otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE V
CORPORATE SEAL
The corporate seal shall be in such form as the Board
of Directors shall prescribe.
ARTICLE VI
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and
shall be subject to change, by the Board of Directors.
ARTICLE VII
CONTROL OVER BYLAWS
Subject to the provisions of the certificate of
incorporation and the provisions of the General Corporation Law,
the power to amend, alter, or repeal these Bylaws and to adopt
new Bylaws may be exercised by the Board of Directors or by the
stockholders.
19<PAGE>
I HEREBY CERTIFY that the foregoing is a full,
true, and correct copy of the Bylaws of EI Selkirk, Inc., a
Delaware corporation, as in effect as of the date hereof.
WITNESS my hand and the seal of the corporation.
Dated: November , 1994
Secretary of
EI Selkirk, Inc.
20<PAGE>
EXHIBIT A-5
NUMBER SHARES
-1- -100-
EI SELKIRK, INC.
TOTAL AUTHORIZED ISSUE
100 SHARES WITHOUT PAR VALUE
COMMON STOCK
This is to Certify that ENERGY INITIATIVES, INC. is the owner of
One Hundered fully paid and non-assessable shares of the above
corporation transferable only on the books of the Corporation by
the holder hereof in person or by duly authorized Attorney upon
surrender of this Certificate properly endorsed.
Witness, the seal of the Corporation and the signatures of its
duly authorized officers.
Dated: November 1, 1994
_____________________________ __________________________
SECRETARY PRESIDENT
Exhibit A-16
ASSIGNMENT AND ASSUMPTION AGREEMENT
Assignment and Assumption Agreement, dated as of
November __, 1994, between Energy Initiatives, Inc. ("Assignor")
and EI Selkirk, Inc. ("Assignee").
WHEREAS, Assignor is a party to that certain Option
Agreement, dated as of June 28, 1991, as amended ("Option Agree-
ment"), with Makowski Selkirk Holdings, Inc. ("MSHI") (as succes-
sor-in-interest);
WHEREAS, on September 15, 1994, Assignor exercised the
option granted by the Option Agreement to acquire all of MSHI's
partnership interest in Selkirk Cogen Partners, L.P. ("Selkirk
Partnership Interest"); and
WHEREAS, Assignor desires to assign to Assignee, and
Assignee desires to acquire and assume from Assignee, all of
Assignor's right, title and interest in and to the Option Agree-
ment and, in respect thereof, all of Assignor's right, title and
interest in and to that certain Second Amended and Restated
Consent and Agreement, dated as of May 1, 1994, among EI, MSHI
and the other partners in Selkirk Cogen Partners, L.P. ("Consent
Agreement").
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
i. Assignor hereby sells, assigns and transfers to
Assignee all of Assignor's right, title and interest in and to
(x) the Option Agreement, including without limitation Assignor's
right to acquire the Selkirk Partnership Interest and (y) the
Consent Agreement.
ii. Assignee hereby assumes from Assignor all of
Assignor's obligations under the Option Agreement and the Consent
Agreement.
iii. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York
without reference to conflict of law principles.<PAGE>
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
ENERGY INITIATIVES, INC.
By:___________________________
EI SELKIRK, INC.
By:___________________________
2
EXHIBIT A-17
SELKIRK COGEN PARTNERS, L.P.
AMENDMENT NO. 1 TO THE
THIRD AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP
This Amendment No. 1 to the THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP is made as of November 1, 1994
by and among the undersigned parties.
W I T N E S S E T H:
WHEREAS, Selkirk Cogen Partners, L.P. (the
"Partnership") was established pursuant to a Certificate of
Limited Partnership filed with the Secretary of State of the
State of Delaware following the execution and delivery of an
Agreement of Limited Partnership dated as of December 15, 1989
(the "Original Agreement") by and among JMC Selkirk, Inc., a
Delaware corporation, as general partner ("JMC"), Old State
Management Corp., a Massachusetts corporation, as both general
partner and limited partner ("OSM"), and Makowski Selkirk, Inc.,
a Delaware corporation ("MSI"), as limited partner;
WHEREAS, the Original Agreement was amended and
restated on June 15, 1990 (the "First Amended Agreement") to
admit JMCS I Investors, L.P., a Delaware limited partnership
("JMCSI"), as a general partner and Old State Selkirk Associates
L.P., a Delaware limited partnership ("OSSA"), as a limited
partner, and to reflect the withdrawal of OSM and MSI from the
Partnership;
1<PAGE>
WHEREAS, the First Amended Agreement was further
amended and restated as of October 23, 1992 (the "Second Amended
Agreement") to provide, among other things, for the merger of
Selkirk Cogen Partners II, L.P. ("SCPII") into the Partnership,
with the Partnership as the surviving entity, pursuant to a
Merger Agreement dated October 23, 1992 by and between the
Partnership and SCPII;
WHEREAS, the Second Amended Agreement was further
amended and restated as of May 1, 1994 (the "Third Amended
Agreement") to reflect the withdrawal of OSSA from the
Partnership and to provide, among other things, for the admission
of Cogen Technologies Selkirk GP, Inc., a Texas corporation
("Cogen GP") as a general partner of the Partnership, for the
admission of Holdings and Cogen Technologies Selkirk, L.P., a
Delaware limited partnership ("Cogen LP") as limited partners of
the Partnership and for the conversion of a portion of the
general partnership interest of JMCSI in the Partnership to a
limited partnership interest;
WHEREAS, the parties hereto desire to amend the Third
Amended Agreement: (i) to reflect the withdrawal of Holdings as a
Class A Limited Partner of the Partnership; (ii) to admit EI
Selkirk, Inc., a Delaware corporation (the "Assignee"), as a
Substituted Class A Limited Partner of the Partnership; and (iii)
to make certain conforming changes to the Third Amended
Agreement.
2<PAGE>
NOW, THEREFORE, in consideration of the mutual
covenants and agreements made herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
ARTICLE I
AMENDMENT TO THE THIRD AMENDED AGREEMENT
iv. Section 13(b)(v) of the Third Amended Agreement is
hereby amended by deleting the last sentence of such subsection.
v. Section 19(e) of the Third Amended Agreement is
hereby amended by deleting the last sentence of such section.
vi. Section 19(1) of the Third Amended Agreement is
hereby amended by deleting such section in its entirety.
vii. Schedules I and VIII are hereby amended by
deleting such Schedules in their entirety and inserting in place
thereof the Schedule I and Schedule VIII attached hereto.
ARTICLE II
MISCELLANEOUS
1. All capitalized terms used in this Amendment shall
have the meaning ascribed to them in the Third Amended Agreement
as in effect on the day immediately preceding the day and year
first above written.
2. Except as amended by this Amendment all other
terms and provisions of the Third Amended Agreement as in effect
on the day immediately preceding the day and year first above
3<PAGE>
written shall continue in full force and effect and unchanged and
are hereby confirmed in all respects.
3. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their authorized representatives
on the day and year first above written.
JMC SELKIRK, INC.
By:____________________________
Name:
Title:
JMC I INVESTORS, L.P.
By: JMCS I Holdings, Inc.,
a General Partner
By:____________________________
Name:
Title:
MAKOWSKI SELKIRK HOLDINGS, Inc.,
as Withdrawing Partner
By:____________________________
Name:
Title:
COGEN TECHNOLOGIES SELKIRK GP,
INC.
By:____________________________
4<PAGE>
COGEN TECHNOLOGIES SELKIRK, L.P.
By: COGEN Technologies
Selkirk L.P., Inc.
By:____________________________
Name:
Title:
EI SELKIRK, INC.
By:____________________________
Name:
Title:
5<PAGE>
Revised
<TABLE> November 1, 1994
SELKIRK COGEN PARTNERS, L.P.
SCHEDULE I
CAPITAL CONTRIBUTIONS, PERCENTAGE INTERESTS, VOTING INTERESTS
<CAPTION>
General Partners Limited Partners
JMC
Selkirk JMCSI Cogen GP Cogen LP EII JMSCI
<S> <C> <C> <C> <C> <C> <C>
Carryover Capital Account $59,060 $588,888 - - $1,181,200 $4,076,852
Agreement Date Capital
Contribution - - $ 64,795 $ 5,064,085 - -
Agreement Date Capital Account $59,060 $588,888 $ 64,795 $ 5,064,085 $1,181,200 $4,076,852
Committed Capital Contribution - - $583,153 $45,576,767 $7,600,000 -
Total Committed Capital
Contribution $59,060 $588,888 $647,948 $50,640,852 $8,781,200 $4,076,852
Preferred Percentage Interest 0.0911% 0.9089% 1.0000% 78.1557% 13.5523% 6.2919%
Original Percentage Interest 1.0000% 9.9710% - - 20.0000% 69.0290%
Residual Percentage Interest 0.8100% 8.0765% 0.2211% 17.2789% 17.7000% 55.9135%
Initial Voting Interest 0.0911% 0.9089% 1.0000% 78.1557% 13.5523% 6.2919%
Post-Flip Date Voting Interest 0.8100% 8.0765% 0.2211% 17.2789% 17.7000% 55.9135%
</TABLE>
6<PAGE>
Revised
November 1, 1994
SELKIRK COGEN PARTNERS, L.P.
SCHEDULE VIII
NOTICE ADDRESSES, REPRESENTATIVES, ALTERNATE REPRESENTATIVES
A. Notice Addresses
1. The Notice Address for the Managing General Partner,
JMC Selkirk, and JMCSI is:
c/o J. Makowski Associates
One Bowdoin Square
Boston, Massachusetts 02114-2910
Telephone: 617-227-8080
Telefax: 617-227-2690
Attention: Walter Q. Howard
2. The Notice Address for Cogen GP and Cogen LP is:
c/o Cogen Technologies
1600 Smith Street
Suite 5000
Houston, Texas 77002
Telephone: 713-951-7722
Telefax: 713-951-7747
Attention: Nadeem Babar
3. The Notice Address for EII is:
c/o Energy Initiatives, Inc.
One Upper Pond Road
Parsippany, New Jersey 07054
Telephone: 201-263-6950
Telefax: 201-263-6977
Attention: Bruce L. Levy
7<PAGE>
B. Representatives
1. The JMC Selkirk representative to the Selkirk Cogen
Partners, L.P. Management Committee will be J. Christopher
Terajewicz. The alternate representatives will be as follows:
a. Jacek Makowski
b. Carlos A. Riva
c. Walter Q. Howard
d. Robert Warburton
e. John H. Foster
f. Kevin J. Donovan
2. The JMCSI representative to the Selkirk Cogen Partners,
L.P. Management Committee will be J. Christopher Terajewicz. The
alternate representatives will be as follows:
a. Jacek Makowski
b. Carlos A. Riva
c. Walter Q. Howard
d. Robert Warburton
e. John H. Foster
f. Kevin J. Donovan
3. The Cogen Representative to the Selkirk Cogen Partners,
L.P. Management Committee will be Robert C. McNair. The
alternate representatives will be as follows:
a. H. Fred Levine
b. J.M. Bollinger
c. Donald R. Kendall, Jr.
d. Ragan Phillips
e. Richard A. Lydecker
f. Nadeem Babar
8
