UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) April 6, 1995
SOUTHEASTERN PUBLIC SERVICE COMPANY
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(Exact name of registrant as specified in its charter)
DELAWARE 1-4351 13-5534018
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(State or other (Commission (I.R.S. Employer
jurisdiction of File No.) Identification No.)
incorporation of
organization)
2001 N.W. 107th Avenue
Miami, Florida 33172
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(Address of principal executive office) (Zip code)
Registrant's telephone number, including area code:(305) 593-6565
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(Former name or former address, if
changed since last report)
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
Filed herewith are certain agreements and documents entered
into by or otherwise relating to the Registrant and its
subsidiaries.
(c) Exhibits
3.3 -- By-Laws of Southeastern Public Service Company
("SEPSCO").
10.5 -- Management Services Agreement, dated as of November
15, 1994, between National Propane Corporation and
Public Gas Company.
10.6 -- Management Services Agreement, dated as of January 1,
1995, by and between SEPSCO and Management Providers,
Inc.
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
SOUTHEASTERN PUBLIC SERVICE COMPANY
By:JOSEPH A. LEVATO
Joseph A. Levato
Executive Vice President
and Chief Financial Officer
Date: April 6, 1995
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description Page No.
- ------- ------------ --------
3.3 -- By-Laws of Southeastern Public Service
Company ("SEPSCO").
10.5 -- Management Services Agreement, dated as of
November 15, 1994, between National Propane
Corporation and Public Gas Company.
10.6 -- Management Services Agreement, dated as of
January 1, 1995, by and between SEPSCO and
Management Providers, Inc.
<PAGE>
Exhibit 3.3
SOUTHEASTERN PUBLIC SERVICE COMPANY
BY-LAWS
ARTICLE I
Offices
SECTION 1. Registered Office in Delaware. The
registered office of the Corporation (as defined in Article IX
below) in the State of Delaware shall be located at 1209 Orange
Street in the City of Wilmington, County of New Castle, and the
name of the resident agent in charge thereof shall be The
Corporation Trust Company.
SECTION 2. Principal Executive Offices. The
principal executive office of the Corporation shall be located
at 2001 N.W. 107th Avenue, Miami, Florida 33172, or such other
location as the Board of Directors shall determine.
SECTION 3. Other Offices. In addition to the
registered office in the State of Delaware and the principal
executive office, the Corporation may have offices at such other
places within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
Meeting of Stockholders
SECTION 1. Annual Meetings. The annual meeting of
stockholders of the Corporation for the election of directors
and the transaction of such other business as may be brought
before the meeting in accordance with the Certificate of
Incorporation (as defined in Article IX below) and these By-Laws
shall be held on the date and at the time fixed from time to
time by the Board of Directors within thirteen (13) months after
the date of the preceding annual meeting. The annual meeting of
stockholders of the Corporation shall not be called or held
otherwise than as provided in the Certificate of Incorporation
or in these By-Laws.
SECTION 2. Special Meeting. Special meetings of
stockholders of the Corporation may be called only at the
direction of the Chairman and Chief Executive Officer, the
President and Chief Operating Officer or the Board of Directors.
SECTION 3. Place of Meeting. Annual and special
meetings of stockholders of the Corporation shall be held at the
registered office of the Corporation in the City of Wilmington,
County of New Castle, State of Delaware, unless some other place
within or without the State of Delaware shall have been fixed by
a resolution adopted by the Board and designated in the notice
of meeting.
SECTION 4. Notice of Meetings. Notice of every
meeting of stockholders of the Corporation, annual or special,
stating the time, place and, in general terms, the purpose or
purposes thereof, shall be given by the Chairman and Chief
Executive Officer or the President and Chief Operating Officer
or the Secretary of the Corporation to each stockholder of
record entitled to vote at the meeting. Notice of the time,
place and purposes of any annual or special meeting of
stockholders may be dispensed with if every stockholder entitled
to notice of and to vote at such meeting shall attend, either in
person or by proxy, or if every absent stockholder entitled to
such notice and vote shall, in a writing or writings filed with
the records of the meeting either before or after the holding
thereof, waives such notice.
SECTION 5. Means of Giving Notice. A notice of any
annual or special meeting of stockholders of the Corporation may
be given either personally or by mail or other means of written
communication, charges prepaid, addressed to the stockholder at
such stockholder's address appearing on the books of the
Corporation or given by such stockholder to the Corporation for
the purpose of notice. If a stockholder gives no address to the
Corporation for the purpose of notice, notice is duly given to
such stockholder if sent by mail or other means of written
communication addressed to the place where the registered office
of the Corporation is situated, or if published, at least once
in a newspaper of general circulation in the county in which
such office is located.
SECTION 6. Time of Notice. Any required notice of
any meeting of stockholders of the Corporation shall be sent to
each stockholder entitled thereto not less than ten (10) nor
more than sixty (60) days prior to the date of the meeting.
SECTION 7. Record Date. The record date for
determining stockholders entitled to notice of and to vote at
any meeting of stockholders of the Corporation shall be that
date, not less than ten (10) nor more than sixty (60) days
preceding the date of the meeting, fixed for such purpose by the
affirmative vote of a majority of the Board of Directors, or, if
no such date is fixed for such purpose by the Board of
Directors, the date next preceding the day on which notice of
the meeting is given, or, if notice of the meeting is waived,
the day next preceding the day on which the meeting is held.
SECTION 8. List of Stockholders. The officer who has
charge of the stock ledger of the Corporation shall prepare and
make, at least ten (10) days before every meeting of
stockholders of the Corporation, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order, showing the address of each stockholder and
the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is
to be held, which place shall be specified in the notice of the
meeting, or, if not 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.
SECTION 9. Quorum. At any meeting of stockholders of
the Corporation the presence in person or by proxy of the
holders of a majority in voting power of the outstanding stock
of the Corporation entitled to vote shall constitute a quorum
for the transaction of business brought before the meeting in
accordance with the Certificate of Incorporation and these
By-Laws and, a quorum being present, the affirmative vote of the
holders of a majority in voting power present in person or
represented by proxy and entitled to vote shall be required to
effect action by stock- holders; provided, however, that the
affirmative vote of a plurality in voting power present in
person or represented by proxy and entitled to vote shall be
required to effect elections of directors. The stockholders
present at any duly organized meeting of stockholders may
continue to do business until adjournment, notwithstanding the
withdrawal of enough stock- holders to have less than a quorum.
SECTION 10. Adjournment. Any meeting of stockholders
of the Corporation may be adjourned from time to time, without
notice other than by announcement at the meeting by the chairman
of the meeting at which such adjournment is taken, and at any
such adjourned meeting at which a quorum shall be present any
action may be taken that could have been taken at the meeting
originally called; provided, however, that if the adjournment is
for more than thirty (30) days, or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of
record entitled to vote at the adjourned meeting.
SECTION 11. Organization. At every meeting of
stockholders of the Corporation, the Chairman and Chief
Executive Officer or, in the absence of such officer, the
President and Chief Operating Officer or, in the absence of both
such officers, such individual as shall have been designated by
the Chairman and Chief Executive Officer, or if such officer has
not done so, then by the President and Chief Operating Officer,
or if such officer has not done so, by a resolution adopted by
the affirmative vote of a majority of the Board of Directors,
shall act as chairman of the meeting. The Secretary of the
Corporation or, in the absence of such officer, an Assistant
Secretary in attendance or, in the absence of the Secretary and
an Assistant Secretary, an individual appointed by the chairman
of the meeting shall act as secretary of the meeting and keep a
record of the proceedings of the meeting.
SECTION 12. Agenda and Rules of Order. The chairman
of the meeting shall have sole authority to prescribe the agenda
and rules of order for the conduct of any meeting of
stockholders of the Corporation and to determine all questions
arising thereat relating to the order of business and the
conduct of the meeting, except as otherwise required by law.
SECTION 13. Conduct of Business at Meetings. Except
as otherwise provided by law, at any annual or special meeting
of stockholders of the Corporation only such business shall be
conducted as shall have been properly brought before the
meeting. In order to be properly brought before the meeting,
such business must have either been:
(A) specified in the written notice of the meeting (or any
supplement thereto) given to stockholders of record on the
record date for such meeting by or at the direction of the Board
of Directors; or
(B) brought before the meeting at the direction of the
Chairman and Chief Executive Officer, the President and Chief
Operating Officer or the Board of Directors.
SECTION 14. Stockholder Action by Consent. Any
action required or permitted to be taken by the holders of the
issued and outstanding stock of the Corporation may be effected
at an annual or special meeting of stockholders or by the
consent in writing of such stockholders or any of them, which
writing shall be filed with the minutes of proceedings of the
stockholders.
ARTICLE III
Board of Directors
SECTION 1. Board of Directors. The business and
affairs of the Corporation shall be managed by or under the
direction of the Board of Directors.
SECTION 2. Qualification of Director. Each director
shall be at least eighteen (18) years of age. Directors need
not be stockholders of the Corporation.
SECTION 3. Number of Directors. The Board of
Directors shall consist of not fewer than two (2) nor more than
fifteen (15) individuals, the exact number to be fixed from time
to time by the Board of Directors pursuant to a resolution
adopted by a majority of directors then in office.
SECTION 4. Election and Term of Office. The members
of the Board of Directors shall be elected by the stockholders
at the annual meeting of stockholders and each director shall
hold office until the annual meeting of stockholders next
succeeding his or her election and until his or her successor is
elected and qualified, or until his or her earlier death,
resignation, retirement, disqualification or removal.
SECTION 5. Vacancies. Any vacancy in the Board of
Directors caused by death, resignation, retirement,
disqualification or removal or any other cause (including an
increase in the number of directors) may be filled solely by
resolution adopted by the affirmative vote of a majority of the
directors then in office, whether or not such majority
constitutes less than a quorum, or by a sole remaining director.
Any new director elected to fill a vacancy on the Board of
Directors will serve for the remainder of the full term of the
director for which the vacancy occurred. No decrease in the
size of the Board of Directors shall have the effect of
shortening the term of any incumbent director.
SECTION 6. Resignation of Directors. Any director
may resign at any time. Such resignation shall be made in
writing and shall take effect at the time specified therein, and
if no time be specified, shall take effect at the time of its
receipt by the Chairman and Chief Executive Officer, the
President and Chief Operating Officer or the Secretary of the
Corporation. The acceptance of a resignation shall not be
necessary to make it effective, but no resignation shall
discharge any accrued obligation or duty of a director.
SECTION 7. Removal of Directors. A duly elected
director of the Corporation may be removed from such position,
with or without cause, only by the affirmative vote of the
holders of two-thirds (2/3) of the voting power of the
outstanding capital stock of the Corporation entitled to vote in
the election of directors, voting as a single class.
SECTION 8. Quorum of Directors. Except as otherwise
required by law or by the Certificate of Incorporation or by
these By-Laws, (i) a majority of the directors in office at the
time of a duly assembled meeting shall constitute a quorum and
be sufficient for the transaction of business, and (ii) any act
of a majority of the directors present at a meeting at which
there is a quorum shall be the act of the Board of Directors.
SECTION 9. Place of Meeting. Subject to the
provisions of Section 10 of this Article III, the Board of
Directors may hold any meeting at such place or places within or
without the State of Delaware as it may determine.
SECTION 10. Organization Meeting. After each annual
meeting of stockholders of the Corporation, the Board of
Directors shall meet immediately at the place where such meeting
of stockholders was held for the purpose of organization,
election of Executive Officers (as defined in Section 1 of
Article V), and the transaction of other business.
SECTION 11. Regular Meetings. Regular meetings of
the Board of Directors may be held at such times and at such
places within or without the State of Delaware as the Board of
Directors shall from time to time determine.
SECTION 12. Special Meetings. Special meetings of
the Board of Directors may be called by the Chairman and Chief
Executive Officer, the President and Chief Operating Officer or
any two directors, and any such meeting shall be held at such
time and at such place within or without the State of Delaware
as shall be specified in the notice of meeting.
SECTION 13. Notice of Meetings. Subject to the
provisions of Section 10 of this Article III, notice of the
place, day and hour of every meeting of the Board of Directors
shall be given to each director by mailing such notice at least
two (2) days before the meeting to his or her last known address
or by personally delivering, telegraphing or telephoning such
notice to him or her at least twenty-four (24) hours before the
meeting.
SECTION 14. Organization. The Chairman and Chief
Executive Officer or, in the absence of such officer, the
President and Chief Operating Officer shall call meetings of the
Board of Directors to order and shall act as the chairman
thereof. In the absence of the Chairman and Chief Executive
Officer and the President and Chief Operating Officer, a
majority of the directors present may elect as chairman of the
meeting any director present. The Secretary of the Corporation
or, in the absence of such officer, an Assistant Secretary in
attendance or, in the absence of the Secretary and an Assistant
Secretary, an individual appointed by the chairman of the
meeting shall act as a secretary of the meeting and keep a
record of the proceedings of the meeting.
SECTION 15. Order of Business. Unless otherwise
determined by the Board of Directors the order of business and
rules of order at any meeting of the Board of Directors shall be
determined by the chairman of the meeting.
SECTION 16. Adjournment. Any meeting of the Board of
Directors may be adjourned from time to time by a majority of
the directors present, whether or not they shall constitute a
quorum, and no notice shall be required of any adjourned meeting
beyond the announcement of such adjournment at the meeting.
SECTION 17. Action by Board of Directors Without a
Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or any
committee thereof may be taken without a meeting if all the
members of the Board or the committee, as the case may be,
consent thereto in writing and the writings are filed with the
minutes of the proceedings of the Board of Directors or
committee, as the case may be.
SECTION 18. Action by Conference Telephone. Unless
otherwise restricted by the Certificate of Incorporation or
these By-Laws, members of the Board of Directors or of any
committee thereof may participate in a meeting of the Board of
Directors or of such committee, as the case may be, by means of
conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear
each other, and participation in a meeting in such manner shall
constitute presence in person at such a meeting.
SECTION 19. Compensation. Each director, in
consideration of his or her serving as such, shall be entitled
to receive from the Corporation such compensation as the Board
of Directors shall from time to time determine, together with
reimbursement for reasonable expenses incurred by him or her in
attending meetings of the Board of Directors. Each director who
shall serve as a member of any committee of the Board of
Directors, in consideration of his or her serving as such, shall
be entitled to such additional compensation as the Board of
Directors shall from time to time determine, together with
reimbursement for reasonable expenses incurred by him or her in
attending meetings of such committee. Nothing herein contained
shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation
therefor.
ARTICLE IV
Committees of Directors
SECTION 1. Committees. By resolution adopted by the
affirmative vote of a majority of the Board of Directors, the
Board of Directors may appoint one or more committees, which may
include as members directors only or directors and
non-directors, as the Board of Directors may from time to time
consider desirable, and such committees shall have such powers
and duties as the Board of Directors shall determine and as
shall be specified in the resolution of appointment; provided,
however, that the powers and duties of any such committee whose
members shall include non-directors shall be limited to making
recommendations to the Board of Directors.
SECTION 2. Committee Vacancies. Any member of a
committee appointed pursuant to this Article IV shall serve at
the pleasure of the Board of Directors, which Board shall have
the power at any time by the affirmative vote of a majority of
the Board of Directors to remove any member, with or without
cause, and to fill vacancies in the membership of a committee.
No committee appointed pursuant to this Article IV shall have
the power to fill any vacancy in the membership of such
committee. Any committee appointed pursuant to Section 1 of
this Article IV shall exist at the pleasure of the Board of
Directors, which Board shall have the power at any time by the
affirmative vote of a majority of the Board of Directors to
change the powers and duties of any such committee or to
dissolve it.
SECTION 3. Committee Meetings. Regular meetings of a
committee appointed pursuant to this Article IV shall be held at
such times and at such places within or without the State of
Delaware as the Board of Directors or the committee shall from
time to time determine, and no notice of such regular meetings
shall be required. Special meetings of any committee may be
called by the chairman of such committee or by the Chairman and
Chief Executive Officer or by the President and Chief Operating
Officer, and shall be called by the Secretary of the Corporation
on the written request of any member of such committee. Notice
of a special meeting of any committee shall be given to each
member thereof by mailing such notice at least forty-eight (48)
hours, or by personally delivering, telegraphing or telephoning
the same at least eighteen (18) hours, before the meeting. It
shall not be requisite for the validity of any meeting of any
committee that notice thereof shall have been given to any
committee member who is present at the meeting or, if absent,
waives notice thereof in writing filed with the records of the
meeting either before or after the holding thereof. The
majority of the members of a committee shall constitute a quorum
for the transaction of committee business, and the act of a
majority of the members present at any meeting at which there is
a quorum shall be the act of the committee. A committee shall
keep regular minutes of its meetings and all action taken or
resolutions adopted shall be reported to the Board of Directors
at the meeting of the Board next following such action.
ARTICLE V
Officers
SECTION 1. Executive Officers. At the organization
meeting of the Board of Directors following the annual meeting
of stockholders, the Board of Directors shall elect as executive
officers of the Corporation a Chairman and Chief Executive
Officer, a President and Chief Operating Officer, a Secretary
and a Treasurer, and may elect as executive officers of the
Corporation one or more Chairmen Emeritus, Vice Chairmen,
Executive Vice Presidents, Senior Vice Presidents and Vice
Presidents. All such executive officers elected by the Board of
Directors are referred to in these By-Laws as "Executive
Officers." The Board of Directors may from time to time appoint
such other officers and agents of the Corporation as the
interests of the Corporation may require and may fix their
duties and terms of office. To the extent permitted by law, any
number of offices may be held by the same person.
SECTION 2. Other Officers. In addition to the
Executive Officers elected by the Board of Directors pursuant to
Section 1 of this Article V, the Chairman and Chief Executive
Officer and the President and Chief Operating Officer may from
time to time appoint such other officers of the Corporation,
including, Assistant Vice Presidents, Assistant Secretaries,
Assistant Treasurers and Controllers, as the interests of the
Corporation may require (the "Other Officers"); provided,
however, that no Other Officer may be appointed to the office of
Chairman Emeritus, Vice Chairman, President and Chief Operating
Officer, Executive Vice President, Senior Vice President, Vice
President, Secretary or Treasurer. Each appointment of an Other
Officer shall be in writing and shall set forth the duties of
the Other Officer being appointed and, subject to Section 3 of
this Article V, such officer's term of office.
SECTION 3. Term of Office. Each Executive Officer
shall hold office until the organization meeting of the Board of
Directors following the annual meeting of stockholders next
succeeding such officer's election and until such officer's
successor is elected and qualified, or until such officer's
earlier death, resignation, retirement or removal. Each Other
Officer shall hold office for a term to be decided by the
appointing Chairman and Chief Executive Officer or President and
Chief Operating Officer, as the case may be; provided, however,
that no such term shall be for a period longer than the term of
office of the appointing Chairman and Chief Executive Officer or
President and Chief Operating Officer.
SECTION 4. Removal of Officers. Any Executive
Officer or Other Officer may be removed from office with or
without cause at any time by the affirmative vote of a majority
of the Board of Directors. Any Other Officer may be removed
from office at any time with or without cause by the Chairman
and Chief Executive Officer or President and Chief Operating
Officer.
SECTION 5. Vacancies. A vacancy in any Executive
Office or Other Office arising from any cause may be filled for
the unexpired portion of the term by the Board of Directors. A
vacancy in any Other Office arising from any cause may be filled
for the unexpired portion of the term by the Chairman and Chief
Executive Officer or President and Chief Operating Officer.
SECTION 6. Compensation of Officers. The salaries or
compensation, if any, of the Executive Officers shall be fixed
by the Board of Directors or the Compensation Committee of the
Board of Directors, if their be one. The salaries or
compensation of the Other Officers and division officers, if
there be any, may be fixed from time to time by the Board of
Directors, the Chairman and Chief Executive Officer or the
President and Chief Operating Officer.
SECTION 7. Chairman and Chief Executive Officer. The
Chairman and Chief Executive Officer shall be Chairman of the
Board of Directors and of the Executive Committee, if any, shall
be the chief executive officer of the Corporation and, subject
to the control of the Board of Directors, shall have general
charge and control of the business and affairs of the
Corporation with power and authority, when acting in the
ordinary course of business of the Corporation, in the name and
on behalf of the Corporation and under its seal attested by the
Secretary or an Assistant Secretary of the Corporation, or
otherwise, to (i) execute and deliver agreements, contracts,
certificates and other instruments, (ii) purchase and accept
delivery of stocks, bonds, evidences of interest and
indebtedness, rights and options to acquire the same, and all
other securities, whether negotiable or non-negotiable, (iii)
sell, assign, transfer and deliver all stocks, bonds, evidence
of interest and indebtedness, rights and options to acquire the
same, and all other securities, corporate or otherwise, now or
hereafter standing in the name of or owned beneficially by the
Corporation, (iv) open and maintain accounts with banking
institutions, including investment banks and brokerage firms,
and (v) borrow from banks and other financial institutions,
including investment banks and brokerage firms, such sums of
money for such periods of time and upon such terms as such
officer shall deem necessary or appropriate, and execute and
deliver notes, other evidences of indebtedness and agreements
for the repayment of any sums so borrowed in the name and on
behalf of the Corporation; provided, however, that no borrowing
pursuant to this clause (v) shall have an original maturity of
more than one year. Such officer shall preside at all meetings
of stockholders of the Corporation and the Board of Directors at
which such officer is present. Such officer shall perform all
other duties and enjoy all other powers which are commonly
incident to the office of Chairman and Chief Executive Officer,
or are delegated to such officer from time to time by the Board
of Directors or are or may at any time be authorized or required
by law.
SECTION 8. Chairman Emeritus and Vice Chairmen of the
Board. The Chairman Emeritus and Vice Chairmen of the Board, if
there be any, shall be members of the Board of Directors and
shall have such powers and perform such duties as may from time
to time be assigned to them by the Board of Directors, the
Chairman and Chief Executive Officer or the President and Chief
Operating Officer.
SECTION 9. President and Chief Operating Officer.
The President and Chief Operating Officer shall be a member of
the Board of Directors and of the Executive Committee, if any,
shall be the chief operating officer of the Corporation
responsible for directing, administering and coordinating the
business operations of the Corporation in accordance with
policies, goals and objectives established by the Board of
Directors and the Chairman and Chief Executive Officer with
power and authority, when acting in the ordinary course of
business of the Corporation, in the name and on behalf of the
Corporation and under its seal attested by the Secretary or an
Assistant Secretary of the Corporation, or otherwise, to, (i)
execute and deliver agreements, contracts, certificates and
other instruments, (ii) purchase and accept delivery of stocks,
bonds, evidences of interest and indebtedness, rights and
options to acquire the same, and all other securities, whether
negotiable or non-negotiable, (iii) sell, assign, transfer and
deliver all stocks, bonds, evidences of interest and
indebtedness, rights and options to acquire the same, and all
other securities, corporate or otherwise, now or hereafter
standing in the name of or owned beneficially by the
Corporation, (iv) open and maintain accounts with banking
institutions, including investment banks and brokerage firms,
and (v) borrow from banks and other financial institutions,
including investment banks and brokerage firms, such sums of
money for such periods of time and upon such terms as such
officer shall deem necessary or appropriate, and execute and
deliver notes, other evidences of indebtedness and agreements
for the repayment of any sums so borrowed in the name and on
behalf of the Corporation; provided, however, that no borrowing
pursuant to this clause (v) shall have an original maturity of
more than one year. Such officer shall perform all other duties
and enjoy all other powers which are commonly incident to the
office of President and Chief Operating Officer or which are
delegated to such officer by the Board of Directors or the
Chairman and Chief Executive Officer. In the absence of the
Chairman and Chief Executive Officer, the President and Chief
Operating Officer shall perform all duties and may exercise all
powers of the Chairman and Chief Executive Officer and shall
preside at meetings of stockholders of the Corporation and the
Executive Committee.
SECTION 10. Executive Vice Presidents, Senior Vice
Presidents and Vice Presidents Elected by the Board. The
Executive Vice Presidents, the Senior Vice Presidents and the
Vice Presidents elected by the Board of Directors pursuant to
Section 1 of this Article V, if there be any, shall have such
powers and perform such duties as may from time to time be
assigned to them by the Board of Directors, the Chairman and
Chief Executive Officer or the President and Chief Operating
Officer.
SECTION 11. Secretary. The Secretary shall record
the proceedings of all meetings of stockholders of the
Corporation and of the Board of Directors which such officer
attends in a book or books to be kept for that purpose. Such
officer shall attend to the giving and serving of all notices on
behalf of the Corporation, shall have custody of the records and
the seal of the Corporation and shall affix the seal to any
instrument which requires the seal of the Corporation. Such
officer shall, in general, perform all the duties and functions
incident to the office of Secretary and shall also perform such
other duties as may from time to time be assigned to such
officer by the Board of Directors, the Chairman and Chief
Executive Officer or the President and Chief Operating Officer.
SECTION 12. Treasurer. The Treasurer shall have
custody and control of all funds and securities of the
Corporation, except as otherwise provided by the Board of
Directors. Such officer shall keep full and accurate accounts
of all receipts and disbursements of the Corporation in books to
be kept for that purpose, shall deposit all money and other
valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the
Board of Directors, and shall render to the Chairman and Chief
Executive Officer, the President and Chief Operating Officer or
the Board of Directors, whenever any of them may require it, an
account of all such officer's transactions as Treasurer and an
account of the financial condition of the Corporation. Such
officer shall also perform such other duties as may from time to
time be assigned to such officer by the Board of Directors, the
Chairman and Chief Executive Officer or the President and Chief
Operating Officer.
SECTION 13. Powers and Duties of Other Officers. The
Other Officers shall have such powers and perform such duties as
may from time to time be assigned to them by the Board of
Directors, the Chairman and Chief Executive Officer or the
President and Chief Operating Officer.
ARTICLE VI
Capital Stock
SECTION 1. Certificates. Each stockholder of the
Corporation shall be entitled to a certificate or certificates
signed by or in the name of the Corporation by the Chairman and
Chief Executive Officer, the President and Chief Operating
Officer, an Executive Vice President or a Senior Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, certifying the number of shares of stock
of the Corporation owned by such stockholder. Any or all of the
signatures on the certificates may be a facsimile.
In case any officer, Transfer Agent or Registrar who
has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, Transfer Agent
or Registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he, she or it was
such officer, Transfer Agent or Registrar at the date of issue.
All certificates of each class or series shall be
consecutively numbered and shall be entered in the books of the
Corporation as they are issued. Every certificate shall certify
the name of the Person owning the shares represented thereby,
with the number of shares and the date of issue. The names and
addresses of all Persons owning shares of the Corporation, with
the number of shares owned by each and the date or dates of
issue of the shares held by each, shall be entered in the books
of the Corporation kept for that purpose by the proper officers,
agents or employees of the Corporation.
The Corporation shall be entitled to treat the holder
of record of any share or shares of stock of the Corporation as
the holder in fact thereof and, accordingly, shall not be bound
to recognize any equitable or other claim to or interest in such
share or shares on the part of any other Persons, whether or not
it has actual or other notice thereof, except as provided by
law.
SECTION 2. Cancellation of Certificates. All
certificates surrendered to the Corporation shall be cancelled
and, except in the case of lost, stolen or destroyed
certificates, no new certificates shall be issued until the
former certificate or certificates for the same number of shares
of the same class of stock have been surrendered and cancelled.
SECTION 3. Lost, Stolen or Destroyed Certificates.
The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an
affidavit of the fact by the Person claiming the certificate or
certificates to be lost, stolen or destroyed. In its discretion
and as a condition precedent to the issuance of any such new
certificate or certificates, the Board of Directors may require
that the owner of such lost, stolen or destroyed certificate or
certificates, or such Person's legal representative, advertise
the same in such manner as the Board shall require and/or give
the Corporation and its Transfer Agent or Agents, Registrar or
Registrars a bond in such form and amount as the Board of
Directors may direct as indemnity against any claim that may be
made against the Corporation and its Transfer Agent or Agents,
Registrar or Registrars, and that the owner requesting such new
certificate or certificates obtain a final order or decree of a
court of competent jurisdiction as such owner's right to receive
such new certificate or certificates.
SECTION 4. Transfer of Shares. Shares of stock shall
be transferable on the books of the Corporation by the holder
thereof, in person or by duly authorized attorney, upon the
surrender of the certificate or certificates representing the
shares to be transferred, properly endorsed, with such proof or
guarantee of the authenticity of the signature as the
Corporation or its agents may reasonably require.
SECTION 5. Transfer Agents and Registrars. The
Corporation may have one or more Transfer Agents and one or more
Registrars of its stocks, whose respective duties the Board of
Directors may define from time to time. No certificate of stock
shall be valid until countersigned by a Transfer Agent, if the
Corporation shall have a Transfer Agent, or until registered by
the Registrar, if the Corporation shall have a Registrar. The
duties of Transfer Agent and Registrar may be combined.
SECTION 6. Closing of Transfer Books and Fixing of
Record Date. The Board of Directors shall have power to close
the stock transfer books of the Corporation for a period not
exceeding sixty (60) days preceding the date of any meeting of
stockholders, or the date for payment of any dividend, or the
date for the allotments of rights, or the date when any change
or conversion or exchange of capital stock shall go into effect,
or for a period not exceeding sixty (60) days in connection with
obtaining the consent of stockholders for any purpose, provided,
however, that in lieu of closing the stock transfer books as
aforesaid, the Board of Directors may fix in advance a date,
which shall not be more than sixty (60) days nor less than ten
(10) days before the date of any meeting of stockholders nor
more than sixty (60) days before the date for the payment of any
dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall
go into effect, or a date in connection with obtaining such
consent, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such
meeting and any adjournment thereof, 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, or to give such
consent, 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 and any adjournment thereof, or to receive payment of
such dividend, or to such allotment of rights, or to exercise
such rights, or to give such consent, 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.
ARTICLE VII
Contracts, Checks, Drafts, Proxies
SECTION 1. Execution of Contracts. The Board of
Directors may authorize any Executive or Other Officer, agent or
employee of the Corporation to enter into any contract or
execute and deliver any instrument in the name or on behalf of
the Corporation, and such authority may be general or confined
to specific instances, and, unless so authorized by the Board of
Directors, no Executive or Other Officer, agent or employee
except the Chairman and Chief Executive Officer and the
President and Chief Operating Officer shall have any power or
authority to bind the Corporation by any contract or to pledge
its credit or to render it liable pecuniarily for any purpose or
to any amount.
SECTION 2. Loans. Except as otherwise provided in
these By-Laws, no loan shall be contracted in the name or on
behalf of the Corporation, and no evidence of indebtedness shall
be issued, endorsed or accepted in its name, or on its behalf,
unless authorized by the Board of Directors. Such authority may
be general or confined to specific instances. When so
authorized, the Executive or Other Officer, agent or employee
thereunto authorized may effect loans and advances at any time
for the Corporation from any Person (including any bank, trust
company or other institution) and for such loans and advances
may make, execute and deliver promissory notes or other
evidences of indebtedness of the Corporation, and, when
authorized as aforesaid, as security for the payment of any and
all loans and advances may make, execute and deliver promissory
notes or other evidences of indebtedness and liabilities of the
Corporation, may mortgage, pledge, hypothecate or transfer any
real or personal property at any time owned or held by the
Corporation, and to that end execute instruments of mortgage or
pledge or otherwise transfer such property.
SECTION 3. Checks, Drafts, etc. All checks, drafts,
bills of exchange or other orders for the payment of money,
obligations, notes or other evidences of indebtedness, bills of
lading, warehouse receipts and insurance certificates of the
Corporation, shall be signed or endorsed by the Chairman and
Chief Executive Officer, the President and Chief Operating
Officer or such other Executive Officer or Other Officer, agent,
attorney, or employee of the Corporation as shall from time to
time be determined by the Board of Directors, the Chairman and
Chief Executive Officer or the President and Chief Operating
Officer.
SECTION 4. Proxies in Respect of Securities of Other
Corporations. The Chairman and Chief Executive Officer, the
President and Chief Operating Officer and such other Executive
or Other Officers as are designated by the Chairman and Chief
Executive Officer or the President and Chief Operating Officer
are authorized to vote by casting a ballot in person or by
voting by proxy on behalf of the Corporation the shares owned by
the Corporation of the stock or other securities in any other
Corporation at meetings of the holders of the stock or other
securities of such other corporation, or to consent in writing,
in the name of the Corporation as such holder, to any action by
such other corporation.
ARTICLE VIII
Indemnification
The Corporation shall, and by reason of the enactment of
this By-Law hereby does, indemnify each and every individual
(including his or her heirs, executors and assigns) 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, by
reason of the fact that he or she is or was a director,
Executive Officer or Other Officer of the Corporation, or, while
a director, Executive Officer or Other Officer of the
Corporation, 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 in connection
with such action, suit or proceeding, to the full extent that it
has the power to do so under Delaware Law. Such indemnification
shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under the Certificate of
Incorporation or under any agreement, contract of insurance,
vote of stockholders or disinterested directors, or otherwise,
or of the broader power of the Corporation to indemnify a
director, Executive Officer, Other Officer, employee or agent of
the Corporation as authorized by Delaware Law.
ARTICLE IX
Definitions
For purposes of these By-Laws, the following terms shall
have the meanings set forth below:
"Corporation" shall mean Triarc Merger Corporation.
"Delaware Law" shall mean the General Corporation Law of
the State of Delaware, as amended from time to time.
"Executive Officers" shall have the meaning set forth in
Section 1 of Article V of these By-Laws.
"Other Officer" shall have the meaning set forth in Section
2 of Article V of these By-Laws.
"Person" shall mean any individual, firm, corporation or
other entity.
"Certificate of Incorporation" shall mean the Certificate
of Incorporation of the Corporation, as from time to time
amended.
"Voting Shares" shall mean any issued and outstanding
shares of capital stock of the Corporation entitled to vote
generally in the election of directors.
ARTICLE X
Miscellaneous
SECTION 1. Books and Records. The books and records
of the Corporation may be kept at such places within or without
the State of Delaware as the Board of Directors may from time to
time determine. The stock record books and the blank stock
certificate books shall be kept by the Secretary or by any other
officer or agent designated by the Board of Directors.
SECTION 2. Dividends and Reserves. The Board of
Directors, from time to time, may determine whether any, and, if
any, what part of its net profits of the Corporation, or of its
net assets in excess of its capital, available therefor pursuant
to law and the Certificate of Incorporation, shall be declared
by it as dividends on the stock of the Corporation. The Board
of Directors, in its discretion, in lieu of declaring any such
dividend, may use and apply any of such net profits or net
assets as a reserve for working capital, to meet contingencies,
for the purpose of maintaining or increasing the property or
business of the Corporation or for any other lawful purpose
which it may think conducive to the best interests of the
Corporation.
SECTION 3. Seal. The corporate seal of the
Corporation shall be in the form of a circle and shall bear the
name of the Corporation and the year and state of its
incorporation.
SECTION 4. Fiscal Year. The fiscal year of the
Corporation shall end on the last day of December in each year
unless the Board of Directors shall determine otherwise.
ARTICLE XI
Amendments
All By-Laws of the Corporation shall be subject to
alteration, amendment or repeal, in whole or in part, and new
By-Laws not inconsistent with Delaware Law or any provision of
the Certificate of Incorporation may be made, by (i) the
affirmative vote of stockholders holding not less than two-
thirds of the voting power of the Voting Shares (as defined in
Article IX above) of the Corporation then entitled to vote on
such issue, or (ii) the affirmative vote of not less than a
majority of all of the directors of the Corporation then holding
office and entitled to vote on such issue.
<PAGE>
Exhibit 10.5
MANAGEMENT SERVICES AGREEMENT
This MANAGEMENT SERVICES AGREEMENT (the "Agreement") is
made as of November 15, 1994 by and between National Propane
Corporation ("National") a company organized under the law of
the State of Delaware and Public Gas Company (the "Company") a
corporation organized under the laws of the State of Florida.
W I T N E S S E T H :
WHEREAS, National and the Company desire to enter into this
Agreement to set forth the terms and conditions upon which
National will provide to the Company certain contract management
services,
NOW, THEREFORE, the parties hereto agree as follows:
1. Term. The provisions of this Agreement shall be
effective as of July 1, 1994 and shall continue until December
31, 1994 (the "Original Term"), and thereafter shall
automatically be extended for successive one year periods (the
Original Term, as so extended, the "Term") unless either party
notifies the other at least 90 days prior to the then scheduled
end of the Term of its desire that this Agreement be terminated
or in the event that the Company and National through merger or
other business combination become a part of the same entity,
this Agreement shall terminate on the date such merger or other
business combination is effective.
2. Services to be Provided. National shall provide to
the Company during the Term the services listed in this
Agreement and such other management services as the Company may
reasonably request (collectively, the "Services"). Such
Services shall include, but not be limited to, the following:
a. Legal. Expertise and assistance in legal
matters, including any reporting obligations of the
Company under the Securities Exchange Act of 1934, as
amended, and the advisory services of a corporate
counsel and such other support staff as National shall
reasonably consider to be appropriate and necessary to
handle such matters.
b. Accounting. Expertise and assistance in
financial presentation and planning and such services
as are reasonably necessary for the Company to comply
with its financial reporting obligations to third
parties, including, without limitation, report
preparation, compliance with generally accepted
accounting principles, footnote disclosure,
compilation and review.
c. Finance. Expertise and assistance in
treasury functions, (including ensuring that the
Company is in compliance with current lender
requirements, monitoring of debt covenants,
negotiation of waivers and exceptions, monitoring of
cash flow and negotiation of lines of credit) and
providing of such other financial expertise as may be
required from time to time.
d. Tax. Services and expertise required for
all federal, state and local tax return preparation,
planning and audits.
e. Risk Management. Services of a risk manager
and appropriate support staff to obtain and maintain
insurance policies covering property and casualty,
workers compensation, comprehensive general liability
and other insurable risks.
f. Information Technology. Expertise and
assistance in connection with the design, installation
and maintenance of computer and data systems.
g. Benefits Design and Administration.
Services and expertise relating to the design and
administration of employee benefit plans, including,
without limitation, executive compensation
arrangements, retirement plans, and health insurance
programs.
h. General Business Operations. General management,
planning, coordination, direction and implementation of the
purchasing, pricing, marketing, advertising and operations
functions and such other expertise as National shall deem
reasonable in directing the resources of the Company
together with National's as a unified propane distribution
business. In connection therewith, National grants to the
Company the right to utilize the National logo and the
National "Green Fuel" trademark as National and the Company
shall deem necessary or advisable in its advertising within
the Company's distribution area.
i. Other. Such other services as the parties
may agree are necessary for the efficient and
profitable operations of the Company.
3. Fees. In consideration for providing the Services and
subject to the initial payment with respect to the calendar
quarters commencing July 1 and October 1, 1994 to be made within
five (5) days of the signing of this Agreement and presentation
of the initial billing, the Company agrees to reimburse to
National on January 1, April 1, July 1 and October 1 (or if any
such date is not a business day, the next succeeding business
day), beginning January 1, 1995 with respect to the then current
calendar quarter an amount (the "Fee") equal to the expenses
incurred by National in managing the Company and its business.
The Fee shall represent the costs incurred by National and
allocated between the Company and National and will include, in
addition to any specifically identified services, a
proportionate amount of (i) the administrative costs charged to
National by Triarc Companies, Inc., (ii) administrative costs,
other than those related to the Services, incurred by National's
corporate staff located in Cedar Rapids, Iowa, and (iii) the
administrative costs incurred by National's regional Vice
Presidents function. Allocation of administrative costs between
the Company and National shall be based on the average of the
ratios of (i) the number of Company districts to total
districts, (ii) the Company's revenue to the total revenue of
National and the Company, (iii) the Company's EBITDAAC to total
EBITDAAC of National and the Company (EBITDAAC = earnings before
interest, taxes, depreciation, amortization and administrative
costs) and (iv) the Company's gallons sold, to total gallons
sold of National and the Company, in each case stated as
percentage times the fiscal year projected administrative
expenses. Such annual amount shall be divided by 4 and the
resulting amount shall be billed by National as set forth in
Section 5 below. As soon as practical after the end of
National's fiscal year, the actual administrative expenses
(compared to the projected administrative expenses) shall be
determined and a settlement payment between the Company and
National will be made by the party owing an amount to other
party.
5. Billing. National shall submit to the Company, on or
about the 25th day of the month preceding each calendar quarter,
an invoice for Services to be provided during the next calendar
quarter. The Company shall pay the amount on the first business
day of the first month of the calendar quarter stated in such
invoice.
6. Limitation on Liability. National will use
commercially reasonable efforts, skill and judgment to discharge
properly its duties hereunder, but shall have no liability with
respect to, and shall not be obligated to indemnify or hold
harmless the Company, or the officers, directors, employees,
agents or other representatives of the Company from or against
any cost, loss, expense, damage or liability arising out of or
otherwise in respect of the performance of the Services, except
any such cost, loss, expense, damage or liability resulting from
the gross negligence, willful misfeasance, willful malfeasance
or fraud of National or its officers, employees or agents.
7. Not Employees of the Company. Employees of National
engaged in performing the Services shall under no circumstances
be considered to be employees of the Company.
8. Independent Contractor. In performing the Services,
National shall be an independent contractor and neither party
hereto shall be deemed to be an agent, partner or co-venturer of
the other due to the terms and provisions of this Agreement.
9. Entire Agreement; Waivers and Amendments. This
Agreement sets forth the entire understanding between the
Company and National relating to the subject matter hereof.
This Agreement may not be modified or amended, and no provision
hereof may be waived, except by an instrument in writing signed
by both parties, or in the case of a waiver, by the party
against whom such waiver is sought to be enforced.
10. Governing Law. This Agreement shall be governed in
all respects by the laws of the State of New York, without
regard to the conflict of laws principles thereof.
11. Notices. All notices, demands and other
communications given to or made by either party to the other in
connection with this Agreement shall be given in writing and
either personally served on an officer or other authorized
representative of the party to which it is given or mailed by
registered first class mail, postage prepaid, to the
headquarters of such party to the attention of its chief
financial officer, or to such other address and to the attention
of such persons as the party in question may from time to time
specify to the other by notice hereunder. All notices shall be
deemed delivered and effective (i) if hand-delivered, upon
delivery, or (ii) if mailed, three business days after mailing.
12. Headings. The headings contained in this Agreement
are for reference purposes only and shall not in any way affect
the meaning or interpretation of this Agreement.
13. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement effective as of the date first above written.
PUBLIC GAS COMPANY NATIONAL PROPANE CORPORATION
By: John Cohlan By: T. E. Shultz
Senior Vice President Vice President & Treasurer
<PAGE>
Exhibit 10.6
MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT SERVICES AGREEMENT is made as of the 1st
day of January, 1995 by and between Management Providers, Inc.
(the "Manager"), Southeastern Public Service Company ("SEPSCO"),
Gilbert L. Bieger ("Bieger") and Marco A. Rojas ("Rojas").
WHEREAS, SEPSCO desires to wind-down its operations, sell
its remaining assets and finalize certain items with regard to
various former business operations; and
WHEREAS, SEPSCO desires Manager to manage the performance
of such tasks in connection with the wind-down of its
operations, on such terms and subject to the conditions set
forth herein; and
WHEREAS, Manager is willing to manage the performance of
such tasks, on such terms and subject to the conditions set
forth herein.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Manager and SEPSCO hereby agree as follows:
1. Appointment of Manager; Ratification of Prior Acts.
Subject to the provisions hereof, SEPSCO hereby appoints Manager
to manage the services specified in Section 2 hereof for the
Term (as hereinafter defined) of this Agreement. Subject to the
provisions set forth below, Manager accepts such appointment for
the Term of this Agreement. SEPSCO ratifies and accepts all
acts taken by Manager or by the principals of the Manager in
performance of the wind down effort of SEPSCO through and
including the date on which this Agreement is signed.
2. Duties of Manager. Subject to Section 6 hereof,
Manager agrees to manage the wind-down effort of SEPSCO for the
Term of this Agreement, in accordance with applicable laws and
regulations and good business practice as provided herein.
Manager agrees to manage the performance by SEPSCO employees of
the following tasks:
a. Corporate Accounting Support and Administration.
(1) Maintain and deliver, upon the request of
SEPSCO, all information relating to SEPSCO's business
activity necessary for (a) the preparation of all
returns, reports, notices and applications made by
SEPSCO or Triarc Companies, Inc. ("Triarc") in
connection with filings for federal, state, or local
taxes, (b) the preparation of all filings with the
Securities and Exchange Commission made by SEPSCO or
Triarc, and (c) proper and customary financial
accounting;
(2) Maintain the general ledgers for SEPSCO and
its subsidiaries and SEPSCO's sub-consolidation,
including, without limitation, monthly closing and
input for Triarc's and SEPSCO's micro-control
consolidation;
(3) Help to obtain and maintain all licenses,
permits, authorizations and certificates, and help to
make all filings, reports or payments required under
applicable rules and regulations of any governmental
department, bureau, or agency in connection with the
current or former business of SEPSCO;
(4) Facilitate and process SEPSCO's payment of
necessary and customary corporate and Houston Oil &
Gas expenses such as salaries, benefits, audit fees,
consulting fees, rent, legal services, costs
associated with environmental remediation and other
miscellaneous costs, including, but not limited to,
processing payroll and making appropriate payroll tax
filings, reviewing and approving invoices and issuing
SEPSCO's checks for such costs and expenses;
(5) Prepare and deliver all W-2 and 1099 tax
forms required for the current and former and current
employees of SEPSCO;
(6) Process COBRA benefit and 401(k) plan
distributions paperwork for all eligible former
employees of SEPSCO;
(7) Monitor (a) payments due on the note issued
in connection with the sale of the San Martin facility
and report any defaults in payment to SEPSCO, (b)
payments, if any from Construction Companies in
connection with sale and collection of receivables,
(c) payments due on note made by Ice Companies in
connection with the sale of such business and report
any defaults in payment to SEPSCO and (d) releases of
up to Seven Hundred and Fifty Thousand ($750,000) from
the escrow established in connection with the sale of
the oil and gas business;
(8) Assist and provide information for use in
processing claims, if any, against Construction
Companies;
(9) Assist in locating and providing information
regarding former or current employees or tax issues;
(10) Provision of information requested by SEPSCO
or Triarc to Triarc's tax personnel;
(11) Provide information needed for settlement of
remaining payments or credits under the terms of
purchase agreements for the ice business, the cold
storage business and oil & gas businesses (including
Houston Oil & Gas); and
(12) In general, perform other administrative
services as are necessary or appropriate to the
conduct of the business and affairs of SEPSCO.
b. Management of Remediation Plan.
(1) Coordinate all remediation efforts for
properties formerly used in the ice, cold storage and
propane businesses (including all currently idle
properties), including, but not limited to, obtaining
permits, negotiating and entering into contracts for
clean up and testing services and equipment,
contacting governmental entities, as needed and
responding to communications from governmental
entities; and
(2) Account for, bill and collect funds for such
cleanup activities that are due to SEPSCO under
agreements between SEPSCO and purchasers of ice and
cold storage businesses.
c. Sale of Idle Facilities. Take all steps required
to prepare for the sale of all idle property held by SEPSCO
(currently 22 properties), including, but not limited to,
marketing the properties, contracting with agents or
brokers for the sale of the properties, contracting for
surveys, title insurance and environmental studies and
remediation and negotiating and drafting sales contracts.
d. Follow-up to Sales of Former Businesses.
(1) Coordinate remaining obligations of SEPSCO
under agreements for the sale of the former businesses
of SEPSCO, including, but not limited to, obtaining
and delivery of titles for vehicles and equipment sold
under agreements;
(2) Contact personnel running former businesses
of SEPSCO, the buyers and other persons as required to
obtain documentation necessary to release collateral
under performance bond program;
(3) Coordinate implementation of agreement
between SEPSCO and Southwestern Ice under which
Phoenix 43 plant is sold to SEPSCO in exchange for the
sale to Southwestern Ice of the Marathon and
Hollywood, Florida plants and the Phoenix 43 plant is
leased to Southwestern Ice;
(4) Monitor sales by Southwestern Ice of
Florida, and others to third parties to and take all
other steps necessary to protect SEPSCO's security
interest or the perfection of that security interest
in collateral; and
(5) Finalize settlement of all issues with
Wright & Lopez including, but not limited to, payment
for outstanding insurance invoice, payment for 1.25
times book value and delivery of vehicle and equipment
titles and UCC-3's.
e. Sale of Houston Oil & Gas. Assist in negotiation
and sale of Houston Oil & Gas business to management,
including, but not limited to, provision of factual
information for inclusion in the sale contract.
f. Litigation Assistance.
(1) Initiate, defend, prosecute, manage, pay,
extend, renew, modify, adjust, submit to arbitration,
confess or compromise any obligation, suit, liability,
cause of action, or claim, including, but not limited
to, taxes and environmental liabilities, either in
favor of or against SEPSCO, all as directed by SEPSCO;
(2) Monitor the Columbia Gas litigation and
settlement; and
(3) Contact former employees and locate
corporate documents necessary to support pending and
future litigation.
g. Employee Supervision.
(1) In consultation with SEPSCO, supervise all
Employees (as that term is hereinafter defined),
assist in maintaining or preparing all necessary
employee-related information and reports, negotiate
any employment or severance agreements, and advise
SEPSCO on discipline, scheduling and all other
material matters relating to employment; and
(2) Provide information to SEPSCO necessary for
its administration and continuation of health, life,
and other insurance and benefits plans.
h. Facilities.
(1) Maintain the real and personal property of
SEPSCO, including, but not limited to, taking such
action as is necessary to keep all buildings,
fixtures, equipment, documents and other property in
safe working order;
(2) Negotiate an extension of the lease for
approximately fifty-five percent (55%) of the property
currently rented by SEPSCO at 2001 N.W. 107th Ave.,
Miami, Florida ("Headquarters") on terms acceptable to
SEPSCO; and
(3) Prepare any formerly rented space at the
Headquarters for return to the landlord, including,
but not limited to, cleaning and restoring the space
and disposing of (by sale or otherwise) the computer
equipment and other furniture and fixtures in computer
room space.
i. Shutdown of Headquarters.
(1) At a time mutually agreed upon by Manager
and SEPSCO, dispose of all personal property, other
than one Xerox 5365 machine and one fax machine, but
including, but not limited to, all other office
equipment, furniture, supplies and fixtures owned by
SEPSCO and located at the Headquarters. In the
reasonable discretion of the Manager, such disposal
may be made by private sale, public sale or auction;
and
(2) Coordinate transfer of all accounting and
administrative records to SEPSCO's designees on or
about the end of the Term.
j. Other Tasks. Subject to the availability of
SEPSCO employees, any other reasonable tasks designated by
SEPSCO necessary to wind down the business of SEPSCO.
3. Manner of Performance. Manager and SEPSCO agree that
the duty to manage the tasks set forth in Section 2 shall be
performed, or caused to be performed, in the following manner
and subject to the following conditions:
a. Manager agrees that it will use diligence to
promptly complete the tasks set out in Section 2;
b. Manager agrees that it will use all commercially
reasonable means to have the tasks set out in Section 2
completed by December 31, 1995. Notwithstanding such
efforts by Manager, the parties acknowledge that, based on
the best information available at the time of execution of
this Agreement, those tasks set out in Schedule 1 hereto
may not be completed by December 31, 1995. In the event
that Manager becomes aware of any additional task that may
not be completed by December 31, 1995, such task shall be
added to Schedule 1 upon written notice by Manager within
ten (10) business days after Manager first becomes aware of
that such task will not be completed. Unless this
Agreement is otherwise extended, SEPSCO agrees that Manager
shall not have any responsibility for completing any task
which remains uncompleted by December 31, 1995;
c. Manager and SEPSCO agree that, notwithstanding
the fact that any task remains incomplete at the expiration
of the Term, Manager shall not have any obligation to
provide management services to SEPSCO at anytime after the
expiration of the Term hereof;
d. Manager shall provide to SEPSCO oral reports no
less frequently than on a monthly basis and written reports
no less frequently than on a quarterly basis detailing the
tasks completed and the status of the remaining tasks;
e. Manager shall get the oral or written consent of
SEPSCO before taking any action, or causing any action to
be taken, that involves an amount equal to or in excess of
Ten Thousand Dollars ($10,000); and
f. Manager and SEPSCO acknowledge that the tasks
hereunder shall be performed by SEPSCO employees under the
supervision of the Manager. Manager agrees to inform
SEPSCO promptly of any information that it receives
concerning the termination or separation of a SEPSCO
employee. In the event that any SEPSCO employee who is
providing services hereunder is no longer employed by
SEPSCO and is not promptly replaced by an employee who
possesses in the Manager's reasonable discretion comparable
skills and experience, Manager shall have no duty to
perform or cause to be performed those tasks which were (a)
formerly performed by that employee and (b) for which no
other SEPSCO employee has the skills or available time to
complete such tasks. Notwithstanding any such change in
duties, Manager shall continue to enjoy all rights provided
under this Agreement without interruption or reduction.
After the termination of any SEPSCO employee providing
services hereunder, Manager shall take all reasonable
measures to promptly notify SEPSCO of those tasks hereunder
which cannot be performed by the remaining SEPSCO
employees.
4. Term of Agreement. The term of this agreement shall
begin on the date hereof and continue until December 31, 1995
(the "Term").
5. Expenses of SEPSCO. SEPSCO and Manager specifically
acknowledge and agree that the Manager, its agents or Employees
(as hereinafter defined) will not incur any unreimbursed
expenses in performing its services under this Agreement, and,
to the extent that Manager does incur such expenses, SEPSCO
shall reimburse Manager for those costs within thirty days of
receiving proof of such costs and expenses. Such expenses shall
include, but not be limited to, reasonable travel expenses and
all other reasonable out of pocket costs or expenses incurred in
connection with the Manager's duties hereunder, but shall not
include the costs and expenses of regular, daily commuting to
and from the Headquarters.
6. Additional Consideration. The parties contemplate
that the Principals (as hereinafter defined) will together spend
no greater than 150 hours per month in performing the required
services hereunder. In the event that the time required to
perform such services over any three month rolling period
beginning on January 1, 1995 exceeds such estimate by more than
twenty five percent (25%) then the parties agree that the
Manager will be entitled to additional consideration in a manner
and amount to be agreed upon by the parties as determined in
good-faith negotiations. In the event that Manager is entitled
to additional compensation under this Section, time logs of the
Manager will be conclusive evidence of the time spent hereunder,
absent demonstrable error.
7. Use of Space at Headquarters.
a. Use of Space. In consideration for the services
provided by Manager hereunder, SEPSCO agrees to provide the
use of the Headquarters to Manager and National Cold
Storage, Inc., the parent corporation of Manager, on a
rent-free basis during the term of this Agreement. Such
use shall include, but not be limited to, the use of the
mail, telephone, copier, courier and all other office
support services.
b. Value. The parties acknowledge that the value of
this rent-free right to use the Headquarters for the term
hereof is Twenty Five Thousand ($25,000) of which Three
Thousand ($3,000) is the value of the utilities and office
support services.
c. Extension and Maintenance of Lease. The parties
acknowledge that, in connection with an extension of its
lease for the Headquarters during the Term hereof, SEPSCO
intends to reduce the amount of space leased to
approximately fifty-five percent (55%) of the space leased
as of the date hereof. In all aspects other than such
reduction and the resulting reduction in rent payments,
SEPSCO agrees to make all reasonable efforts to keep its
lease in full force and effect as such exists on the date
hereof during the Term of this Agreement.
d. Indemnity. The Manager, on behalf of itself, its
parent and its affiliates, shall indemnify and hold SEPSCO
harmless for damage (other than ordinary wear and tear)
which is caused by Manager, its parent or its affiliates to
the Headquarters. The Principals hereby guaranty such
indemnity of the Manager to the extent that any damage is
caused by the willful misconduct of the Principals,
provided however, that the Principals shall not be liable
for any amount in excess of Ten Thousand Dollars ($10,000).
8. Employees.
a. Status of SEPSCO Employees. During the Term of
the Agreement, SEPSCO will pay the salaries and benefits of
the following employees operating in the wind-down of
SEPSCO (the "Employees"): Peter Nyhart, Doug Schneeberger,
Mavis Williams, Chris Swanson, Patricia Capina, Rosemarie
Hackett (through June 30, 1995), Kenneth Mitchell (though
February 28, 1995) and Henry Kiers (through March 31,
1995). Such Employees will remain the employees of SEPSCO
until such time as SEPSCO shall deem otherwise.
b. Employee Salary and Benefits. Each Employee
will, during the Term hereof, be paid a salary by SEPSCO in
an amount equal to the rate paid to each Employee as of
December 31, 1994 plus individual increases as shown on
Exhibit A hereto. In addition, SEPSCO shall make all
reasonable efforts to ensure that each Employee shall
receive the same benefits from SEPSCO as in existence as of
December 31, 1994.
c. Accrued Vacation. In February, 1995, SEPSCO will
pay to each Employee the value of unutilized, accrued
vacation as of December 31, 1994, as listed on Exhibit B to
the Employees.
d. Independent Contractors. SEPSCO acknowledges
that the services of independent contractors are necessary
to complete certain of the tasks specified herein. SEPSCO
agrees that, at the request of Manager, it will directly
engage such independent contractors. SEPSCO further agrees
that, subject to Section 3(d) above, upon confirmation by
Manager that adequate services were rendered by such
independent contractor, SEPSCO will pay directly to such
independent contractor for the tasks performed by such
independent contractor; provided that, under no
circumstances shall Manager be responsible for the payment
of any compensation of the independent contractors.
e. Severance Packages. On or before January 31,
1995, SEPSCO agrees to enter into severance agreements
substantially in the form of Exhibit C with the Employees
specified in such Exhibit.
9. Power of Attorney. SEPSCO hereby appoints Manager
together with its officers, employees, directors and agents as
its attorney solely for the purpose of executing in the name of
SEPSCO any contract or document necessary to carry out any of
the tasks designated herein.
10. Indemnification. SEPSCO agrees to indemnify, defend
and hold Manager, its officers, directors, employees and agents
harmless against any losses, damages and expenses suffered by
SEPSCO or Manager and resulting from any action by Manager, its
officers, directors, employees and agents under this Agreement
unless such action was the result of gross negligence or willful
misconduct on the part of Manager, its officers, directors,
employees and agents. Manager agrees to indemnify, defend and
hold SEPSCO, its officers, directors, employees and agents
harmless against any losses, damages and expenses suffered by
SEPSCO and resulting from any action by Manager, its officers,
directors, employees and agents under this Agreement resulting
from the gross negligence or willful misconduct on the part of
Manager, its officers, directors, employees and agents. This
Section shall survive the termination of this Agreement.
11. Cooperation During Term of Agreement. SEPSCO agrees
to fully cooperate with Manager during the Term of this
Agreement in matters relating to Manager's performance of the
tasks set forth herein. Such cooperation shall include, but
shall not be limited to, exercise of additional power of
attorney documents as required.
12. Ownership of Manager. Manager acknowledges that its
principals are Bieger and Rojas, each of whom is actively
involved in the management of Manager (each a "Principal").
Manager agrees that it shall not be managed by any person or
entity other than a Principal, and will promptly notify SEPSCO
in the event that one of the Principals is no longer actively
involved in the management of Manager. Management acknowledges
that it intends to use the Principals to carry out the services
to be provided by the Manager.
13. Miscellaneous.
a. Relationship of the Parties. The parties
acknowledge that the relationship created by this Agreement
is one of principal and independent contractor.
b. Governing Law. This Agreement shall be governed
by the laws of the State of New York, without regard for
the conflict of laws provisions thereof.
c. Severability. If any term or provision of this
Agreement shall be deemed unenforceable or illegal by any
court of competent jurisdiction, this Agreement shall not
be deemed to be void or terminated thereby, but shall be
interpreted and enforced as if such unenforceable or
illegal term or provision had never been included herein.
d. Notices. Any notice required or permitted under
this Agreement shall be deemed to have been effectively
made or given if in writing and personally delivered,
mailed properly addressed in a sealed envelope, postage
prepaid by certified or registered mail, delivered by a
reputable overnight delivery service or sent by facsimile.
Unless otherwise changed by notice, notice shall be
properly addressed to the Manager if addressed to:
Management Providers, Inc.
c/o National Cold Storage, Inc.
2001 N.W. 107th Avenue
Miami, Florida 33172
Attn: Gilbert L. Bieger/Marco A. Rojas
Fax No.: (305) 593-5702
and properly addressed to SEPSCO if addressed to:
Southeastern Public Service Company
c/o Triarc Companies, Inc.
900 Third Avenue
New York, New York 10022
Attn: Eric D. Kogan
Fax No.: (212) 230-3216
with a copy to:
General Counsel
Triarc Companies, Inc.
900 Third Avenue
New York, New York 10022
Fax No.: (212) 230-3216
e. Integration Clause. This Agreement constitutes
the entire agreement, and supersedes all prior agreements,
of the parties hereto relating to the subject matter
hereof, and there are no written or oral terms or
representations made by either party other than those
contained herein.
f. Assignment. This Agreement may not be assigned
by Manager except to an affiliate of Manager, which is
managed and controlled by a Principal, without the prior
written consent of SEPSCO.
g. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall constitute an
original but all of which shall constitute one and the same
instrument.
h. Amendment in Writing. This Agreement shall only
be amended by a written document signed by the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have entered this
Management Services Agreement as of the date and year first set
forth above.
MANAGEMENT PROVIDERS, INC.
Marco A. Rojas
By: Marco A. Rojas
Its: Executive Vice President and CFO
SOUTHEASTERN PUBLIC SERVICE COMPANY
Eric D. Kogan
By: Eric D. Kogan
Its: Vice President - Corporate Development
As to Section 7(d) only:
Gilbert L. Bieger
GILBERT L. BIEGER
As to Section 7(d) only:
Marco A. Rojas
MARCO A. ROJAS
<PAGE>
State of Florida )
) ss.
County of Dade )
The foregoing instrument was acknowledged before me this
29th day of March 1995, by Marco A. Rojas, the Executive Vice
President & CFO of Management Providers, Inc., a corporation.
My notarial commission expires 6/22/97.
Witness my hand and official seal,
Patricia P. Capina
Notary Public
State of New York )
) ss.
County of New York )
The foregoing instrument was acknowledged before me this
29th day of March 1995, by Eric D. Kogan, the Vice President
of Southeastern Public Service Company, a corporation.
My notarial commission expires 2/2/97.
Witness my hand and official seal,
Mary C. Wade
Notary Public
<PAGE>
