-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TS3QGsL10rUgMKyGDVf4tqjDewzHQ1RSCuwjsv5YWe7utcKgn8sAvVr9KTmmQzc6 ox1c48XAOiUQG/86kssTcA== 0000893220-96-001049.txt : 19960624 0000893220-96-001049.hdr.sgml : 19960624 ACCESSION NUMBER: 0000893220-96-001049 CONFORMED SUBMISSION TYPE: U-1/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19960621 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: COLUMBIA GAS SYSTEM INC CENTRAL INDEX KEY: 0000022099 STANDARD INDUSTRIAL CLASSIFICATION: NATURAL GAS TRANSMISSION & DISTRIBUTION [4923] IRS NUMBER: 131594808 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: U-1/A SEC ACT: 1935 Act SEC FILE NUMBER: 070-08849 FILM NUMBER: 96584097 BUSINESS ADDRESS: STREET 1: 20 MONTCHANIN RD CITY: WILMINGTON STATE: DE ZIP: 19807 BUSINESS PHONE: 3024295000 U-1/A 1 COLUMBIA GAS SYSTEM AMENDMENT #2 FORM U-1 1 File No. 70-8849 SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 Amendment No. 2 Form U-1 APPLICATION-DECLARATION UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 THE COLUMBIA GAS SYSTEM, INC. 20 Montchanin road Wilmington, DE 19807 COLUMBIA ENERGY SERVICES CORPORATION 121 Hill Pointe Drive, Suite 100 Canonsburg, PA 15317 COLUMBIA COAL GASIFICATION CORPORATION COLUMBIA NATURAL RESOURCES, INC. 900 Pennsylvania Avenue Charleston, WV 25362 - ------------------------------------------------------------------------------ (Names of company or companies filing this statement and addresses of principal executive offices) L. J. Bainter, Treasurer The Columbia Gas System, Inc. 20 Montchanin Road Wilmington, DE 19807 Robert Gustafson, Controller Columbia Energy Services Corporation 121 Hill Pointe Drive, Suite 100 Canonsburg, PA 15317 M. A. Chandler, Treasurer Columbia Coal Gasification Corporation Columbia Natural Resources, Inc. 900 Pennsylvania Avenue Charleston, WV 25362 - ------------------------------------------------------------------------------ (Name and address of agent for service) 2 Page 1 ITEM 1. DESCRIPTION OF PROPOSED TRANSACTION - THE SECOND PARAGRAPH UNDER SECTION 2) SHOULD BE REPLACED IN ITS ENTIRETY WITH THE FOLLOWING: The expected benefits to be achieved as a result of the merger, therefore, include: (i) a more reliable and flexible business law applicable to the corporate governance of CES (DE), and (ii) the avoidance of the Kentucky intangible property tax which is imposed at a rate of 25 cents per $100 of value on certain intangible personal property, including but not limited to, accounts receivable, patents, trademarks, copyrights and licensing or royalty agreements. With respect to this Kentucky tax, a special rate of one and one-half cents per one hundred dollars of value may apply depending on the taxable situs of the property and whether the business transactions were substantially performed outside the state. The amount of the tax savings achieved cannot be quantified since the savings vary depending on the future development of The Fast LaneTM. EXHIBIT INDEX (a) Exhibits B-1 Form of Plan of Reorganization and Merger for Columbia Energy Services Corporation (Kentucky) into Columbia Energy Services Corporation (Delaware). B-2 Form of Agreement and Plan of Merger of Columbia Natural Resources, Inc. and Columbia Coal Gasification Corporation. F Opinion of Counsel G Financial Data Schedules (filed April 19, 1996) 3 Page 2 SIGNATURES Pursuant to the requirements of the Public Utility Holding Company Act of 1935, each of the undersigned companies has duly caused this Application-Declaration to be signed on its behalf by the undersigned thereunto duly authorized. The signatures of the Declarants and of the persons signing on their behalf are restricted to the information contained in this Application-Declaration which is pertinent to the application of the respective companies. THE COLUMBIA GAS SYSTEM, INC. Date: June 20, 1996 By: /s/ L. J. Bainter ----------------------------- L. J. Bainter Treasurer COLUMBIA ENERGY SERVICES CORPORATION COLUMBIA COAL GASIFICATION CORPORATION COLUMBIA NATURAL RESOURCES, INC. Date: June 20, 1996 By: /s/ L. J. Bainter ----------------------------- L. J. Bainter Vice President EX-99.B1 2 FORM OF PLAN OF REORGANIZATION AND MERGER 1 AGREEMENT AND PLAN OF MERGER OF COLUMBIA ENERGY SERVICES CORPORATION (KENTUCKY) INTO COLUMBIA ENERGY SERVICES CORPORATION (DELAWARE), THE SURVIVING CORPORATION Pursuant to the provisions of Subtitle 11 of Title XXIII of the Kentucky Revised Statutes ("KRS") and Section 252 of the Delaware General Corporation Law ("DGCL"), Columbia Energy Services Corporation, a Kentucky corporation (the "Kentucky Corporation"), and Columbia Energy Services Corporation, a Delaware corporation (the "Delaware Corporation"), hereby set forth their plan of merger, the sole purpose of which is to change the state of domicile and incorporation of Columbia Energy Services Corporation from the Commonwealth of Kentucky to the State of Delaware. In pursuit of the above and as required by KRS Section 271B.11-050 and Section 252 of the DGCL, the following is adopted: a. The surviving corporation shall be the Delaware Corporation. b. All of the assets and liabilities of the Kentucky Corporation shall be transferred to the Delaware Corporation and said Delaware Corporation shall accept such assets and liabilities and be obligated thereby as if they were obtained and incurred by the Delaware Corporation. c. All authorized shares of the Delaware Corporation shall be issued to the Kentucky Corporation which shall simultaneously exchange said shares for all issued and outstanding stock of the Kentucky Corporation which shall be retired leaving the Delaware Corporation the surviving corporation. d. The laws of the State of Delaware shall govern the surviving corporation. e. (i) This Agreement and Plan may be terminated by the Board of Directors of either Corporation prior to filing with the Secretary of State of the State of Delaware. (ii) This Agreement and Plan may be amended by agreement of the Board of Directors of the parties hereto; provided, however, that if said amendment occurs subsequent to adoption of this Agreement and Plan by the shareholder of either party, such amendment shall not (1) alter or change the amount or kind of shares, securities, cash, property and/or rights to be received in exchange for, or on conversion of, all or any of the shares of any class or series thereof of such constituent corporation, (2) alter or change any term of the certificate of incorporation of the surviving corporation to be effected by the merger or consolidation, or (3) alter or change any of the terms and conditions of this Agreement and Plan if such alteration or change would adversely affect the holders of any class or series thereof of such corporation. 2 2 f. This Agreement and Plan is contingent upon receipt from the U.S. Securities and Exchange Commission of an order approving an Application/Declaration filed by the Parties hereto and The Columbia Gas System, Inc., under the Public Utility Holding Company Act of 1935 in such form as is acceptable to the said parties and The Columbia Gas System, Inc., in their sole discretion. g. Pursuant to KRS Section 271B.11-070(2), upon the effective date of the merger contemplated herein, the Delaware Corporation hereby consents: (i) To the appointment of the Secretary of State of the Commonwealth of Kentucky as its agent for service of process in a proceeding to enforce any obligation or the rights of dissenting shareholders of the Kentucky Corporation; (ii) To promptly pay to the dissenting shareholders of the Kentucky Corporation the amount, if any, to which they are entitled under KRS Subtitle 13; and (iii) To the extent required by Section 200 of the Kentucky Constitution, that the courts of the Commonwealth of Kentucky shall retain jurisdiction over that part of the corporate property within the limits of the Commonwealth of Kentucky in all matters which may arise, as if the transaction had not taken place. Accepted and agreed to this ______ day of June, 1996: COLUMBIA ENERGY SERVICES CORPORATION (KENTUCKY) By: __________________________________ Its: President COLUMBIA ENERGY SERVICES CORPORATION (DELAWARE) By: ___________________________________ Its: Incorporator EX-99.B2 3 FORM OF AGREEMENT AND PLAN OF MERGER 1 AGREEMENT AND PLAN OF MERGER OF COLUMBIA NATURAL RESOURCES, INC. AND COAL GASIFICATION CORPORATION AGREEMENT AND PLAN OF MERGER dated as of June ____, 1996 among Columbia Natural Resources, Inc., a Texas Corporation (CNR) and wholly-owned subsidiary of The Columbia Gas System, Inc. (Columbia) and Columbia Coal Gasification Corporation, a Delaware corporation and wholly-owned subsidiary of CNR (CGC). WHEREAS, CNR and CGC deem it advisable for the overall operating efficiency and economy of administration of the properties of CGC and for CNR to realize certain state tax benefits that CGC be merged into CNR, with CNR being the surviving corporation. WHEREAS, CGC has authorized capital of 1,939,000 shares of common stock, par value of $25 per share, of which said stock is issued and outstanding to CNR, and CNR has authorized capital of 8,000,000 shares of common stock, par value of $25 per share, of which 5,378,628 shares are outstanding and issued to Columbia. WHEREAS, the respective Boards of Directors of CNR and CGC have approved the merger of CGC into CNR upon the terms, and subject to the conditions, set forth in this Agreement, and approved and adopted the Plan of Merger contained herein. NOW, THEREFORE, CNR and CGC, parties to this Agreement and Plan of Merger in consideration of the premises and of the mutual agreements contained herein and the mutual benefits thereby provided, agree as follows: 1. Merger. Pursuant to Section 5.16 of the Texas Business Corporation Act and Section 253 of the Delaware General Corporation Law, Columbia Coal Gasification Corporation (CGC) shall be, and hereby, is merged into Columbia Natural Resources, Inc. (CNR), which shall be the surviving corporation. 2. Effective Date. This Agreement and Plan of Merger is contingent upon receipt from the U.S. Securities and Exchange Commission of order approving an Application/Declaration filed by the Parties hereto and The Columbia Gas System, Inc. (Columbia), under the Public Utility Holding Company Act of 1935 in such form as is acceptable to the said parties and Columbia in their sole discretion. Thereafter, this Agreement and Plan of Merger shall become effective immediately upon compliance with the laws of the states of Texas and Delaware, the time of such effectiveness being hereinafter called the Effective Date. 3. Retirement of CGC Stock. Forthwith upon the Effective Date, each of the 1,939,000 shares of the Common Stock of CGC presently issued and outstanding and all rights in respect thereof, shall be retired, and no shares of Common Stock or other securities of CGC shall be issued in respect thereof. 2 2 4. Outstanding Capital. The outstanding capital stock of CNR following the Effective Date shall be 5,378,628 shares of common stock, par value of $25 per share, unless and until the same shall be changed in accordance with the laws of the State of Texas. 5. Certificate of Incorporation. The Certificate of Incorporation of CNR, as it exists prior to the Effective Date, shall be the same following the Effective Date, unless and until the same shall be amended or repealed in accordance with the provisions thereof, which power to amend or repeal is hereby expressly reserved, and all rights or powers of whatsoever nature conferred in such Certificate of Incorporation or herein upon any shareholder or director or officer of CNR or upon any other persons whomsoever are subject to the reserve power. 6. Bylaws. The Bylaws of CNR, as they exist prior to the Effective Date, shall be amended as necessary, to be the Bylaws of CNR following the Effective Date unless and until the same shall be amended or repealed in accordance with the provisions thereof. 7. Board of Directors and Officers. The members of the Board of Directors and the officers of CNR immediately before the Effective Date shall be those persons who will be the members of the Board of Directors and the officers, respectively, of CNR immediately after the Effective Date and such persons shall serve in such offices, respectively, for the terms provided by law or in CNR's Bylaws, or until their respective successors are elected and qualified. 8. Further Assurance of Title. If, at any time, CNR shall consider or be advised that any acknowledgments or assurances in law or other similar actions are necessary or desirable in order to acknowledge or confirm in and to CNR any right, title, or interest of CGC held immediately prior to the Effective Date, CGC and its proper officers and directors shall, and will, execute and deliver all such acknowledgments or assurances in law and do all things necessary or proper to acknowledge or confirm such right, title, or interest in CNR as shall be necessary to carry out the purposes of this Agreement and Plan of Merger, and CNR and the proper officers and directors thereof are fully authorized to take any and all such action in the name of CGC or otherwise. 9. Rights and Liabilities of CNR. At and after the Effective Date, CNR shall succeed to and possess, without further act or deed, all of the estate, rights, privileges, powers, and franchises, both public and private, and all of the property, real, personal, and mixed, of each of the parties hereto; all debts due to CGC or whatever account shall be vested in CNR; all claims, demands, property, rights, privileges, powers and franchises and every other interest of either of the parties hereto shall be as effectively the property of CNR as they were of the respective parties hereto; the title to any real estate vested by deed or otherwise in CGC shall not revert or be in any way impaired by reason of the merger, but shall be vested in CNR; all rights of creditors and all liens upon any property of either of the parties hereto shall be preserved unimpaired, limited in lien to the property affected by such lien at the Effective Date of the merger; all debts, liabilities, and duties of the respective parties hereto shall thenceforth attach to CNR and may be enforced against it to the same extent as if such debts, liabilities, and duties had been incurred or contracted by it; and CNR shall indemnify and hold harmless the officers and 3 3 directors of each of the parties hereto against all such debts, liabilities and duties and against all claims and demands arising out of the merger. 10. Book Entries. The merger contemplated hereby shall be made upon the books of CNR in accordance with the following: (a) the assets and liabilities of CGC shall be recorded at the amounts at which they are carried on the books of CGC as of the Effective Date. (b) there shall be credited to the Capital Account the Total Common Stock Equity of CGC as of the Effective Date, resulting in a balance in the Capital Account equal to the aggregate amount of the part value of all of the Common Stock of CGC and CNR. (c) there shall be credited to the Capital Surplus Account an amount equal to that carried in the Capital Surplus Account of CGC as of the Effective Date. (d) there shall be debited to the Earned Surplus Account an amount equal to that carried on the Earned Surplus Account of CGC as of the Effective Date. 11. Service of Process on CNR. CNR agrees that it may be served with process in the State of Delaware in any proceeding for enforcement of any obligation of CGC as well as for the enforcement of any obligation of CNR arising prior to the merger, and it does irrevocably appoint the Secretary of State for the State of Delaware as agent to accept service of process in any such suit or other proceeding. 12. Termination. This Agreement and Plan of Merger may be terminated and abandoned by action of the Board of Directors of CNR or CGC at any time prior to the Effective Date. 13. Plan of Reorganization. This Agreement and Plan of Merger constitutes a Plan of Reorganization for purposes of Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended, to be carried out in the manner, on the terms and subject to the conditions herein set forth. IN WITNESS WHEREOF, CNR and CGC, pursuant to the approval and authority duly given by resolutions adopted by their respective Boards of Directors have caused this Agreement and Plan of Merger to be executed by an authorized officer of each party thereto. COLUMBIA NATURAL RESOURCES, INC. BY: ________________________ PRESIDENT: 4 SEAL ATTEST: _____________________________ SECRETARY COLUMBIA COAL GASIFICATION CORPORATION. BY: ________________________ PRESIDENT: SEAL ATTEST: _____________________________ SECRETARY EX-99.F 4 OPINION OF COUNSEL 1 June 20, 1996 U.S. Securities and Exchange Commission Judiciary Plaza 450 Fifth Street, N.W. Washington, D.C. 20549 Re: The Columbia Gas System, Inc. File No. 70-8849 ----------------------------- Ladies and Gentlemen: As counsel for The Columbia Gas System, Inc. ("Columbia"), a Delaware corporation and a holding company registered under the Public Utility Holding Company Act of 1935 (the "Act"), and at its request, I deliver to you this opinion for filing as Exhibit F to the Application-Declaration, as previously amended by Amendment No. 1 and as now amended by Amendment No. 2 (the last being filed simultaneously herewith) (collectively referred to as the "Application-Declaration"), of Columbia requesting authorization, as more fully described in the Application-Declaration, to change the state of domicile of its energy marketing subsidiary and to merge its coal subsidiary into its Appalachian oil and gas subsidiary (the "Proposed Transactions"). In connection with the above, I have examined: (i) the Application-Declaration, as amended; (ii) such other documents, records and matters of law as I deemed necessary to enable me to render this opinion. Based upon the foregoing and relying thereupon, I am of the opinion that if the Proposed Transactions are consummated in accordance with the Application-Declaration: (a) all state and federal laws applicable to such Proposed Transactions will have been complied with; (b) Columbia, Columbia Energy Services Corporation, Columbia Natural Resources, Inc. and Columbia Coal Gasification Corporation are validly organized and duly existing in their respective states of incorporation; (c) the common stock issued in the Proposed Transactions will be validly issued, fully paid and non-assessable and the liabilities assumed in the Proposed Transactions, including debt securities assumed by the respective successors-in-interest, will be valid and binding obligations of such successors-in- interest in accordance with the terms of such obligations. 2 U.S. Securities and Exchange Commission June 18, 1996 Page Two (d) Columbia Energy Services Corporation (DE) through its merger with Columbia Energy Services Corporation (KY) will legally acquire all of the assets of said corporation. Columbia Natural Resources, Inc. will legally acquire the common stock of Columbia Coal Gasification Corporation and through its subsequent merger with Columbia Coal Gasification Corporation will legally acquire all of the assets of said corporation; and (e) the consummation of the Proposed Transactions will not violate the legal rights of the holders of any securities issued by Columbia, or by any associate company thereof. I hereby consent to the filing of this opinion as an Exhibit to the Application-Declaration. Very truly yours, /s/ Joyce Koria Hayes ----------------------------------- Joyce Koria Hayes, Esquire Associate General Counsel & Assistant Secretary Columbia Gas System Service Corporation JKH/th -----END PRIVACY-ENHANCED MESSAGE-----