<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 29, 1997
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DUKE ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
NORTH CAROLINA 56-0205520
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
422 SOUTH CHURCH STREET
CHARLOTTE, NC 28242-0001
(704) 594-0887
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
RETIREMENT SAVINGS PLAN
AND
EMPLOYEES' STOCK OWNERSHIP PLAN
(Full title of the plans)
<TABLE>
<S> <C>
RICHARD J. OSBORNE JOHN SPUCHES
EXECUTIVE VICE PRESIDENT DEWEY BALLANTINE
AND CHIEF FINANCIAL OFFICER 1301 AVENUE OF THE AMERICAS
422 SOUTH CHURCH STREET NEW YORK, NEW YORK 10019-6092
CHARLOTTE, NORTH CAROLINA 28242-0001 TELEPHONE NO. 212-259-7700
TELEPHONE NO. 704-382-5159
</TABLE>
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
CALCULATION OF REGISTRATION FEE
[CAPTION]
<TABLE>
<S> <C> <C> <C>
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE OFFER-
BE REGISTERED(1) REGISTERED PER SHARE (2) ING PRICE (2)
<S> <C> <C> <C>
Common Stock,
without par value......... 1,000,000 shares $48.90625 $48,906,250
<CAPTION>
TITLE OF AMOUNT OF
SECURITIES TO REGISTRATION
BE REGISTERED(1) FEE
<S> <C>
Common Stock,
without par value......... $14,821
</TABLE>
(1) In addition, this Registration Statement also covers an indeterminate amount
of interests to be offered or sold in connection with the Plans described
herein pursuant to Rule 416(c) under the Securities Act of 1933, as amended.
(2) Pursuant to Rule 457(h), these prices are estimated solely for the purpose
of calculating the registration fee and are based upon the average of the
high and low sales prices of the Registrant's Common Stock on the New York
Stock Exchange on August 22, 1997.
THERE ALSO ARE REGISTERED HEREUNDER SUCH ADDITIONAL INDETERMINATE NUMBER OF
SHARES AS MAY BE ISSUED AS A RESULT OF THE ADJUSTMENT PROVISIONS OF THE PLANS.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
This Registration Statement on Form S-8 (the "Registration Statement") is
being filed by Duke Energy Corporation (the "Company" or "Registrant") with
respect to the Registrant's Retirement Savings Plan (the "Retirement Savings
Plan") and the Registrant's Employees' Stock Ownership Plan (the "ESOP"; and
together with the Retirement Savings Plan, the "Plans"), referred to on the
cover of this Registration Statement. The document(s) containing the information
required in Part I of this Registration Statement will be sent or given to each
participant in the Retirement Savings Plan and each participant in the ESOP, as
specified by Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"1933 Act"). Such document(s) are not being filed with the Commission but
constitute (together with the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that
meets the requirements of Section 10(a) of the 1933 Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated herein
by reference:
(Bullet) Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 1996.
(Bullet) Quarterly Reports on Form 10-Q of the Company for the quarters
ended March 31, 1997 and June 30, 1997, as amended.
(Bullet) Current reports on Form 8-K of the Company dated April 25, 1997,
May 30, 1997, June 18, 1997 and June 27, 1997.
(Bullet) Annual Report on Form 11-K of the Retirement Savings Plan for the
fiscal year ended October 31, 1996.
(Bullet) Annual Report on Form 11-K of the ESOP for the fiscal year ended
December 31, 1996.
(Bullet) The description of the Common Stock, without par value (the
"Common Stock"), of the Company, which is contained in the
Company's Registration Statement on Form S-4, Registration No.
333-23227, filed with the Commission on March 13, 1997, including
any amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference and to be a part hereof from the date of the filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 55-8-50 through 55-8-58 of the North Carolina Business Corporation
Act and the By-Laws of the Company permit indemnification of the Registrant's
directors and officers in a variety of circumstances, which may include
liabilities under the 1933 Act. In addition, the Registrant has purchased
insurance permitted by the law of North Carolina on behalf of directors,
officers, employees or agents which may cover liabilities under the 1933 Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
1
<PAGE>
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
4(a) Retirement Savings Plan of the Registrant (incorporated by reference to Exhibit 10-X of the Registrant's
Form 10-K for the year ended December 31, 1996, File No. 1-4928).
4(b) Employees' Stock Ownership Plan of the Registrant (incorporated by reference to Exhibit 10-E of the
Registrant's Form 10-K for the year ended December 31, 1996, File No. 1-4928).
4(c) Restated Articles of Incorporation of Registrant, dated June 18, 1997 (incorporated by reference to
Exhibit 4(G) of Form S-8 (Registration No. 333-29563) filed by the Registrant on June 19, 1997).
4(d) By-Laws of Registrant.
5 Opinion of Peter C. Buck, Esq.
23(a) Independent Auditors' Consent of Deloitte & Touche LLP.
23(b) Independent Auditors' Consent of KPMG Peat Marwick LLP.
23(c) Consent of Peter C. Buck, Esq. (included in Exhibit 5).
24(a) Copy of power of attorney authorizing Robert S. Lilien and others to sign the Registration Statement on
behalf of the Registrant and certain of its directors and officers.
24(b) Certified copy of resolution of the Board of Directors of the Registrant authorizing power of attorney.
</TABLE>
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1) (i) and (a)(1) (ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2)That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
2
<PAGE>
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, State of North Carolina, on the 28th day
of August, 1997.
DUKE ENERGY CORPORATION
Registrant
By R. B. PRIORY
R. B. PRIORY
CHAIRMAN OF THE BOARD
AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
R.B. PRIORY Chairman of the Board and Chief Executive August 28, 1997
Officer (Principal Executive Officer)
RICHARD J. OSBORNE Executive Vice President and Chief Financial August 28, 1997
Officer (Principal Financial Officer)
JEFFREY L. BOYER Vice President and Corporate Controller August 28, 1997
(Principal Accounting Officer)
PAUL M. ANDERSON August 28, 1997
G. ALEX BERNHARDT August 28, 1997
ROBERT J. BROWN August 28, 1997
WILLIAM A. COLEY August 28, 1997
WILLIAM T. ESREY All of the Directors August 28, 1997
ANN MAYNARD GRAY August 28, 1997
DENNIS R. HENDRIX August 28, 1997
HAROLD S. HOOK August 28, 1997
GEORGE DEAN JOHNSON, JR. August 28, 1997
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
W.W. JOHNSON August 28, 1997
MAX LENNON August 28, 1997
LEO E. LINBECK, JR. August 28, 1997
JAMES G. MARTIN August 28, 1997
BUCK MICKEL August 28, 1997
R.B. PRIORY August 28, 1997
RUSSELL M. ROBINSON, II August 28, 1997
</TABLE>
Robert S. Lilien, by signing his name hereto, does hereby sign this
document on behalf of the Registrant and on behalf of each of the above-named
persons pursuant to a power of attorney duly executed by the Registrant and such
persons, filed with the Securities and Exchange Commission as an exhibit hereto.
ROBERT S. LILIEN
ROBERT S. LILIEN
ATTORNEY-IN-FACT
Pursuant to the requirements of the Securities Act of 1933, the Duke Energy
Corporation Benefits Committee has duly caused this Registration Statement to be
signed on its behalf by the undersigned thereunto duly authorized, in the City
of Charlotte, State of North Carolina, on the 28th day of August, 1997.
DUKE ENERGY CORPORATION
RETIREMENT SAVINGS PLAN
By /s/ BARBARA B. ORR
BARBARA B. ORR
BENEFITS COMMITTEE CHAIR
DUKE ENERGY CORPORATION
EMPLOYEES' STOCK OWNERSHIP PLAN
By /s/ BARBARA B. ORR
BARBARA B. ORR
BENEFITS COMMITTEE CHAIR
5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
4(a) Retirement Savings Plan of the Registrant (incorporated by reference to Exhibit 10-X of the Registrant's Form
10-K for the year ended December 31, 1996, File No. 1-4928).
4(b) Employees' Stock Ownership Plan of the Registrant (incorporated by reference to Exhibit 10-E of the
Registrant's Form 10-K for the year ended December 31, 1996, File No. 1-4928).
4(c) Restated Articles of Incorporation of Registrant, dated June 18, 1997 (incorporated by reference to Exhibit
4(G) of Form S-8 (Registration No. 333-29563) filed by the Registrant on June 19, 1997).
4(d) By-Laws of Registrant.
5 Opinion of Peter C. Buck, Esq.
23(a) Independent Auditors' Consent of Deloitte & Touche LLP.
23(b) Independent Auditors' Consent of KPMG Peat Marwick LLP.
23(c) Consent of Peter C. Buck, Esq. (included in Exhibit 5).
24(a) Copy of power of attorney authorizing Robert S. Lilien, and others to sign the Registration Statement on
behalf of the Registrant and certain of its directors and officers.
24(b) Certified copy of resolution of the Board of Directors of the Registrant authorizing power of attorney.
</TABLE>
6
BY-LAWS
OF
DUKE ENERGY CORPORATION
Date of Adoption:
July 28, 1997
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I Offices......................................................................................................1
Section 1.1. Principal Office............................................................................1
Section 1.2. Other Offices...............................................................................1
ARTICLE II Meetings of Shareholders....................................................................................1
Section 2.1. Place of Meetings...........................................................................1
Section 2.2. Annual Meetings.............................................................................1
Section 2.3. Special Meetings............................................................................1
Section 2.4. Notice of Meetings..........................................................................1
Section 2.5. Voting Group................................................................................2
Section 2.6. Quorum......................................................................................2
Section 2.7. Voting of Shares............................................................................2
Section 2.8. Proxies.....................................................................................2
Section 2.9. Notice of Shareholder Business and Nominations..............................................3
Section 2.10. Conduct of Meetings.........................................................................4
Section 2.11. Inspectors of Elections.....................................................................5
Section 2.12. Shareholders' List..........................................................................5
ARTICLE III Board of Directors.........................................................................................5
Section 3.1. General Powers..............................................................................5
Section 3.2. Number and Qualifications...................................................................6
Section 3.3. Election of Directors; Classes..............................................................6
Section 3.4. Removal.....................................................................................6
Section 3.5. Newly Created Directorships; Vacancies......................................................6
Section 3.6. Compensation of Directors...................................................................7
ARTICLE IV Meetings of Directors.......................................................................................7
Section 4.1. Regular Meetings............................................................................7
Section 4.2. Special Meetings............................................................................7
Section 4.3. Notice......................................................................................7
Section 4.4. Quorum and Manner of Acting.................................................................7
Section 4.5. Action by Consent of Board of Directors.....................................................7
Section 4.6. Conference Telephone Meetings...............................................................7
ARTICLE V Committees of the Board......................................................................................8
Section 5.1. Management Committee........................................................................8
Section 5.2. Nominating Committee........................................................................8
Section 5.3. Finance Committee...........................................................................9
Section 5.4. Audit Committee.............................................................................9
i
<PAGE>
Section 5.5. Compensation Committee......................................................................9
Section 5.6. Corporate Performance Review Committee.....................................................10
Section 5.7. Quorum and Manner of Acting of Committees..................................................10
Section 5.8. Notice, Etc................................................................................10
ARTICLE VI Officers...................................................................................................11
Section 6.1. Elected Officers...........................................................................11
Section 6.2. Election and Term of Office................................................................11
Section 6.3. Chairman of the Board and Chief Executive Officer..........................................11
Section 6.4. President..................................................................................11
Section 6.5. Vice Presidents............................................................................11
Section 6.6. Secretary..................................................................................12
Section 6.7. Treasurer..................................................................................12
Section 6.8. Controller.................................................................................12
Section 6.9. Assistant Secretaries, Assistant Treasurers and Assistant Controllers......................12
Section 6.10. Removal....................................................................................13
Section 6.11. Vacancies..................................................................................13
ARTICLE VII Stock Certificates and Transfers..........................................................................13
Section 7.1. Certificates for Shares....................................................................13
Section 7.2. Share Transfer Records.....................................................................13
Section 7.3. Lost, Stolen or Destroyed Certificates.....................................................14
Section 7.4. Fixing Record Date.........................................................................14
Section 7.5. Holder of Record...........................................................................14
ARTICLE VIII Contracts, Checks and Drafts, Deposits and Proxies.......................................................14
Section 8.1. Contracts..................................................................................14
Section 8.2. Checks and Drafts..........................................................................14
Section 8.3. Deposits...................................................................................14
Section 8.4. Proxies....................................................................................14
ARTICLE IX Indemnification............................................................................................15
Section 9.1. Indemnification............................................................................15
ARTICLE X Miscellaneous...............................................................................................15
Section 10.1. Fiscal Year................................................................................15
Section 10.2. Distributions..............................................................................16
Section 10.3. Seal.......................................................................................16
Section 10.4. Waiver of Notice...........................................................................16
Section 10.5. Time Periods...............................................................................16
Section 10.6. Resignations...............................................................................16
Section 10.7. Definitions................................................................................16
ii
<PAGE>
ARTICLE XI Emergency Provisions.......................................................................................16
Section 11.1. General....................................................................................16
Section 11.2. Unavailable Directors......................................................................17
Section 11.3. Authorized Number of Directors.............................................................17
Section 11.4. Quorum.....................................................................................17
Section 11.5. Creation of Emergency Committee............................................................17
Section 11.6. Constitution of Emergency Committee........................................................17
Section 11.7. Powers of Emergency Committee..............................................................17
Section 11.8. Directors Becoming Available...............................................................18
Section 11.9. Election of Board of Directors.............................................................18
Section 11.10. Termination of Emergency Committee.........................................................18
Section 11.11. Nonexclusive Powers........................................................................18
ARTICLE XII Amendments................................................................................................18
Section 12.1. Amendments.................................................................................18
</TABLE>
iii
<PAGE>
BY-LAWS
OF
DUKE ENERGY CORPORATION
(Adopted July 28, 1997)
ARTICLE I
Offices
Section 1.1. Principal Office. The principal office of the Corporation shall be
located in Charlotte, North Carolina.
Section 1.2. Other Offices. The Corporation may have such other offices either
within or without the State of North Carolina as the Board of Directors may
designate or as the business of the Corporation may from time to time require.
ARTICLE II
Meetings of Shareholders
Section 2.1. Place of Meetings. All meetings of shareholders shall be held at
such place either within or without the State of North Carolina as shall be
fixed by the Board of Directors and designated in the notice of the meeting.
Section 2.2. Annual Meetings. The annual meeting of shareholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on such date and at such time as
may be fixed by the Board of Directors.
Section 2.3. Special Meetings. Except as otherwise required by law and subject
to the rights of the holders of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation, special meetings of
shareholders for any purpose or purposes may be called only by (i) the Board of
Directors pursuant to a resolution stating the purpose or purposes thereof or
(ii) by the Chairman of the Board of Directors. No business other than that
stated in the notice shall be transacted at any special meeting.
Section 2.4. Notice of Meetings. Written or printed notice, stating the place,
day and hour of the meeting of shareholders and the purpose or purposes for
which the meeting is called, shall be delivered by the Corporation not less than
10 calendar days nor more than 60 calendar days before the date of the meeting,
either personally, by mail, or by such other means as may be permitted by law to
each shareholder of record entitled to vote at such meeting; provided that such
notice must be given to all shareholders with respect to any meeting at which a
merger or share exchange is to be submitted to shareholders for approval and in
such other instances as required by law. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail with postage thereon
prepaid, correctly addressed to the shareholder at such shareholder's address as
it appears on the stock transfer books of the Corporation. Such further notice
shall be given as may be required by law. When a meeting is adjourned to a
different date, time or place,
1
<PAGE>
notice need not be given of the new date, time or place if the new date, time or
place is announced at the meeting before adjournment and if a new record date is
not or must not be fixed for the adjourned meeting; but if a new record date is
fixed for the adjourned meeting (which must be done if the new date is more than
120 days after the date of the original meeting), notice of the adjourned
meeting must be given as provided in this Section 2.4 to persons who are
shareholders as of the new record date.
Section 2.5. Voting Group. All shares of one or more classes or series that
under the Articles of Incorporation or the North Carolina Business Corporation
Act are entitled to vote and be counted together collectively on a matter at a
meeting of shareholders constitute a voting group. All shares entitled by the
Articles of Incorporation or the North Carolina Business Corporation Act to vote
generally on a matter are for that purpose a single voting group. Classes or
series of shares shall not be entitled to vote separately by voting group unless
expressly authorized by the Articles of Incorporation or specifically required
by law.
Section 2.6. Quorum. Shares entitled to vote as a separate voting group may take
action on a matter at a meeting of shareholders only if a quorum of that voting
group exists. Unless otherwise required by law, the Articles of Incorporation or
a By-Law adopted by the shareholders, a majority of the votes entitled to be
cast on the matter by the voting group constitutes a quorum of that voting group
for action on that matter. Once a share is represented for any purpose at a
meeting, it is deemed present for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting unless a new record date is or
must be set for that adjourned meeting. In the absence of a quorum at the
opening of any meeting of shareholders, such meeting may be adjourned from time
to time by the vote of a majority of the votes cast on the motion to adjourn;
and, subject to the provisions of Section 2.4, at any adjourned meeting any
business may be transacted that might have been transacted at the original
meeting if a quorum exists with respect to the matter proposed.
Section 2.7. Voting of Shares. Each outstanding share entitled to vote shall be
entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. Except in the election of directors, the vote of a majority of
shares voted on any matter at a meeting of shareholders at which a quorum is
present shall be the act of the shareholders on that matter, unless the vote of
a greater number is required by law or by the Articles of Incorporation.
Election of directors at all meetings of the shareholders at which directors are
to be elected shall be by ballot, and, subject to the rights of the holders of
any class of stock having a preference over the Common Stock as to dividends or
upon liquidation to elect directors under specified circumstances, those
nominees for election as directors who receive the highest number of votes at a
meeting at which a quorum is present up to the maximum number of directors to be
elected at such meeting shall be deemed to have been elected.
Section 2.8. Proxies. Shares may be voted either in person or by one or more
proxies authorized by a written appointment of proxy signed by the shareholder
or by the shareholder's duly authorized attorney-in-fact. An appointment of
proxy is valid for 11 months from the date of its execution, unless a different
period is expressly provided in the appointment form.
2
<PAGE>
Section 2.9. Notice of Shareholder Business and Nominations.
(A) ANNUAL MEETINGS OF SHAREHOLDERS. (1) Nominations of persons for election to
the Board of Directors and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders (a) pursuant to
the Corporation's notice of meeting pursuant to Section 2.4 of these By-Laws,
(b) by or at the direction of the Board of Directors, or (c) by any shareholder
of the Corporation who was a shareholder of record at the time of giving of
notice provided for in this By-Law, who is entitled to vote at the meeting and
who complies with the notice procedures set forth in this By-Law.
(2) For nominations or other business to be properly brought before an annual
meeting by a shareholder pursuant to clause (c) of paragraph (A)(1) of this
By-Law, the shareholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a shareholder's notice shall be
delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 90th calendar day nor earlier than
the close of business on the 120th calendar day prior to the first anniversary
of the preceding year's annual meeting; provided, however, that in the event
that the date of the annual meeting is more than 30 calendar days before or more
than 60 calendar days after such anniversary date, notice by the shareholder to
be timely must be so delivered not earlier than the close of business on the
120th calendar day prior to such annual meeting and not later than the close of
business on the later of the 90th calendar day prior to such annual meeting or
the 10th calendar day following the calendar day on which public announcement of
the date of such meeting is first made by the Corporation. In no event shall the
public announcement of an adjournment of an annual meeting of shareholders
commence a new time period for the giving of a shareholder's notice as described
above. Such shareholder's notice shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 14a-11
thereunder (including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (b) as to any
other business that the shareholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such shareholder and the beneficial owner, if any, on whose
behalf the proposal is made; and as to the shareholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made (i)
the name and address of such shareholder, as they appear on the Corporation's
books, and of such beneficial owner and (ii) the class and number of shares of
the Corporation which are owned beneficially and of record by such shareholder
and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this
By-Law to the contrary, in the event that the number of directors to be elected
to the Board of Directors of the Corporation is increased and there is no public
announcement by the Corporation naming all of the nominees for director or
specifying the size of the increased Board of Directors at least 100 calendar
days prior to the first anniversary of the preceding year's annual meeting of
shareholders, a shareholder's notice required by this By-Law shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th calendar day following the day on which such public
announcement is first made by the Corporation.
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(B) SPECIAL MEETINGS OF SHAREHOLDERS. Only such business shall be conducted at a
special meeting of shareholders as shall have been brought before the meeting
pursuant to the Corporation's notice of meeting under Section 2.4 of these
By-Laws. Nominations of persons for election to the Board of Directors may be
made at a special meeting of shareholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (a) by or at the direction of
the Board of Directors, or (b) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any shareholder
of the Corporation who is a shareholder of record at the time of giving of
notice provided for in this By-Law, who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in this By-Law. In the
event the Corporation calls a special meeting of shareholders for the purpose of
electing one or more directors to the Board of Directors, any shareholder may
nominate a person or persons (as the case may be) for election to such
position(s) as specified in the Corporation's notice of meeting pursuant to such
clause (b), if the shareholder's notice required by paragraph (A)(2) of this
By-Law shall be delivered to the Secretary at the principal executive offices of
the Corporation not earlier than the close of business on the 120th calendar day
prior to such special meeting and not later than the close of business on the
later of the 90th calendar day prior to such special meeting or the 10th
calendar day following the day on which public announcement is first made of the
date of such special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting of shareholders commence a
new time period for the giving of a shareholder's notice as described above.
(C) GENERAL. (1) Only such persons who are nominated in accordance with the
procedures set forth in this By-Law shall be eligible to serve as directors and
only such business shall be conducted at a meeting of shareholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this By-Law. Except as otherwise provided by law, the Articles of Incorporation
or these By-Laws, the chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this By-Law and, if any proposed nomination or business
is not in compliance with this By-Law, to declare that such defective proposal
or nomination shall be disregarded.
(2) For purposes of this By-Law, "public announcement" shall mean disclosure in
a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-Law, a shareholder shall
also comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in this By-Law.
Nothing in this By-Law shall be deemed to affect any rights (i) of shareholders
to request inclusion of proposals in the Corporation's proxy statement pursuant
to Rule 14a-8 under the Exchange Act or (ii) of the holders of any class or
series of stock having a preference over the Common Stock as to dividends or
upon liquidation to elect directors under specified circumstances.
Section 2.10. Conduct of Meetings. The Board of Directors may to the extent not
prohibited by law adopt such rules and regulations for the conduct of the
meeting of shareholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of
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shareholders shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairman, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may to the extent not prohibited by
law include, without limitation, the following: (i) the establishment of an
agenda or order of business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iii)
limitations on attendance at or participation in the meeting to shareholders of
record of the Corporation, their duly authorized and constituted proxies or such
other persons as the chairman of the meeting shall determine; (iv) restrictions
on entry to the meeting after the time fixed for the commencement thereof; and
(v) limitations on the time allotted to questions or comments by participants.
The date and time of the opening and the closing of the polls for each matter
upon which the shareholders will vote at a meeting shall be announced at the
meeting by the person presiding over the meeting. Unless, and to the extent,
determined by the Board of Directors or the chairman of the meeting, meetings of
shareholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
Section 2.11. Inspectors of Elections. The Board of Directors may appoint, or
may authorize the Chairman of the Board to appoint, one or more inspectors,
which inspector or inspectors may include individuals who serve the Corporation
in other capacities, including, without limitation, as officers, employees,
agents or representatives, to act at the meetings of shareholders and make a
written report thereof. If no inspector has been appointed to act or is able to
act at a meeting of shareholders, the chairman of the meeting shall appoint one
or more inspectors to act at the meeting. Each inspector, before discharging
such person's duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of such
person's ability. The inspectors shall, by majority vote, resolve all questions
regarding voting of shares, including the shares represented at the meeting, the
qualification of voters, the validity of proxies, the existence of a quorum as
to any voting group, and the acceptance, rejection and tabulation of votes.
Section 2.12. Shareholders' List. Before each meeting of shareholders, the
Secretary of the Corporation shall prepare an alphabetical list of the
shareholders entitled to notice of such meeting. The list shall be arranged by
voting group (and within each voting group by class or series of shares) and
show the address of and number of shares held by each shareholder. The list
shall be kept on file at the principal office of the Corporation, or at a place
identified in the meeting notice in the city where the meeting will be held, for
the period beginning two business days after notice of the meeting is given and
continuing through the meeting, and shall be available for inspection on written
demand by any shareholder, personally or by or with such shareholder's
representative, at any time during regular business hours. The list shall also
be available at the meeting and shall be subject to inspection on written demand
by any shareholder, personally or by or with such shareholder's representative,
at any time during the meeting or any adjournment thereof.
ARTICLE III
Board of Directors
Section 3.1. General Powers. The business and affairs of the Corporation shall
be managed under the direction of the Board of Directors. In addition to the
powers and authorities by these By-Laws expressly conferred upon them, the Board
of Directors may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by statute or by the Articles of Incorporation
or by these By-Laws required to be
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exercised or done by the shareholders.
Section 3.2. Number and Qualifications. The number of directors constituting the
Board of Directors shall be not less than twelve nor more than twenty-four, as
may be fixed from time to time by the Board of Directors. A director must be a
shareholder of the Corporation.
Section 3.3. Election of Directors; Classes. The directors, other than those who
may be elected by the holders of any class of stock having a preference over the
Common Stock as to dividends or upon liquidation to elect directors under
specified circumstances, shall be classified, with respect to the time for which
they severally hold office into three classes, as nearly equal in number as
possible. Such classes shall originally consist of one class (Class I) of seven
directors who shall be elected at the annual meeting of shareholders held in
1991 for a term expiring at the annual meeting of shareholders held in 1992; a
second class (Class II) of six directors who shall be elected at the annual
meeting of shareholders held in 1991 for a term expiring at the annual meeting
of shareholders to be held in 1993; and a third class (Class III) of six
directors who shall be elected at the annual meeting of shareholders held in
1991 for a term expiring at the annual meeting of shareholders to be held in
1994; with each class to hold office until its successor is elected and
qualified. The Board of Directors shall increase or decrease the number of
directors in one or more classes as may be appropriate whenever it increases or
decreases the number of directors pursuant to the Articles of Incorporation and
Section 3.2 of these By-Laws, in order to ensure that the three classes shall be
as nearly equal in number as possible. At each annual meeting of shareholders,
the successors of the class of directors whose term expires at that meeting
shall be elected to hold office for a term expiring at the annual meeting of
shareholders held in the third year following the year of their election.
Section 3.4. Removal. Subject to the rights of any class of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances, a director may be removed from office
only with cause. "Cause" for removal of a director under this Section 3.4 means
fraudulent or dishonest acts, or gross abuse of authority in the discharge of
duties to the Corporation, and must be established after written notice of
specific charges and an opportunity to meet and refute such charges.
Section 3.5. Newly Created Directorships; Vacancies. Except as may be otherwise
provided for or fixed by or pursuant to any provisions of the Articles of
Incorporation relating to the rights of the holders of any class of stock having
a preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances, newly created directorships resulting
from any increase in the number of directors and any vacancies on the Board of
Directors resulting from death, resignation, disqualification, removal or other
cause shall be filled only by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the Board
of Directors. Any director elected in accordance with the preceding sentence
shall hold office until the expiration of the full term of the class for which
such director is elected and until such director's successor shall have been
elected and qualified. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
Section 3.6. Compensation of Directors. Directors, as such, may receive,
pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including, without limitation,
their services as members of committees of the Board of Directors.
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ARTICLE IV
MEETINGS OF DIRECTORS
Section 4.1. Regular Meetings. A regular meeting of the Board of Directors shall
be held without other notice than this By-Law as soon as practicable after the
annual meeting of shareholders. The Board of Directors may, by resolution,
provide the time and place for the holding of additional regular meetings
without other notice than such resolution.
Section 4.2. Special Meetings. Special meetings of the Board of Directors shall
be called at the request of the Chairman of the Board or a majority of the Board
of Directors then in office. The person or persons authorized to call special
meetings of the Board of Directors may fix the place and time of the meetings.
Section 4.3. Notice. Notice of any special meeting of directors shall be given
to each director at such director's business or residence in writing by hand
delivery, first-class or overnight mail or courier service, facsimile
transmission or orally by telephone. If mailed by first-class mail, such notice
shall be deemed adequately delivered when deposited in the United States mails
so addressed, with postage thereon prepaid, at least 5 calendar days before such
meeting. If by overnight mail or courier service, such notice shall be deemed
adequately delivered when the notice is delivered to the overnight mail or
courier service company at least 24 hours before such meeting. If by facsimile
transmission, such notice shall be deemed adequately delivered when the notice
is transmitted at least 12 hours before such meeting. If by telephone or by hand
delivery, the notice shall be given at least 12 hours prior to the time set for
the meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice of such meeting.
Section 4.4. Quorum and Manner of Acting. Unless the Articles of Incorporation
or these By-Laws provide otherwise, a majority of the number of directors fixed
pursuant to these By-Laws shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors. Unless required by law or the
Articles of Incorporation or these By-Laws provide otherwise, the affirmative
vote of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors.
Section 4.5. Action by Consent of Board of Directors. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if all members of the Board of Directors consent thereto in
writing, whether before or after such action, and the writing or writings are
included with the minutes or filed with the corporate records.
Section 4.6. Conference Telephone Meetings. Members of the Board of Directors
may participate in a meeting of the Board of Directors by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at such meeting.
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ARTICLE V
Committees of the Board
Section 5.1. Management Committee. The Board of Directors shall annually elect
from its members a Management Committee consisting of two or more persons who
are officers of the Corporation and which shall include the Chairman of the
Board who shall act as chairman.
The Management Committee may exercise all of the authority of the Board of
Directors, except that the Management Committee may not (i) authorize
distributions; (ii) approve, or propose to shareholders, action that is required
by law to be approved by shareholders; (iii) fill vacancies on the Board of
Directors or on any of its committees; (iv) amend the Articles of Incorporation;
(v) adopt, amend or repeal By-Laws; (vi) approve a plan of merger not requiring
shareholder approval; (vii) authorize or approve reacquisition of shares, except
according to a formula or method prescribed by the Board of Directors; or (viii)
authorize or approve the issuance or sale or contract for the sale of shares, or
determine the designation and relative rights, preferences and limitations of a
class or series of shares, except within limits specifically prescribed by the
Board of Directors. Any resolutions adopted or other action taken by the
Management Committee within the scope of its authority shall be deemed for all
purposes to be adopted or taken by the Board of Directors.
The Management Committee shall fix its own rules of procedure and shall meet as
provided by such rules or at the call of the chairman or any two members
thereof. The Management Committee shall elect a secretary who need not be a
member thereof and minutes of its proceedings shall be kept in minute books
provided for that purpose.
Section 5.2. Nominating Committee. The Board of Directors shall annually elect
from its members a Nominating Committee consisting of the Chairman of the Board
(who shall not vote on matters affecting the Chairman of the Board) and not less
than two other members who are not officers of the Corporation, one of whom
shall be designated as chairman.
The Nominating Committee, subject to any limitations prescribed by the Board of
Directors, shall select and present to the Board of Directors the name(s) of a
person or persons to be considered for nomination or appointment to membership
on the Board of Directors.
The Nominating Committee shall select and present to the Board of Directors the
name(s) of a person or persons to be considered as successor to the Chief
Executive Officer or the President and, in the discretion of the Nominating
Committee, the successors of the immediate associates of such officers.
The Nominating Committee shall conduct periodic review of both management and
non-management director performance and should a director's performance be
judged unsatisfactory over a reasonable period of time, work with the Chairman
of the Board and Chief Executive Officer to remedy the situation.
The Nominating Committee will meet at the direction of the Board of Directors or
at the call of its chairman or any two members thereof. The chairman shall
designate a person who need not be a member thereof to act as secretary and
minutes of its proceedings shall be kept in minute books provided for that
purpose.
Section 5.3. Finance Committee. The Board of Directors shall annually elect from
its
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members a Finance Committee consisting of two or more persons.
The Finance Committee, subject to any limitations prescribed by the Board of
Directors, shall review the financial and fiscal affairs of the Corporation and
shall make recommendations to the Board of Directors with reference to dividend,
financing and fiscal policies of the Corporation, and such other financial
matters as may be assigned from time to time by the Board of Directors.
The Finance Committee shall elect a chairman from among its members and such
person as the chairman shall designate shall act as secretary. Minutes of its
proceedings shall be kept in minute books provided for that purpose. The Finance
Committee shall hold such meetings as shall be necessary from time to time to
carry out its assigned duties. Meetings may be called by the chairman or by any
two members thereof and shall be held at such time and place as specified in the
call for such meeting.
Section 5.4. Audit Committee. The Board of Directors shall annually elect from
such of its members who are not officers of the Corporation an Audit Committee
consisting of two or more persons.
The Audit Committee shall select and recommend to the Board of Directors for its
approval, subject to ratification by the shareholders, outside auditors to
conduct interim and annual audits of the Corporation's books and report thereon
to the Audit Committee. Subject to any limitations prescribed by the Board of
Directors, the Audit Committee shall:
1) Confer with the external auditors, determine the scope of the
auditing of the books and accounts of the Corporation, and
receive and review the reports submitted by the auditors;
2) Meet with the appropriate officers of the Corporation to
review and examine procedures and methods employed in
connection with the Corporation's internal audit program;
3) Confer with the controller on accounting, disclosure and
internal control issues; and
4) Report its findings to the Board of Directors from time to
time with such recommendations as it may deem appropriate.
The Audit Committee shall elect a chairman from among its members and a
secretary who need not be a member thereof. Minutes of its proceedings shall be
kept in minute books provided for that purpose. The Audit Committee shall meet
at such time or times as it may consider necessary to perform its assigned
duties. Meetings of the Audit Committee may be called by the chairman or by any
two members thereof and shall be held at such time and place as specified in the
call for such meeting.
Section 5.5. Compensation Committee. The Board of Directors shall annually elect
from such of its members who are not officers of the Corporation a Compensation
Committee consisting of two or more persons, one of whom shall be designated as
chairman.
The Compensation Committee shall, upon recommendation of the Chairman of the
Board, fix the salaries and other compensation, if any, of all employees of the
Corporation, except the Chairman of the Board, Vice Chairman of the Board,
President and any other officer the
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Board of Directors may designate, whose salaries are at a rate at or above a
level determined from time to time by the Board of Directors. The Committee
shall report at the next meeting of the Board of Directors any action it has
taken pursuant to this authority.
The Board of Directors shall, upon recommendation of the Compensation Committee,
fix the salary and other compensation, if any, of the Chairman of the Board,
Vice Chairman of the Board and any President. The Committee shall also recommend
to the Board of Directors the compensation to be paid to members of the Board of
Directors. The salaries of all other employees and agents of the Corporation
shall be fixed in accordance with procedures adopted from time to time by the
Management Committee. The Chairman of the Board shall periodically report to the
Compensation Committee, in such manner and in such scope as the Committee shall
direct, the salaries so fixed.
The Compensation Committee shall meet on call of its chairman. An officer of the
Corporation designated by the chairman shall act as secretary and minutes of its
proceedings shall be kept in minute books provided for that purpose.
Section 5.6. Corporate Performance Review Committee. The Board of Directors
shall annually elect from such of its members who are not officers of the
Corporation a Corporate Performance Review Committee consisting of two or more
persons, one of whom shall be designated as chairman.
The Corporate Performance Review Committee will monitor and make recommendations
for improving the overall performance of the Corporation. At the policy level,
the Committee will determine the adequacy of and support the Corporation's
emphasis on continuous improvement and will endeavor to increase the knowledge
and understanding by the entire Board of Directors of continuous improvement
opportunities internally and external factors which influence corporate
performance and operations.
The Corporate Performance Review Committee shall meet on call of its chairman.
An officer of the Corporation designated by the chairman shall act as secretary
and minutes of its proceedings shall be kept in minute books provided for that
purpose.
Section 5.7. Quorum and Manner of Acting of Committees. A majority of the
members of a committee of the Board of Directors shall be necessary to
constitute a quorum and the affirmative vote of the majority of the members
present at a meeting at which a quorum is present shall be necessary to
constitute action by the committee. A committee may also act by the written
consent of all members thereof although not convened in a meeting provided that
such written consent is filed with the minute books of the committee.
Section 5.8. Notice, Etc. Notice of meetings of any committee shall be given to
each member of the committee in the manner provided for in Section 4.3 of these
By-Laws. The Board of Directors shall have power at any time to fill vacancies
in, to change the membership of, or to dissolve any such committee. Nothing
herein shall be deemed to prevent the Board of Directors from appointing one or
more committees consisting in whole or in part of persons who are not directors
of the Corporation; provided, however, that no such committee shall have or may
exercise any authority of the Board of Directors.
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ARTICLE VI
Officers
Section 6.1. Elected Officers. The elected officers of the Corporation shall be
a Chairman of the Board, a President, a Secretary, a Treasurer, a Controller and
such other officers (including, without limitation, Executive Vice Presidents
and Senior Vice Presidents and Vice Presidents) as the Board of Directors from
time to time may deem proper. The Chairman of the Board and the President shall
be chosen from among the directors. All officers elected by the Board of
Directors shall each have such powers and duties as generally pertain to their
respective offices, subject to the specific provisions of this Article VI. Such
officers shall also have such powers and duties as from time to time may be
conferred by the Board of Directors or by any committee thereof. The Board of
Directors or the Management Committee may from time to time appoint such other
officers (including one or more Vice Presidents, Assistant Secretaries and
Assistant Treasurers), as may be necessary or desirable for the conduct of the
business of the Corporation. Such other officers and agents shall have such
duties and shall hold their offices for such terms as shall be provided in these
By-Laws or, to the extent consistent with these By-Laws, as may be prescribed by
the Board of Directors or the Management Committee, as the case may be.
Section 6.2. Election and Term of Office. The elected officers of the
Corporation shall be elected annually by the Board of Directors at the regular
meeting of the Board of Directors held after the annual meeting of shareholders.
If the election of officers shall not be held at such meeting, such election
shall be held as soon thereafter as practicable. Each officer shall hold office
until such person's successor shall have been duly elected and shall have
qualified or until such person's death or until he or she shall resign or shall
be removed pursuant to Section 6.10.
Section 6.3. Chairman of the Board and Chief Executive Officer. The Chairman of
the Board shall be the Chief Executive Officer of the Corporation and shall be
responsible for the general management of the affairs of the Corporation and
shall perform all duties incidental to such person's office which may be
required by law and all such other duties as are properly required of the
Chairman of the Board by the Board of Directors. The Chairman of the Board shall
preside at all meetings of shareholders and of the Board of Directors and shall
make reports to the Board of Directors and the shareholders, and shall see that
all orders and resolutions of the Board of Directors and of any committee
thereof are carried into effect. The Chairman of the Board may also serve as
President, if so elected by the Board.
Section 6.4. President. The President shall act in a general executive capacity
and shall assist the Chairman of the Board in the administration and operation
of the Corporation's business and general supervision of its policies and
affairs. The President shall in the absence of or because of the inability to
act of the Chairman of the Board, perform all duties of the Chairman of the
Board and preside at all meetings of shareholders and of the Board of Directors.
Section 6.5. Vice Presidents. The Executive Vice Presidents, the Senior Vice
Presidents and the Vice Presidents shall have such powers and duties as may be
prescribed for them, respectively, by the Board of Directors, the Management
Committee or the Chairman of the Board. Each of such officers shall report to
the Chairman of the Board or such other officer as the Chairman of the Board
shall direct.
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Section 6.6. Secretary. The Secretary shall attend all meetings of the
shareholders and of the Board of Directors, shall keep a true and faithful
record thereof in proper books and shall have the custody and care of the
corporate seal, records, minute books and stock books of the Corporation and of
such other books and papers as in the practical business operations of the
Corporation shall naturally belong in the office or custody of the Secretary or
as shall be placed in the Secretary's custody by order of the Board of Directors
or the Management Committee. The Secretary shall keep a suitable record of the
addresses of shareholders and shall, except as may be otherwise required by
statute or these By-Laws, sign and issue all notices required for meetings of
shareholders or of the Board of Directors. The Secretary shall sign all papers
to which the Secretary's signature may be necessary or appropriate, shall affix
and attest the seal of the Corporation to all instruments requiring the seal,
shall have the authority to certify the By-Laws, resolutions of the shareholders
and Board of Directors and other documents of the Corporation as true and
correct copies thereof and shall have such other powers and duties as are
commonly incidental to the office of Secretary and as may be prescribed by the
Board of Directors, the Management Committee or the Chairman of the Board.
Section 6.7. Treasurer. The Treasurer shall have charge of and supervision over
and be responsible for the funds, securities, receipts and disbursements of the
Corporation; cause the moneys and other valuable effects of the Corporation to
be deposited in the name and to the credit of the Corporation in such banks or
trust companies or with such bankers or other depositories as shall be selected
in accordance with resolutions adopted by the Board of Directors; cause the
funds of the Corporation to be disbursed by checks or drafts upon the authorized
depositories of the Corporation, and cause to be taken and preserved proper
vouchers for all moneys disbursed; render to the proper officers and to the
Board of Directors, the Management Committee and the Finance Committee, whenever
requested, a statement of the financial condition of the Corporation and of all
his or her transactions as Treasurer; cause to be kept at the principal
executive offices of the Corporation correct books of account of all its
business and transactions; and, in general, perform all duties incident to the
office of Treasurer and such other duties as are given to him or her by the
By-Laws or as may be assigned to him or her by the Chairman of the Board or the
Board of Directors.
Section 6.8. Controller. The Controller shall be the chief accounting officer of
the Corporation; shall keep full and accurate accounts of all assets,
liabilities, commitments, revenues, costs and expenses, and other financial
transactions of the Corporation in books belonging to the Corporation, and
conform them to sound accounting principles with adequate internal control;
shall cause regular audits of these books and records to be made; shall see that
all expenditures are made in accordance with procedures duly established, from
time to time, by the Corporation; shall render financial statements upon the
request of the Board of Directors; and, in general, shall perform all the duties
ordinarily connected with the office of Controller and such other duties as may
be assigned to him or her by the Chairman of the Board or the Board of
Directors.
Section 6.9. Assistant Secretaries, Assistant Treasurers and Assistant
Controllers. Assistant Secretaries, Assistant Treasurers and Assistant
Controllers, when elected or appointed, shall respectively assist the Secretary,
the Treasurer and the Controller in the performance of the respective duties
assigned to such principal officers, and in assisting such principal officer,
each of such assistant officers shall for such purpose have the powers of such
principal officer; and, in case of the absence, disability, death, resignation
or removal from office of any principal officer, such principal officer's duties
shall, except as
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otherwise ordered by the Board of Directors or the Management Committee,
temporarily devolve upon such assistant officer as shall be designated by the
Chairman of the Board.
Section 6.10. Removal. Any officer or agent may be removed by the affirmative
vote of a majority of the directors then in office whenever, in their judgment,
the best interests of the Corporation would be served thereby. In addition, any
officer or agent appointed by the Management Committee may be removed by the
Management Committee whenever, in its judgment, the best interests of the
Corporation would be served thereby. Any removal shall be without prejudice to
the contract rights, if any, of the person so removed.
Section 6.11. Vacancies. A newly created elected office and a vacancy in any
elected office because of death, resignation or removal may be filled by the
Board of Directors for the unexpired portion of the term at any meeting of the
Board of Directors. Any vacancy in an office appointed by the Management
Committee because of death, resignation or removal may be filled by the
Management Committee.
ARTICLE VII
Stock Certificates and Transfers
Section 7.1. Certificates for Shares. The Board of Directors may authorize the
issuance of some or all of the shares of the Corporation's classes or series
without issuing certificates to represent such shares. If shares are represented
by certificates, the certificates shall be in such form as required by law and
as determined by the Board of Directors. Certificates shall be signed, either
manually or in facsimile, by the Chairman of the Board, the President or a Vice
President and by the Secretary or Treasurer or an Assistant Secretary or an
Assistant Treasurer. In case any officer or officers who shall have signed, or
whose facsimile signature or signatures shall have been used on, any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures shall
have been used thereon had not ceased to be such officer or officers of the
Corporation and the issuance and delivery of any such certificate or
certificates shall be conclusive evidence of such adoption. All certificates for
shares shall be consecutively numbered or otherwise identified and entered into
the stock transfer books of the Corporation. When shares are represented by
certificates, the Corporation shall issue and deliver to each shareholder to
whom such shares have been issued or transferred certificates representing the
shares owned by such shareholder. When shares are not represented by
certificates, then within a reasonable time after the issuance or transfer of
such shares, the Corporation shall send the shareholder to whom such shares have
been issued or transferred a written statement of the information required by
law to be on certificates.
Section 7.2. Share Transfer Records. The Corporation shall maintain share
transfer records, containing the name and address of each shareholder of record
and the number and class or series of shares held by such shareholder. Transfers
of shares of the Corporation shall be made only on the share transfer records of
the Corporation by the holder of record thereof or by a duly authorized agent,
transferee or legal representative and only upon surrender for cancellation of
the certificate for such shares (if the shares are represented by certificates).
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Section 7.3. Lost, Stolen or Destroyed Certificates. No certificate for shares
of stock in the Corporation shall be issued in place of any certificate alleged
to have been lost, destroyed or stolen, except on production of such evidence of
such loss, destruction or theft and on delivery to the Corporation of a bond of
indemnity in such amount, upon such terms and secured by such surety, as the
Board of Directors or any financial officer may in its or such person's
discretion require. A new certificate may be issued without requiring any bond
if the Board of Directors or such financial officer so determines.
Section 7.4. Fixing Record Date. The Board of Directors may fix a future date as
the record date for one or more voting groups in order to determine the
shareholders entitled to notice of a meeting of shareholders, to vote or to take
any other action. Such record date may not be more than 70 days before the
meeting or action requiring a determination of shareholders. A determination of
shareholders entitled to notice of or to vote at a meeting of shareholders is
effective for any adjournment of the meeting unless the Board of Directors fixes
a new record date for the adjourned meeting, which it must do if the meeting is
adjourned to a date more than 120 days after the date fixed for the original
meeting. If no record date is fixed by the Board of Directors for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, the close of business on the day before the first notice of the
meeting is delivered to shareholders shall be the record date for such
determination of shareholders. The Board of Directors may fix a date as the
record date for determining shareholders entitled to a distribution or share
dividend. If no record date is fixed by the Board of Directors for such
determination, it is the date the Board of Directors authorizes the distribution
or share dividend.
Section 7.5. Holder of Record. Except as otherwise required by law, the
Corporation may treat the person in whose name the shares stand of record on its
books as the absolute owner of the shares and the person exclusively entitled to
receive notification and distributions, to vote and to otherwise exercise the
rights, powers and privileges of ownership of such shares.
ARTICLE VIII
Contracts, Checks and Drafts, Deposits and Proxies
Section 8.1. Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
Section 8.2. Checks and Drafts. All checks, drafts or other orders for the
payment of money, issued in the name of the Corporation, shall be signed by such
officer or officers, agent or agents of the Corporation and in such manner as
shall from time to time be determined by the Board of Directors.
Section 8.3. Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in such
depositories as may be selected by or under the authority of the Board of
Directors.
Section 8.4. Proxies. Unless otherwise provided by the Board of Directors, the
Chairman of the Board, the President or any Executive Vice President, Senior
Vice President or Vice President may from time to time appoint an attorney or
attorneys or agent or agents of the
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Corporation, in the name and on behalf of the Corporation, to cast the votes
which the Corporation may be entitled to cast as the holder of stock or other
securities in any other corporation, any of whose stock or other securities may
be held by the 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, and may
instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent, and may execute or cause to be executed in the
name and on behalf of the Corporation and under its corporate seal or otherwise,
all such written proxies or other instruments as he or she may deem necessary or
proper in the premises.
ARTICLE IX
Indemnification
Section 9.1. Indemnification. Any person who is or was serving as a director,
officer, employee or agent of the Corporation or who, at the request of the
Corporation, is or was serving as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise or as
a trustee or administrator under an employee benefit plan, shall be indemnified
by the Corporation, to the fullest extent permitted by law, against (a)
litigation expenses, including costs, expenses and reasonable attorneys' fees
incurred by any such person in connection with any threatened, pending or
completed action, suit or proceedings, whether civil, criminal, administrative
or investigative, whether formal or informal, and whether or not brought by or
on behalf of the Corporation, arising out of such person's status as such or
such person's activities in any of the foregoing capacities, (b) liability,
including payments made by such person in satisfaction of any judgment, money
decree, fine (including an excise tax assessed with respect to an employee
benefit plan), penalty or settlement for which such person may have become
liable in any such action, suit or proceeding, and (c) reasonable costs,
expenses and attorneys' fees incurred by such person in connection with the
enforcement of the indemnification rights provided herein. Any person who is or
was serving in any of the foregoing capacities for or on behalf of the
Corporation shall be conclusively deemed to be doing or to have done so in
reliance upon, and as consideration for, the indemnification rights provided
herein.
Any such litigation expenses shall be paid by the Corporation in advance of the
final disposition of any action, suit or proceeding upon receipt of an unsecured
written promise by or on behalf of any such person to repay such amount unless
it shall ultimately be determined that such person is entitled to be indemnified
by the Corporation against such expenses.
The rights of indemnification provided herein (which shall be deemed to be a
contract between any such person and the Corporation enforceable on the part of
such person notwithstanding any subsequent amendment or repeal of this By-Law)
shall inure to the benefit of the estates or legal representatives of any such
person and shall not be exclusive of any other rights to which such person may
be entitled apart from this By-Law, by contract, resolution or otherwise.
ARTICLE X
Miscellaneous
Section 10.1. Fiscal Year. The fiscal year of the Corporation shall begin on the
first day of
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January in each year and shall end on the thirty-first day of December of such
year.
Section 10.2. Distributions. The Board of Directors may from time to time
authorize, and the Corporation may grant, distributions and share dividends to
its shareholders pursuant to law and subject to the provisions of the Articles
of Incorporation.
Section 10.3. Seal. The corporate seal of the Corporation shall be circular in
form and shall consist of two concentric circles between which is the name of
the Corporation and the location of its principal office and in the center of
which is inscribed the word "SEAL". The corporate seal may be used by causing it
or a facsimile thereof to be impressed or reproduced or otherwise.
Section 10.4. Waiver of Notice. Whenever any notice is required to be given to
any shareholder or director of the Corporation under the provisions of the North
Carolina Business Corporation Law or these By-Laws, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of such
notice. Neither the business to be transacted at, nor the purpose of, any annual
or special meeting of the shareholders or the Board of Directors or committee
thereof need be specified in any waiver of notice of such meeting.
Section 10.5. Time Periods. In applying any provision of these By-Laws which
requires that an act be done or not be done a specified number of days prior to
an event or that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded, and the day of the event shall be included.
Section 10.6. Resignations. Any director or any officer, whether elected or
appointed, may resign at any time by giving written notice of such resignation
to the Chairman of the Board or the Secretary, and such resignation shall be
deemed to be effective when communicated unless the notice specifies a later
effective date. No formal action shall be required on behalf of the Corporation
to make any such resignation effective.
Section 10.7. Definitions. Unless the context otherwise requires, terms used in
these By-Laws shall have the meanings assigned to them in the North Carolina
Business Corporation Act to the extent defined therein.
ARTICLE XI
Emergency Provisions
Section 11.1. General. The provisions of this Article shall be operative only
during a national emergency declared by the President of the United States or
the person performing the President's functions, or in the event of a nuclear,
atomic or other attack on the United States or on a locality in which the
Corporation conducts its principal business or customarily holds meetings of its
Board of Directors or its shareholders, or during the existence of any other
catastrophic event or similar emergency, as a result of which a quorum of the
Board of Directors cannot readily be assembled for action. Said provisions in
such event shall override all other By-Laws of the Corporation in conflict with
any provisions of this Article, and shall remain operative during such
emergency, but thereafter shall be inoperative; provided that all actions taken
in good faith pursuant to such
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provisions shall thereafter remain in full force and effect unless and until
revoked by action taken pursuant to the provisions of the By-Laws other than
those contained in this Article.
Section 11.2. Unavailable Directors. All directors of the Corporation who are
not available to perform their duties as directors by reason of physical or
mental incapacity or for any other reason or who are unwilling to perform their
duties or whose whereabouts are unknown shall automatically cease to be
directors, with like effect as if such persons had resigned as directors, so
long as such unavailability continues.
Section 11.3. Authorized Number of Directors. The authorized number of directors
shall be the number of directors remaining after eliminating those who have
ceased to be directors pursuant to Section 11.2, or the minimum number required
by law, whichever number is greater.
Section 11.4. Quorum. The number of directors necessary to constitute a quorum
shall be one-third of the authorized number of directors as specified in Section
11.3, or such other minimum number as, pursuant to the law or lawful decree then
in force, it is possible for the by-laws of a corporation to specify.
Section 11.5. Creation of Emergency Committee. In the event the number of
directors remaining after eliminating those who have ceased to be directors
pursuant to Section 11.2 is less than the minimum number of authorized directors
required by law, then until the appointment of additional directors to make up
such required minimum, all the powers and authorities which the Board of
Directors could by law delegate, including all powers and authorities which the
Board of Directors could delegate to a committee, shall be automatically vested
in an emergency committee, and the emergency committee shall thereafter manage
the affairs of the Corporation pursuant to such powers and authorities and shall
have all other powers and authorities as may by law or lawful decree be
conferred on any person or body of persons during a period of emergency.
Section 11.6. Constitution of Emergency Committee. The emergency committee shall
consist of all the directors remaining after eliminating those who have ceased
to be directors pursuant to Section 11.2, provided that such remaining directors
are not less than three in number. In the event such remaining directors are
less than three in number, the emergency committee shall consist of three
persons, who shall be the remaining director or directors and either one or two
officers or employees of the Corporation, as the remaining director or directors
may in writing designate. If there is no remaining director, the emergency
committee shall consist of the three most senior officers of the Corporation who
are available to serve, and if and to the extent that officers are not
available, the most senior employees of the Corporation. Seniority shall be
determined in accordance with any designation of seniority in the minutes of the
proceedings of the Board of Directors, and in the absence of such designation,
shall be determined by rate of remuneration.
Section 11.7. Powers of Emergency Committee. The emergency committee, once
appointed, shall govern its own procedures and shall have power to increase the
number of members thereof beyond the original number, and in the event of a
vacancy or vacancies therein, arising at any time, the remaining member or
members of the emergency committee shall have the power to fill such vacancy or
vacancies. In the event at any time after its appointment all members of the
emergency committee shall die or resign or become unavailable to act for any
reason whatsoever, a new emergency committee shall be appointed in accordance
with the foregoing provisions of this Article 11.
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Section 11.8. Directors Becoming Available. Any person who has ceased to be a
director pursuant to the provisions of Section 11.2 and who thereafter becomes
available to serve as a director shall automatically become a member of the
emergency committee.
Section 11.9. Election of Board of Directors. The emergency committee shall, as
soon after its appointment as is practicable, take all requisite action to
secure the election of a board of directors, and upon such election all the
powers and authorities of the emergency committee shall cease.
Section 11.10. Termination of Emergency Committee. In the event, after the
appointment of an emergency committee, a sufficient number of persons who ceased
to be directors pursuant to Section 11.2 become available to serve as directors,
so that if they had not ceased to be directors as aforesaid, there would be
sufficient directors to constitute the minimum number of directors required by
law, then all such persons shall automatically be deemed to be reappointed as
directors and the powers and authorities of the emergency committee shall
terminate.
Section 11.11. Nonexclusive Powers. The emergency powers provided in this
Article 11 shall be in addition to any powers provided by law.
ARTICLE XII
Amendments
Section 12.1. Amendments. Except as required by law or as otherwise provided in
the Articles of Incorporation or in a By-Law adopted by the shareholders, these
By-Laws may be amended or repealed and new By-Laws may be adopted by the Board
of Directors. No By-Law adopted, amended or repealed by the shareholders shall
be readopted, amended or repealed by the Board of Directors, unless the Articles
of Incorporation or a By-Law adopted by the shareholders authorizes the Board of
Directors to adopt, amend or repeal that particular By-Law or the By-Laws
generally.
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EXHIBIT 5
August 28, 1997
Duke Energy Corporation
422 South Church Street
Charlotte, NC 28242-0001
Gentlemen:
I am a Deputy General Counsel of Duke Energy Corporation, a North Carolina
corporation (the "Company"), and in such capacity I have examined the Company's
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "1933 Act"), for the registration of
1,000,000 shares of the Company's Common Stock, without par value (the
"Shares"), which Shares will be issued under the Company's Retirement Savings
Plan (the "Retirement Savings Plan") and the Employees' Stock Ownership Plan
(the "ESOP").
I have examined and am familiar with originals or copies, certified or
otherwise identified to my satisfaction, of such documents, corporate records,
certificates of public officials and officers of the Company and such other
instruments as I have deemed necessary or appropriate as a basis for the
opinions expressed below.
Based on the foregoing, I am of the opinion that the Shares are duly
authorized and when the Shares have been issued and delivered in accordance with
the terms of the Retirement Savings Plan and the terms of the ESOP, such Shares
will be legally issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving such consent, I do not thereby admit that I
come within the category of persons whose consent is required under Section 7 of
the 1933 Act, as amended, or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/S/ PETER C. BUCK
PETER C. BUCK
<PAGE>
EXHIBIT 23(A)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of Duke Energy Corporation of our report dated February 7, 1997
appearing in the annual report on Form 10-K of Duke Power Company for the year
ended December 31, 1996.
DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Charlotte, North Carolina
August 28, 1997
<PAGE>
EXHIBIT 23(B)
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference in this registration statement on
Form S-8 of Duke Energy Corporation of our report dated January 16, 1997, on
the consolidated financial statements of PanEnergy Corp as of December 31, 1996
and 1995, and for each of the years in the three-year period ended December 31,
1996, appearing in the Annual Report on Form 10-K of PanEnergy Corp for the
year ended December 31, 1996, and incorporated by reference into the
Current Report on Form 8-K of Duke Energy Corporation dated June 18, 1997.
KPMG Peat Marwick LLP
Houston, Texas
August 28, 1997
<PAGE>
EXHIBIT 23(C)
CONSENT OF COUNSEL
The consent of Peter C. Buck, Esq., is contained in his opinion filed as
Exhibit 5 to this Registration Statement.
<PAGE>
EXHIBIT 24(A)
DUKE ENERGY CORPORATION
POWER OF ATTORNEY
Registration Statements under the Securities Act of 1933
with respect to up to 7,283,130 shares of Common Stock, without par value, of
Duke Energy Corporation to be issued in connection with
various employee benefit and/or stock purchase and dividend reinvestment plans
of said Duke Energy Corporation and its subsidiaries
(Registration Statements)
The undersigned DUKE ENERGY CORPORATION, a North Carolina corporation, and
certain of its officers and/or directors, do each hereby constitute and appoint
Richard J. Osborne, Robert S. Lilien and W. Edward Poe, Jr., and each of them,
to act as attorneys-in-fact for and in the respective names, places, and stead
of the undersigned, to execute, seal, sign, and file with the Securities and
Exchange Commission the Registration Statements of said Duke Energy Corporation
and any and all amendments thereto, or amendments to existing Registration
Statements, hereby granting to said attorneys-in-fact, and each of them, full
power and authority to do and perform all and every act and thing whatsoever
requisite, necessary, or proper to be done in and about the premises, as fully
to all intents and purposes as the undersigned, or any of them, might or could
do if personally present, hereby ratifying and approving the acts of said
attorneys-in-fact.
Executed the 18th day of June, 1997.
DUKE ENERGY CORPORATION
By /s/ R. B. PRIORY
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
(Corporate Seal)
ATTEST:
<TABLE>
<S> <C>
/s/ ROBERT T. LUCAS III Assistant Secretary
ROBERT T. LUCAS III
/s/ R. B. PRIORY Chairman and Chief Executive Officer
R. B. PRIORY (Principal Executive Officer and Director)
/s/ RICHARD J. OSBORNE Executive Vice President and Chief Financial Officer
RICHARD J. OSBORNE (Principal Financial Officer)
/s/ JEFFREY L. BOYER Vice President and Corporate Controller
JEFFREY L. BOYER (Principal Accounting Officer)
/s/ PAUL M. ANDERSON (Director)
PAUL M. ANDERSON
/s/ G. ALEX BERNHARDT (Director)
G. ALEX BERNHARDT
/s/ ROBERT J. BROWN (Director)
ROBERT J. BROWN
</TABLE>
<PAGE>
<TABLE>
<S> <C>
/s/ WILLIAM A. COLEY (Director)
WILLIAM A. COLEY
/s/ WILLIAM T. ESREY (Director)
WILLIAM T. ESREY
/s/ ANN MAYNARD GRAY (Director)
ANN MAYNARD GRAY
/s/ DENNIS R. HENDRIX (Director)
DENNIS R. HENDRIX
/s/ HAROLD S. HOOK (Director)
HAROLD S. HOOK
/s/ GEORGE DEAN JOHNSON, JR. (Director)
GEORGE DEAN JOHNSON, JR.
/s/ W. W. JOHNSON (Director)
W. W. JOHNSON
/s/ MAX LENNON (Director)
MAX LENNON
/s/ LEO E. LINBECK, JR. (Director)
LEO E. LINBECK, JR.
/s/ JAMES G. MARTIN (Director)
JAMES G. MARTIN
/s/ BUCK MICKEL (Director)
BUCK MICKEL
/s/ RUSSELL M. ROBINSON, II (Director)
RUSSELL M. ROBINSON, II
</TABLE>
<PAGE>
EXHIBIT 24(B)
DUKE ENERGY CORPORATION
CERTIFICATE
The undersigned officer of DUKE ENERGY CORPORATION, a North Carolina
corporation (the "Corporation"), does hereby certify that attached hereto is a
true and complete copy of a resolution adopted at a meeting of the Board of
Directors of the Corporation with respect to the Registration Statements, which
resolution is presently in full force and effect.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and affixed
the corporate seal of the Corporation this 28th day of August, 1997.
/s/ ROBERT T. LUCAS III
ROBERT T. LUCAS III
ASSISTANT SECRETARY
(Corporate Seal)
FURTHER RESOLVED, that each officer and director who may be required to
execute such registration statements or amendments thereto or amendments to
existing registration statements (whether on behalf of the Corporation or as an
officer or director thereof or by attesting the seal of the Corporation or
otherwise) be and hereby is authorized to execute a power of attorney appointing
Richard J. Osborne, Robert S. Lilien and W. Edward Poe, Jr., and each of them,
as true and lawful attorneys and agents to execute in his or her name, place and
stead (in any such capacity) such registration statements or amendments thereto
or amendments to existing registration statements and all instruments necessary
or advisable in connection therewith, to attest the seal of the Corporation
thereon and to file the same with the Securities and Exchange Commission, each
of said attorneys and agents to have power to act with or without the others and
to have full power and authority to do and perform in the name and on behalf of
each of such officers and directors, or both, as the case may be, every act
whatsoever necessary or advisable to be done in the premises as fully and to all
intents and purposes as any such officer or director might or could do in
person;
