EXHIBIT 4.01(b)
WHEREAS, the Company desires to enter into a Purchase Agreement (the
"Purchase Agreement") by and among the Company and other initial purchasers
(collectively, the "Initial Purchasers") pursuant to which the Company will
issue and sell to the Initial Purchasers Notes due after 2012 in an aggregate
principal amount of up to $200,000,000 with an interest rate that shall not
exceed 6.00% (the "Notes");
WHEREAS, the Notes will be issued under the July 1, 1996 Indenture (the
"Indenture") between the Company and Bank of New York, as successor to Bank of
Montreal Trust Company, in its capacity as trustee (the "Trustee"), which will
be amended in connection with the Note Transaction;
WHEREAS, the Company is in the process of preparing a Preliminary Offering
Memorandum (the "Preliminary Offering Memorandum") with respect to the Notes to
be distributed to the Initial Purchasers and other prospective investors;
WHEREAS, the Company desires to circulate a final Offering Memorandum (the
"Final Offering Memorandum") with respect to the Notes to the Initial Purchasers
and other investors;
WHEREAS, the Company desires to enter into a Registration Rights Agreement
(the "Registration Rights Agreement") by and among the Company and the Initial
Purchasers pursuant to which the Company agrees to file with the United States
Securities and Exchange Commission a registration statement (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
relating to another series of debt securities of the Company with terms
substantially identical to the Notes (the "Exchange Notes") to be offered in
exchange for the Notes (the "Exchange Offer"); and
WHEREAS, the issuance and sale of the Notes, the execution, delivery and
performance of the Purchase Agreement and the Registration Rights Agreement, the
amendment of the Indenture, the circulation of the Preliminary Offering
Memorandum and the Final Offering Memorandum, the Exchange Offer and the other
actions of the Company related to and in furtherance of the foregoing are herein
referred to as the "Note Transaction".
AUTHORIZATION OF THE NOTES
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors hereby approves
the proposed issuance and sale (the "Offering") by the Company of the Notes to
the Initial Purchasers for purposes of resale by the Initial Purchasers pursuant
to Rule 144A and Regulation S under the Securities Act;
RESOLVED FURTHER, that the Chairman, President, and Chief Executive Officer
and the Executive Vice President and Chief Financial Officer
and any other officers or assistant officers of the Company or its subsidiaries
that any of them may designate in writing from time to time (the "Designated
Officers"), be, and each of them hereby is, authorized and directed, in the name
and on behalf of the Company to negotiate the form, terms and provisions of the
Notes, and to execute and deliver up to $200,000,000 aggregate principal amount
of the Notes, with an interest rate not to exceed 6.00%, in accordance with the
terms and provisions of the Indenture and these resolutions;
PURCHASE AGREEMENT
RESOLVED FURTHER, that the Designated Officers be, and each of them hereby
is, authorized and directed, in the name and on behalf of the Company and under
its corporate seal or otherwise, to negotiate the form, terms and provisions of
the Purchase Agreement, and to execute and deliver the Purchase Agreement;
INDENTURE
RESOLVED FURTHER, if the Company and the Initial Purchasers agree that the
Indenture be amended pursuant to the Note Transaction, that the Designated
Officers be, and each of them hereby is, authorized and directed, in the name
and on behalf of the Company and under its corporate seal or otherwise, to
negotiate the form, terms and provisions of the amendments to the Indenture, and
to execute and deliver the amended Indenture;
RESOLVED FURTHER, that the Trustee be, and it hereby is, directed to
authenticate, when executed by the Company, up to $200,000,000 aggregate
principal amount of the Notes with an interest rate not to exceed 6.00%, and if
and when issued in the Exchange Offer pursuant to the terms and conditions of
the Registration Rights Agreement, the Exchange Notes, and to deliver the same
to the Company upon written order, signed by any Designated Officer in
accordance with the Indenture, and thereafter to authenticate and deliver all
such other securities as may be necessary upon surrender of, or in exchange for,
or in lieu of, any outstanding securities, in accordance with the terms of the
Indenture;
REGISTRATION RIGHTS AGREEMENT
RESOLVED FURTHER, that the Designated Officers be, and each of them hereby
is, authorized and directed, in the name and on behalf of the Company and under
its corporate seal or otherwise, to negotiate the form, terms and provisions of
the Registration Rights Agreement, and to execute and deliver the Registration
Rights Agreement, providing for, among other things, an agreement by the Company
to prepare and file, (i) the Registration Statement with respect to the Exchange
Offer of the Notes for the Exchange Notes in order to permit the Exchange Notes
to be freely tradable after the Exchange Offer without further registration
under the Securities Act, or (ii) in lieu thereof or in addition
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thereto, a shelf registration statement with respect to the resale of the
Exchange Notes (the "Shelf Registration Statement") under the Securities Act;
AUTHORIZATION OF EXCHANGE NOTES
RESOLVED FURTHER, that the Designated Officers be, and each of them hereby
is, authorized and directed, in the name and on behalf of the Company and under
its corporate seal or otherwise, to negotiate the form, terms and provisions of
the Exchange Notes, and to execute and deliver the Exchange Notes or any
certificates or other instruments evidencing the Exchange Notes in accordance
with the terms and provisions of the Indenture and the Registration Rights
Agreement;
LETTER OF REPRESENTATIONS
RESOLVED FURTHER, that the Company be, and it hereby is, authorized to
deposit the Notes with the Trustee as agent for The Depository Trust Corporation
("DTC") and that the Designated Officers be, and each of them hereby is,
authorized and directed, in the name and on behalf of the Company and under its
corporate seal or otherwise, to negotiate the form, terms and provisions of the
Letter of Representations (the "Letter of Representations") proposed to be
entered into among the Company, the Trustee and DTC, and to execute and deliver
the Letter of Representations;
RESOLVED FURTHER, that the appointment of DTC as depositary for the Notes
and the Exchange Notes is hereby approved and authorized;
OFFERING MEMORANDUM
RESOLVED FURTHER, that the Designated Officers be, and each of them hereby
is, authorized and empowered, in the name and on behalf of the Company and under
its corporate seal or otherwise, to negotiate the form and provisions of the
Preliminary Offering Memorandum and to create the Final Offering Memorandum and
to make such other amendments, modifications or supplements to the Final
Offering Memorandum after its circulation, and to cause the distribution of the
Final Offering Memorandum and such amendments, modifications or supplements, in
such form as such officer or officers shall, in his or their sole discretion,
determine to be necessary, proper or advisable in connection with the offering
of the Notes; and that the Designated Officers be, and each of them hereby is,
authorized and directed, in the name and on behalf of the Company and under its
corporate seal or otherwise, to take such other actions with respect thereto as
they shall deem necessary or advisable;
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AUTHORIZATION WITH RESPECT TO PRICING
RESOLVED FURTHER, that the Designated Officers be, and hereby are,
authorized to determine and agree for and on behalf of the Company, the price at
which the Notes shall be offered, the interest rate to be borne by the Notes and
the dates of payment thereof, the maturity date of the Notes, the redemption
prices of the Notes, and the dates on and after which any such redemption shall
be permitted and the other terms of such redemption, and the discount rate for
purposes of determining additional interest;
RESOLVED FURTHER, that the Notes shall be sold to the Initial Purchasers
pursuant to the Purchase Agreement, in such denominations as requested pursuant
to the Purchase Agreement for resale by the Initial Purchasers to qualified
institutional buyers within the meaning of Rule 144A under the Securities Act,
and to persons outside the United States in accordance with Regulation S under
the Securities Act;
BLUE SKY AND OTHER STATE SECURITIES LAWS
RESOLVED FURTHER, that the Designated Officers be, and each of them hereby
is, authorized and directed in the name and on behalf of the Company and under
its corporate seal or otherwise, to take any and all action which they may deem
necessary or advisable in order to effect the registration or qualification (or
exemption therefrom) of the Notes and the Exchange Notes under the "blue sky" or
securities laws of any of the states of the United States of America or of any
other jurisdiction where the Notes or Exchange Notes may be offered or sold, and
in connection therewith to execute, acknowledge, verify, deliver, file or cause
to be published any applications, reports, consents to service of process,
appointments of attorneys to receive service of process and other papers and
instruments which may be required under such laws, and to take any and all
further action which they may deem necessary or advisable in order to maintain
any such registration or qualification for as long as they deem necessary or as
required by law or requested by the Initial Purchasers and that any and all such
actions previously taken by any proper officer be, and they are, in all
respects, approved, ratified and confirmed;
RESOLVED FURTHER, that if in any state or other jurisdiction in which
action is taken to register or qualify (or exempt therefrom) the Notes and/or
the Exchange Notes, a prescribed form of resolution or resolutions relating to
such registration or qualification (or exemption), or to any application,
report, surety bond, issuer's covenant, consent to service of process,
appointment of attorneys to receive service of process or other paper or
instrument in connection therewith, is required, each such resolution shall be
deemed to have been and it hereby is adopted by this Board of Directors, and the
Secretary or any Assistant Secretary of the Company is hereby authorized to
certify the adoption of any such resolution as though the same were now
presented to and adopted at this meeting, all such
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resolutions to be inserted in the minute book of the Company as part of the
minutes of this meeting;
UTILITY FILINGS
RESOLVED FURTHER, that the Designated Officers be, and hereby they are,
authorized, empowered and directed to execute and file on behalf of the Company
a Securities Certificate with the Pennsylvania Public Utility Commission and an
Application for an Order Authorizing the Issuance and Sale of Debt Securities
with the Kentucky Public Service Commission, in each case relating to the Note
Transaction, and to execute and file with the Pennsylvania Public Utility
Commission and the Kentucky Public Service Commission and all other regulatory
authorities such amendments or additional applications, agreements and other
documents, or amendments to the same, and to take any and all such further
actions, as such officers may deem necessary or advisable in order to make all
filings with all such regulatory authorities effective and to authorize the
issuance and sale of the debt securities;
USE OF PROCEEDS
RESOLVED FURTHER, that the Company be, and hereby is, authorized to use the
proceeds of the Note Transaction to reduce or refinance the Company's
outstanding commercial paper and other short-term or long-term debt or to redeem
the Company's 7.35% Junior Subordinated Deferrable Interest Debentures due April
15, 2038 or for general corporate purposes;
GENERAL
RESOLVED FURTHER, that the Designated Officers be, and each individually
hereby is, authorized, empowered, and directed, for and on behalf of the Company
to deliver such corporate papers, certificates and other documents, and to affix
and attest to the seal of the Company, as may be deemed necessary or advisable
by any one of them in connection with the Purchase Agreement, the Indenture, the
Notes, the Registration Rights Agreement, the Registration Statement, the Shelf
Registration Statement or any of the other documents required to executed in
connection with the Note Transaction and to do any and all other acts and things
(including, without limitation, affixing the seal of the Company to any and all
instruments, agreements, papers, certificates and documents) and to enter into
and execute any and all documents or instruments which in the opinion of any of
said officers shall be necessary or desirable in connection with carrying out by
the Company of the transaction authorized by the foregoing resolutions; and
RESOLVED FURTHER, that any and all actions heretofore taken in furtherance
of the transactions contemplated herein be, and they hereby are, ratified,
approved and confirmed in all respects.
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