SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-B
REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR ISSUERS
FILED PURSUANT TO SECTION 12(B) OR (G) OF
THE SECURITIES EXCHANGE ACT OF 1934
___________________________________
NORAM ENERGY CORP.
FORMERLY KNOWN AS: HI MERGER, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 76-0511406
(State of incorporation or organization) (I.R.S. Employer Identification No.)
1111 LOUISIANA
HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip Code)
___________________________________
Securities to be registered pursuant to Section 12(b) of the Securities Exchange
Act of 1934:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
6% Convertible Subordinated New York Stock Exchange
Debentures due 2012
Securities to be registered pursuant to Section 12(g) of the Securities Exchange
Act of 1934:
Not applicable.
ITEM 1. GENERAL INFORMATION.
(a) HI Merger, Inc. ("Merger Sub"), a wholly owned subsidiary of
Houston Industries Incorporated ("HII"), was incorporated in Delaware on August
9, 1996. On the closing date of the Succession Transaction (as described below),
Merger Sub changed its name to NorAm Energy Corp. ("New NorAm").
(b) New NorAm's fiscal year ends December 31 of each year.
ITEM 2. TRANSACTION OF SUCCESSION.
(a) Predecessor Entities: Merger Sub and NorAm Energy Corp., a
Delaware corporation ("NorAm").
(b) Succession Transaction: For a description of the Succession
Transaction, reference is made to the Joint Proxy Statement/Prospectus included
as part of the Registration Statement on Form S-4 of HII and Houston Lighting &
Power Company, No. 333-11329 (and Amendments No. 1 and 2 thereto) (the "Joint
Proxy Statement/Prospectus"). Reference is specifically made to the sections of
the Joint Proxy Statement/Prospectus entitled "Summary -- The Transaction" and
"The Transaction."
ITEM 3. SECURITIES TO BE REGISTERED.
New NorAm has authorized $130,000,000 principal amount of 6%
Convertible Subordinated Debentures due 2012 ("Debentures"), of which
$117,000,000 are issued and outstanding and $6,500,000 are held by or for the
account of New NorAm.
ITEM 4. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
For a description of the Debentures, see the information set forth
under the heading "Description of Debentures" contained in the Prospectus
included as part of the Registration Statement on Form S-3 of NorAm, File
No. 33-12096, as filed on February 19, 1987 and amended thereafter, except that
the subsections entitled "-- Outstanding Debt Securities" and "-- Subordination"
are deleted and replaced in their entirety with the following:
OUTSTANDING DEBT SECURITIES
The Company has, pursuant to an Indenture dated as of December 1, 1986
(the "1986 Indenture") and an Indenture dated as of April 15, 1990 (the "1990
Indenture"), outstanding Medium-term Notes due through 2001, 8.875% Notes due
1999, 7 1/2% Notes due 2000, 8.90% Notes due 2006, 9.875% Notes due 2018 and 10%
Notes due 2019 (collectively, the "Notes"). As of July 31, 1997, an aggregate of
approximately $1,587,969,000 principal amount of the Notes were issued and
outstanding. Although the 1986 Indenture and the 1990 Indenture do not create a
lien on the properties of the Company, the Notes will constitute Senior
Indebtedness for purposes of the Indenture. Consequently, payment of the
Debentures will be subordinated to the payment of the Notes and all other
outstanding Senior Indebtedness. The
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1986 Indenture and the 1990 Indenture have been filed as exhibits to this
Registration Statement and the above descriptions are qualified in their
entirety by reference to the 1986 Indenture and the 1990 Indenture. See
"Subordination" below.
SUBORDINATION
The payment of principal of (and premium, if any, on) sinking fund
requirements for and interest on, the Debentures will be subordinated in right
of payment to the payment of all Senior Indebtedness of the Company. "Senior
Indebtedness" is defined as the principal of, premium, if any, and unpaid
interest on the following: (a) all indebtedness of the Company (including the
indebtedness of others guaranteed by the Company) other than the Debentures,
whether outstanding on the date of the Indenture or thereafter created, incurred
or assumed, which is (i) for money borrowed, including, without limitation, the
Notes, or (ii) evidenced by a note or similar instrument given in connection
with the acquisition of any businesses, properties or assets of any kind; (b)
obligations of the Company as lessee under leases required to be capitalized on
the balance sheet of the lessee under generally accepted accounting principles
and leases of property or assets made as part of any sale and lease-back
transaction to which the Company is a party; and (c) amendments, renewals,
extensions, modifications and refundings of any such indebtedness or obligation,
unless in any case in the instrument creating or evidencing any such
indebtedness or obligation or pursuant to which the same is outstanding it is
provided that such indebtedness or obligation is not superior in right of
payment to the Debentures.
ITEM 5. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements: None.
(b) Exhibits: See Index to Exhibits.
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INDEX TO EXHIBITS
* Incorporated by reference as indicated
REPORT OR SEC FILE OR
EXHIBIT REGISTRATION REGISTRATION EXHIBIT
NO. DESCRIPTION STATEMENT NUMBER REFERENCE
- ------- ----------- ------------ ------------ ---------
*2(a)(1) Agreement and Plan of Merger among Form 8-K dated 1-3187 2
HI, HL&P, Merger Sub and NorAm, August 11, 1996
dated as of August 11, 1996, as
amended
*2(a)(2) Amendment to Agreement and Plan of Registration Statement 333-11329 2(c)
Merger among HII, HL&P, Merger Sub on Form S-4
and NorAm, dated as of August 11, 1996
*2(b) HII, HL&P and NorAm Joint Proxy Registration Statement 333-11329
Statement/Prospectus on Form S-4
3(a) Articles of Incorporation of New NorAm
3(b) Bylaws of New NorAm
*4(a) Indenture, dated as of December 1, Form 10-K for the year 1-3751 4.14
1986, between NorAm and Citibank, ended December 31, 1996
N.A., as Trustee
*4(b) Indenture, dated as of March 1, 1987, Registration Statement 33-14586 4.20
between NorAm and The Chase Manhattan on Form S-3
Bank, as Trustee, authorizing 6%
Convertible Subordinate Debentures
due 2012
*4(c) Indenture, dated as of April 15, 1990, Registration Statement 33-23375 4.1
between NorAm and Citibank, N.A., on Form S-3
as Trustee
*4(d) Indenture, dated as of June 15, 1996, Registration Statement 33-64001 4.8
between NorAm and The Bank of New York, on Form S-3
as Trustee
*4(e) Form of First Supplemental Indenture Form 8-K dated 1-3751 4.01
between NorAm and The Bank of New York, June 10, 1996
as Trustee
*10(a) Deferred Compensation Agreement Form 10-K for the year 1-3751 10.2
ended December 31, 1988
*10(b) Deferred Stock Appreciation Form 10-K for the year 1-3751 10.3
Agreement ended December 31, 1988
*10(c) Executive Supplemental Medical Plan Proxy Statement, Annual 1-3751 Page 13
Meeting of Stockholders,
dated May 12, 1987
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REPORT OR SEC FILE OR
EXHIBIT REGISTRATION REGISTRATION EXHIBIT
NO. DESCRIPTION STATEMENT NUMBER REFERENCE
- ------- ----------- ------------ ------------ ---------
*10(d) 1982 Nonqualified Stock Option Plan Registration Statement 2-84830
with Appreciation Rights on Form S-8
*10(e) Nonqualified Executive Disability Form 10-K for the year 1-3751 10.6
Income Plan ended December 31, 1988
*10(f) Nonqualified Unfunded Executive Form 10-K for the year 1-3751
Supplemental Income Retirement Plan ended December 31, 1988
*10(g) Unfunded Nonqualified Retirement Form 10-K for the year 1-3751 10.10
Income Plan ended December 31, 1985
*10(h) Annual Incentive Award Plan As maintained in the 1-3751
files of the Commission
*10(i) Long-Term Incentive Compensation Registration Statement 33-10806
Plan on Form S-8
*10(j) Service Agreement, by and between Form 10-K for the year 1-3751 10.20
Mississippi River Transmission ended December 31, 1989
Corporation and Laclede Gas
Company, dated August 22, 1989
*10(l) Agreement and Plan of Merger, dated Registration Statement 33-27428 A
as of July 30, 1990, between NorAm, on Form S-4
Diversified Energies, Inc. and
Minnegasco, Inc.
*10(m) Incentive Equity Plan Proxy Statement, Annual 1-3751 Appendix B
Meeting of Stockholders,
dated May 10, 1994
*10(n) Non-Employee Director Restricted Proxy Statement, Annual 1-3751 Appendix D
Stock Plan Meeting of Stockholders,
dated May 10, 1994
*10(o) Form of Severance Agreement for Form 10-Q for the quarter 1-3751 99.2
each of the Chief Executive Officers ended June 30, 1996
and the four most highly compensated
executive officers of NorAm (T. Milton
Honea, Charles M. Oglesby, Michael B.
Bracy, William A. Kellstrom, Hubert
Gentry, Jr.) and for 10 other executive
officers of NorAm
21 Subsidiaries of New NorAm
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this application for registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
NORAM ENERGY CORP.
/s/ RUFUS S. SCOTT
Date: August 12, 1997 By: _______________________________
Rufus S. Scott
Assistant Treasurer
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EXHIBIT 3(a)
State of Delaware
________________________________
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF THE STATE OF DELAWARE, DO HEREBY CERTIFY
THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF
"HI MERGER, INC.", FILED IN THIS OFFICE ON THE NINTH DAY OF AUGUST, A.D. 1996,
AT 12 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
___________________________________
Edward J. Freel, Secretary of State
2651891 8100 AUTHENTICATION: 8062127
960232907 DATE: 08-09-96
CERTIFICATE OF INCORPORATION
OF
HI MERGER, INC.
FIRST: The name of the Company is HI Merger, Inc. (hereinafter the
"Company").
SECOND: The address of the registered office of the Company in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, City of
Wilmington, County of New Castle, Zip Code 19801, and the name of the registered
agent of the Company at such address is The Corporation Trust Company.
THIRD: The purpose of the Company is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the
"DGCL").
FOURTH: The total number of shares of all classes of stock which the
Company shall have authority to issue is 1,000 shares of common stock, par value
$0.01 per share ("Common Stock"). Except as otherwise provided by law, the
shares of Common Stock may be issued for such consideration and for such
corporate purposes as the Board of Directors of the Company (the "Board of
Directors") may from time to time determine.
In the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up of the Company, the holders of the
Common Stock shall be entitled to receive all the assets of the Company,
tangible and intangible, of whatever kind available for distribution to
stockholders, ratably in proportion to the number of shares of Common Stock held
by each.
Each holder of Common Stock shall have one vote in respect of each
share of Common Stock held by such holder on each matter voted upon by the
stockholders.
FIFTH: The name and address of the incorporator is
Timothy S. Taylor
3000 One Shell Plaza
910 Louisiana
Houston, Texas 77002.
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SIXTH: The powers of the incorporator are to terminate upon the
filing of the Certificate of Incorporation with the office of the Secretary of
State of the State of Delaware. The person whose name and mailing address are
set out immediately below is to serve as the sole director of the Company until
the first annual meeting of stockholders or until his successor is elected and
qualify:
Name Address
---- -------
Stephen W. Naeve 1111 Louisiana Street
Houston, Texas 77002
SEVENTH: The following provisions are inserted for the management of
the business and the conduct of the affairs of the Company, and for further
definition, limitation and regulation of the powers of the Company and of its
directors and stockholders:
(a) The business and affairs of the Company shall be managed by or
under the direction of the Board of Directors except as otherwise provided
by law.
(b) The Board of Directors shall have concurrent power with the
stockholders to make, alter, amend, change, add to or repeal the Bylaws of
the Company (the "Bylaws").
(c) The number of directors of the Company shall be as from time to
time fixed by, or in the manner provided in, the Bylaws. Election of
directors need not be by written ballot unless the Bylaws so provide.
(d) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby authorized
to exercise all such powers and do all such acts and things as may be
exercised or done by the Company, subject, nevertheless, to the provisions
of the statutes of Delaware, this Certificate of Incorporation and any
Bylaws adopted by the stockholders; provided, however, that no Bylaws
thereafter adopted by the stockholders shall invalidate any prior act of
the directors which would have been valid if such Bylaws had not been
adopted.
EIGHTH: Meetings of the stockholders may be held within or without
the State of Delaware, as the Bylaws may provide. The books of the Company may
be kept (subject to any provision contained in the statutes) outside the State
of Delaware at such place or places as may be designated from time to time by
the Board of Directors or in the Bylaws.
NINTH: A director of the Company shall not be personally liable to
the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (a) for any breach of the director's
duty of loyalty to the Company or its stockholder or stockholders, (b) for acts
or omissions not in good faith or which involve intentional misconduct
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or a knowing violation of law, (c) under Section 174 of the DGCL, as the same
exists or hereafter may be amended, or (d) for any transaction from which the
director derived an improper personal benefit. If the DGCL is amended after the
date of filing of this Certificate of Incorporation to authorize the further
elimination or limitation of the liability of directors, then the liability of a
director of the Company, in addition to the limitation on personal liability
provided herein, shall be limited to the fullest extent permitted by the amended
DGCL. Any repeal or modification of this Article NINTH by the stockholders of
the Company shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Company existing at
the time of such repeal or modification.
TENTH: The Company reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the laws of the State of Delaware. All
rights herein conferred are granted subject to this reservation.
I, the undersigned, being the incorporator hereinbefore named, for the
purpose of forming a corporation under the laws of the State of Delaware, do
make, file and record this Certificate of Incorporation, do certify that the
facts herein stated are true and accordingly, have hereunto set my hand this 9th
day of August, 1996.
/s/ Timothy S. Taylor
--------------------------
Timothy S. Taylor
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EXHIBIT 3(b)
BYLAWS
OF
HI MERGER, INC.
(hereinafter called the "Company")
ARTICLE I
CAPITAL STOCK
Section 1.1. Certificates Representing Shares. The shares of stock of the
Company shall be represented by certificates of stock, signed in the name of the
Company (a) by the Chairman of the Board, the President or a Vice President and
(b) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary, of the Company, certifying the number of shares of stock in the
Company owned by the holder named in the certificate. Any or all of the
signatures of such officers on the certificate may be facsimiles. In case any
officer who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the Company with the same effect as if he were such
officer at the date of its issuance.
Section 1.2. Lost, Stolen or Destroyed Certificates. The Board of
Directors of the Company (the "Board of Directors") may direct a new certificate
to be issued in place of any certificate theretofore issued by the Company
alleged to have been lost, stolen or destroyed, upon the receipt of an affidavit
of the fact by the person claiming the certificate of stock to be lost, stolen
or destroyed. When authorizing such issuance of a new certificate, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to give the Company a bond sufficient to indemnify it
against any claim that may be made against the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate.
Section 1.3. Transfers of Stock. Stock of the Company shall be
transferable in the manner prescribed by law and in these Bylaws. Transfers of
stock shall be made on the books of the Company only by the person named in the
certificate or by his attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued.
Section 1.4. Beneficial Owners. The Company shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares
to receive dividends, and to vote
as such owner, and to hold liable for calls and assessments a person registered
on its books as the owner of shares, and 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 person, whether or not it shall have express or other notice thereof,
except as otherwise provided by law.
Section 1.5. Dividends. Dividends upon the capital stock of the Company,
subject to the provisions of the Certificate of Incorporation of the Company, as
amended from time to time (the "Certificate of Incorporation"), if any, may be
declared by the Board of Directors at any regular or special meeting, and may be
paid in cash, in property or in shares of capital stock of the Company. Before
payment of any dividend, there may be set aside out of any funds of the Company
available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Company, or for any proper purpose, and the Board of Directors
may modify or abolish any such reserve.
ARTICLE II
STOCKHOLDERS
Section 2.1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2.2. Annual Meetings. The annual meetings of the stockholders
shall be held on such date and at such time as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting, at which
meetings the stockholders shall elect by a plurality vote a Board of Directors
and transact such other business as may properly be brought before the meeting.
Section 2.3. Special Meetings. Unless otherwise prescribed by law or by
the Certificate of Incorporation, special meetings of the stockholders, for any
purpose or purposes, may be called at any time by the Board of Directors, the
Chairman of the Board, the President or the Secretary of the Company and shall
be called by any such officer at the request in writing of a majority of the
Board of Directors or at the request in writing of stockholders owning a
majority of the capital stock of the Company issued and outstanding and entitled
to vote. Such request shall state the purpose or purposes of the proposed
meeting.
Section 2.4. Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for
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which the meeting is called. Unless otherwise provided by law, the Certificate
of Incorporation or these Bylaws, the written notice of any meeting shall be
given not less than ten nor more than sixty days before the date of the meeting
to each stockholder entitled to vote at such meeting. If mailed, such notice
shall be deemed to be given when deposited in the mail, postage prepaid,
directed to the stockholder at his address as it appears on the records of the
Company.
Section 2.5. Record Date. The Board of Directors may fix a date, not less
than ten nor more than sixty days preceding the date of any meeting of the
stockholders, as a record date for determination of stockholders entitled to
notice of, or to vote at, such meeting. The Board of Directors shall not close
the books of the Company against transfers of shares during the whole or any
part of such period.
Section 2.6. Quorum. Except as otherwise provided by law, by the
Certificate of Incorporation, or by these Bylaws, the presence in person or by
proxy of the holders of a majority of the outstanding shares of stock of the
Company entitled to vote thereat, shall be necessary and sufficient to
constitute a quorum at all meetings of the stockholders for the transaction of
business. In the absence of a quorum, the stockholders so present may, by
majority vote, adjourn the meeting from time to time in the manner provided in
Section 2.9 of this Article II until a quorum shall attend. Shares of its own
stock belonging to the Company or to another corporation, if a majority of the
shares entitled to vote in the election of directors of such other corporation
is held, directly or indirectly, by the Company, shall neither be entitled to
vote nor be counted for quorum purposes; provided, however, that the foregoing
shall not limit the right of the Company or any such other corporation to vote
stock, including but not limited to its own stock, held by it in a fiduciary
capacity.
Section 2.7. Organization. Meetings of stockholders shall be presided over
by the Chairman of the Board, if any, or in his absence by the President, or in
the absence of the foregoing persons by a chairman designated by the Board of
Directors, or in the absence of such designation by a chairman chosen at the
meeting. The Secretary shall keep the records of the meeting, but in his
absence the chairman of the meeting may appoint any person to act as secretary
of the meeting.
Section 2.8. Voting; Proxies. Except as otherwise provided by the
Certificate of Incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held by
him which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders may authorize another person or
persons to act for him by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer period.
A duly executed proxy shall be irrevocable if it states that it is irrevocable
and if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing an
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instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary. Voting at meetings of stockholders need not be
by written ballot and need not be conducted by inspectors of election unless so
determined by the holders of shares of stock having a majority of the votes
which could be cast by the holders of all outstanding shares of stock entitled
to vote thereon which are present in person or by proxy at such meeting. At all
meetings of stockholders for the election of directors, a plurality of the votes
cast shall be sufficient to elect. All other elections and questions shall,
unless otherwise provided by law, the Certificate of Incorporation or these
Bylaws, be decided by the vote of the holders of shares of stock having a
majority of the votes which could be cast by the holders of all shares of stock
entitled to vote thereon which are present in person or represented by proxy at
the meeting.
Section 2.9. Adjournments. Any meetings of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Company may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty 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 meeting.
Section 2.10. List of Stockholders Entitled to Vote. The officer of the
Company who has charge of the stock ledger of the Company shall prepare and
make, at least ten days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical order
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Company who is present.
Section 2.11. Stock Ledger. The stock ledger of the Company shall be the
only evidence as to which stockholders are entitled (a) to vote in person or by
proxy at any meeting of stockholders, or (b) to examine either the stock ledger,
the list required by Section 2.10 of this Article II or the books of the
Company.
Section 2.12. Action by Consent of Stockholders in Lieu of Meeting. Unless
otherwise restricted by the Certificate of Incorporation, any action required or
permitted to be taken at any annual or special meeting of the stockholders of
the Company may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken,
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shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE III
DIRECTORS
Section 3.1. Number and Tenure. The business and affairs of the Company
shall be managed by the Board of Directors. The number of directors
constituting the whole Board of Directors shall be fixed by the affirmative vote
of a majority of the members at any time constituting the Board of Directors,
and such number may be increased or decreased from time to time by resolution by
the Board of Directors; provided, however, that no such decrease shall have the
effect of shortening the term of any incumbent director. Except as provided in
Section 3.2 of this Article III, directors shall be elected by a plurality of
the votes cast at annual meetings of the stockholders, and each director so
elected shall hold office for the full term to which he shall have been elected
and until his successor is duly elected and qualified, or until his earlier
death, resignation or removal. Any director may resign at any time upon notice
to the Company. A director need not be a stockholder of the Company or a
resident of the State of Delaware.
Section 3.2. Vacancies. Any newly created directorship or any vacancy
occurring in the Board of Directors for any cause may be filled by an
affirmative vote of a majority of the remaining directors then in office, though
less than a quorum, or by a plurality of votes cast at a meeting of
stockholders, and each director so elected shall hold office for the remainder
of the full term in which the new directorship was created or the vacancy
occurred and until such director's successor is duly elected and qualified, or
until his earlier death, resignation or removal.
Section 3.3. Regular Meetings. Regular meetings of the Board of Directors
may be held at such places within or without the State of Delaware and at such
times as the Board of Directors may from time to time determine, and if so
determined, notices thereof need not be given.
Section 3.4. Special Meetings. Special meetings of the Board of Directors
may be held at any time, whenever called by the Chairman of the Board, the
President or a majority of directors then in office, at such place or places
within or without the State of Delaware as may be stated in the notice of the
meeting. Notice of the time and place of a special meeting must be given by the
person or persons calling such meeting at least twenty-four hours before the
special meeting.
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Section 3.5. Meetings by Conference Telephone. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, members of the Board of
Directors of the Company, or any committee designated by the Board of Directors,
may participate in a meeting of the Board of Directors or such committee 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 pursuant to this Section 3.5 shall constitute
presence in person at such meeting.
Section 3.6. Quorum; Vote Required for Action. Except as may be otherwise
specifically provided by law, the Certificate of Incorporation or these Bylaws,
at all meetings of the Board of Directors a majority of the whole Board of
Directors shall constitute a quorum for the transaction of business. The vote
of a majority of the directors present at any meeting of the Board of Directors
at which there is a quorum present shall be the act of the Board of Directors.
If a quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 3.7. Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, if any, or in his absence by the
President, or in their absences by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, but in his absence the chairman
of the meeting may appoint any person to act as secretary of the meeting.
Section 3.8. Actions of the Board by Consent in Lieu of Meeting. Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws, any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting, if all the
members of the Board of Directors or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or such committee.
Section 3.9. Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board of Directors, designate one or more committees,
each committee to consist of one or more of the directors of the Company. The
Board of Directors may designate one or more of the directors of the Company.
The Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of the
committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in place of any absent or
disqualified member. Any committee, to the extent permitted by law and to the
extent provided in the resolution of the Board of Directors establishing such
committee, shall have
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and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Company, and may authorize the
seal of the Company to be affixed to all papers which may require it. Each
committee shall keep regular minutes and report to the Board of Directors when
required.
The designation of any such committee and the delegation thereto of
authority shall not operate to relieve the Board of Directors, or any member
thereof, of any responsibility imposed upon it or him by law, nor shall such
committee function where action of the Board of Directors is required under
applicable law. The Board of Directors shall have the power at any time to
change the membership of any such committee and to fill vacancies in it. A
majority of the members of any such committee shall constitute a quorum. Each
such committee may elect a chairman and appoint such subcommittees and
assistants as it may deem necessary. Except as otherwise provided by the Board
of Directors, meetings of any committee shall be conducted in the same manner as
the Board of Directors conducts its business pursuant to this Article III as the
same shall from time to time be amended. Any member of any such committee
elected or appointed by the Board of Directors may be removed by the Board of
Directors whenever in its judgment the best interests of the Company will be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Election or appointment of a member
of a committee shall not of itself create contract rights.
Section 3.10. Compensation and Reimbursement of Expenses. The directors
shall receive such compensation for their services as shall be determined by the
Board of Directors and may be paid their expenses, if any, of attendance at each
meeting of the Board of Directors. No such reimbursement shall preclude any
director from serving the Company in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like reimbursement for attending committee meetings.
ARTICLE IV
OFFICERS
Section 4.1. General. The offices of the Company shall consist of a
Chairman of the Board, a President, a Secretary and a Treasurer, each of whom
shall be elected by the Board of Directors. Such other officers or agents,
including one or more Vice Presidents, Assistant Secretaries and Assistant
Treasurers, as may be deemed necessary, may be elected or appointed by the Board
of Directors. Any number of offices may be held by the same person, unless
otherwise prohibited by law, the Certificate of Incorporation or these Bylaws.
The officers of the Company need not be stockholders of the Company nor, except
in the case of the Chairman of the Board, need such officers be directors of the
Company. Each officer shall hold office until the first meeting of the Board of
Directors after the annual meeting of stockholders next succeeding his election,
and until his successor is elected and qualified or until his earlier death,
resignation
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or removal. Any officer may resign at any time upon written notice to the
Company. The Board of Directors may remove any officer with or without prejudice
to the contractual rights of such officer, if any, with the Company. Election or
appointment of an officer or an agent shall not of itself create contractual
rights. Any vacancy occurring in any office of the Company by death,
resignation, removal or otherwise may be filled for the unexpired portion of the
term by the Board of Directors at any regular or special meeting.
Section 4.2. Powers and Duties. The officers of the Company shall have
such powers and duties as generally pertain to their offices, except as modified
herein or by the Board of Directors, as well as such powers and duties as from
time to time may be conferred by the Board of Directors. The Chairman of the
Board shall be the Chief Executive Officer and shall preside at meetings of the
Board of Directors and at meetings of the stockholders. The President shall
have the general supervision over the business, affairs and property of the
Company. The Secretary shall record all proceedings at meetings and actions in
writing of stockholders, directors and committees of directors, and shall
exercise such additional authority and perform such additional duties as the
Board of Directors may assign.
Section 4.3. Voting Securities Owned by the Company. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Company may be executed in the name and on behalf of
the Company by the Chairman of the Board, the President or any Vice President
and any such officer may, in the name of and on behalf of the Company, take all
such action as any such officer may deem advisable to vote in person or by proxy
at any meeting of security holders of any corporation in which the Company may
own securities and at any such meeting shall possess and may exercise any and
all rights and powers incident to the ownership of such securities and which, as
the owner thereof, the Company might have exercised and possessed if present.
The Board of Directors may, by resolution, from time to time, confer like powers
upon any other person or persons.
ARTICLE V
INDEMNIFICATION
Section 5.1. Right to Indemnification. The Company shall indemnify and
hold harmless each Indemnitee (as this and all other capitalized words are
defined in Section 5.13 of this Article) to the fullest extent permitted by
applicable law as it presently exists or may hereafter be amended. The rights
of an Indemnitee provided under the preceding sentence shall include, but not be
limited to, the right to be indemnified to the fullest extent permitted by
Section 145(b) of the DGCL in Proceedings by or in the right of the Company and
to the fullest extent permitted by Section 145(a) of the DGCL in all other
Proceedings.
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Section 5.2. Expenses. If an Indemnitee is, by reason of his Corporate
Status, a witness in or is a party to any Proceeding, and is successful on the
merits or otherwise, he shall be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection therewith. If the
Indemnitee is a party to and is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to any Matter in such Proceeding, the
Company shall indemnify the Indemnitee against all Expenses actually and
reasonably incurred by him or on his behalf relating to each such Matter. The
termination of any Matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such Matter.
Section 5.3. Request for Indemnification. To obtain indemnification, an
Indemnitee shall submit to the Secretary a written request with such information
as is reasonably available to the Indemnitee regarding the basis for such claim
for indemnification. The Secretary shall promptly advise the Board of Directors
of such request. An Indemnitee shall be advanced Expenses, within ten days
after requesting them, to the fullest extent permitted by Section 145(e) of the
DGCL.
Section 5.4. Determination of Indemnification. The Indemnitee's
entitlement to indemnification shall be determined in accordance with Section
145(d) of the DGCL. If entitlement to indemnification is to be determined by
Independent Counsel, the Company shall furnish notice to the Indemnitee within
ten days after receipt of the request for indemnification, specifying the
identity and address of the Independent Counsel. The Indemnitee may, within
fourteen days after receipt of such written notice of selection, deliver to the
Company a written objection to such selection. Such objection may be asserted
only on the ground that the Independent Counsel so selected does not meet the
requirements of Independent Counsel and the objection shall set forth with
particularity the factual basis of such assertion. If there is an objection to
the selection of Independent Counsel, either the Company or the Indemnitee may
petition the Court of Chancery of the State of Delaware or any other court of
competent juris diction for a determination that the objection is without a
reasonable basis and/or for the appointment of Independent Counsel selected by
such court.
Except in the event that the determination of entitlement to
indemnification is to be made by Independent Counsel, if the person or persons
authorized under this Section 5.4 to determine entitlement to indemnification
shall not have made and furnished to the Indemnitee in writing a determination
of whether the Indemnitee is entitled to indemnification within thirty days
after receipt by the Company of the Indemnitee's request therefor, a
determination of entitlement to indemnification shall be deemed to have been
made, and the Indemnitee shall be entitled to such indemnification unless the
Indemnitee knowingly misrepresented a material fact in connection with the
request for indemnification or such indemnification is prohibited by law. The
termination of any Proceeding or of any Matter therein, by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Article) of itself
adversely affect the right of Indemnitee to indemnification or create a
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presumption that Indemnitee did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Company, or with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
Section 5.5. Payments to Independent Counsel. The Company shall pay any
and all reasonable fees and expenses of Independent Counsel incurred acting
pursuant to this Article and in any proceeding to which it is a party or witness
in respect of its investigation and written report and shall pay all reasonable
fees and expenses incident to the procedures in which such Independent Counsel
was selected or appointed. No Independent Counsel may serve if a timely
objection has been made to his selection until a court has determined that such
objection is without a reasonable basis.
Section 5.6. Right to Bring Suit. In the event that (a) a determination is
made pursuant to Section 5.4 of this Article V that the Indemnitee is not
entitled to indemnification under this Article, (b) advancement of Expenses is
not timely made pursuant to Section 5.3 of this Article V, (c) Independent
Counsel has not made and delivered a written opinion determining the request for
indemnification (i) within ninety days after being appointed by the court, or
(ii) within ninety days after objections to his selection have been overruled by
the court, or (iii) within ninety days after the time for the Company or the
Indemnitee to object to his selection, or (d) payment of indemnification is not
made within five days after a determination of entitlement to indemnification,
the Indemnitee shall be entitled to an adjudication in an appropriate court of
the State of Delaware, or in any other court of competent jurisdiction, of his
entitlement to such indemnification or advancement of Expenses. In the event
that a determination shall have been made that the Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 5.6 shall be conducted in all respects as a de novo trial on the
merits and Indemnitee shall not be prejudiced by reason of that adverse
determination. If a determination shall have been made or deemed to have been
made that the Indemnitee is entitled to indemnification, the Company shall be
bound by such determination in any judicial proceeding commenced pursuant to
this Section 5.6, or otherwise, unless the Indemnitee knowingly misrepresented a
material fact in connection with the request for indemnification, or such
indemnification is prohibited by law.
The Company shall be precluded from asserting in any judicial proceeding
commenced pursuant to this Section 5.6 that the procedures and presumptions of
this Article are not valid, binding and enforceable and shall stipulate in any
such court that the Company is bound by all provisions of this Article. In the
event that the Indemnitee, pursuant to this Section 5.6, seeks a judicial
adjudication to enforce his rights under, or to recover damages for breach of,
this Article, the Indemnitee shall be entitled to recover from the Company, and
shall be indemnified by the Company against, any and all Expenses actually and
reasonably incurred by him in such judicial adjudication, but only if he
prevails therein. If it shall be determined in such judicial adjudication
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that the Indemnitee is entitled to receive part but not all of the
indemnification or advancement of Expenses sought, the Expenses incurred by the
Indemnitee in connection with such judicial adjudication or arbitration shall be
appropriately prorated.
Section 5.7. Non-Exclusivity of Rights. The rights to receive
indemnification and advancement of Expenses as provided by this Article shall
not be deemed exclusive of any other rights to which an Indemnitee may at any
time be entitled under applicable law, the Certificate of Incorporation, the
Bylaws, any agreement, a vote of stockholders or disinterested directors, or
otherwise.
Section 5.8. Other Indemnification. The Company's obligation, if any, to
indemnify any Indemnitee who was or is serving at its request as a director,
officer, employee, agent or fiduciary of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise or nonprofit entity
shall be reduced by any amount such Indemnitee may collect as indemnification
from such other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise or nonprofit entity.
Section 5.9. Amendment or Repeal. No amendment, alteration or repeal of
this Article or any provision thereof shall be effective as to any Indemnitee
for acts, omissions, events and circumstances that occurred, in whole or in
part, before such amendment, alteration or repeal.
Section 5.10. Survival of Rights. The provisions of this Article shall
continue as to an Indemnitee whose Corporate Status has ceased and shall inure
to the benefit of his heirs, executors and administrators.
Section 5.11. Insurance. The Company may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Company or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Company would have the power to indemnify such person against such expense,
liability or loss under applicable law.
Section 5.12. Indemnity Agreements. The Company may enter into indemnity
agreements with the persons who are members of its Board of Directors from time
to time, and with such officers, employees and agents as the Board of Directors
may designate, such indemnity agreements to provide in substance that the
Company will indemnify such persons to the full extent contemplated by this
Article.
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Section 5.13. Definitions. For purposes of this Article:
"Corporate Status" describes the status of a person who is or was a
director, officer, employee, agent or fiduciary of the Company or of any
other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise or nonprofit entity which such person is or was serving
at the request of the Company.
"DGCL" means the General Corporation Law of the State of Delaware as
set forth in Title 8 of the Delaware Code.
"Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees and all other disbursements or expenses of
the types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, or being or preparing to
be a witness in a Proceeding.
"Indemnitee" includes any person who was or is made, or is threatened
to be made a party or is otherwise involved in any Proceeding by reason of
his Corporate Status.
"Independent Counsel" means a law firm, or member of a law firm, that
is experienced in matters of corporation law and neither presently is, nor
in the five years previous to his selection or appointment has been,
retained to represent: (a) the Company or Indemnitee in any matter material
to either such party; or (b) any other party to the Proceeding giving rise
to a claim for indemnification hereunder.
"Matter" is a claim, a material issue or a substantial request for
relief.
"Proceeding" includes any action, suit, arbitration, alternate dispute
resolution proceeding, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative, or investigative,
except one initiated by an Indemnitee pursuant to Section 5.6 of this
Article to enforce his rights under this Article.
Section 5.14. Communications. Any communication required or permitted to
be made to the Company shall be addressed to the Secretary and any such
communication to an Indemnitee shall be addressed to his home address unless he
specifies otherwise.
Section 5.15. Legality. If any provision or provisions of this Article
shall be held to be invalid, illegal or unenforceable for any reason whatsoever,
the validity, legality and enforce ability of the remaining provisions shall
not in any way be affected or impaired thereby; and, to the fullest extent
possible, the provisions of this Article shall be construed so as to give effect
to the intent manifested by the provision held invalid, illegal or
unenforceable.
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ARTICLE VI
MISCELLANEOUS
Section 6.1 Disbursements. All checks or demands for money and notes of
the Company shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 6.2. Fiscal Year. The fiscal year of the Company shall be fixed by
resolution of the Board of Directors.
Section 6.3. Corporate Seal. The Corporate Seal shall have inscribed
thereon the name of the Company, the year of its organization and the words
"Corporate Seal, Delaware." The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or otherwise reproduced.
Section 6.4. Interested Directors. No contract or transaction between the
Company and one or more of its directors or officers, or between the Company and
any other corporation, partnership, association or other organization in which
one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorized the contract or
transaction, or solely because his or their votes are counted for such purpose,
if: (a) the material facts as to his or their relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative vote of a majority of
the disinterested directors, even though the disinterested directors be less
than a quorum; or (b) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (c) the
contract or transaction is fair as to the Company as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction. Any director of
the Company may vote upon any contract or other transaction between the Company
and any subsidiary or affiliated corporation without regard to the fact that he
is also a director of such subsidiary or affiliated corporation.
Section 6.5. Amendments. These Bylaws may be altered, amended or repealed,
in whole or in part, or new Bylaws may be adopted, by the stockholders or by the
Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such
meeting of stockholders or Board of Directors, as the case may
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be. All such alterations, amendments, repeals or adoptions must be approved by
either the holders of a majority of the outstanding capital stock entitled to
vote thereon or by a majority of the Board of Directors then in office.
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EXHIBIT 21
SUBSIDIARIES OF NEW NORAM
Since the closing date of the Succession Transaction, NorAm Energy
Corp., formerly known as HI Merger, Inc., has done business as:
Arkla
Entex
Minnegasco
SIGNIFICANT SUBSIDIARY:
NorAm Gas Transmission Company, a Delaware corporation
