SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM U5S
ANNUAL REPORT
For the Year Ended December 31, 1994
Filed pursuant to the Public Utility Holding Company Act of 1935
by
GENERAL PUBLIC UTILITIES CORPORATION (File No. 30-126)
100 Interpace Parkway, Parsippany, New Jersey 07054
<PAGE>
GENERAL PUBLIC UTILITIES CORPORATION
FORM U5S
ANNUAL REPORT FOR THE YEAR ENDED DECEMBER 31, 1994
TABLE OF CONTENTS
Item
No. Title Page
1. System Companies and Investments Therein 1-4
2. Acquisitions or Sales of Utility Assets 4
3. Issue, Sale, Pledge, Guarantee or Assumption
of System Securities 5-7
4. Acquisition, Redemption or Retirement of
System Securities 8-11
5. Investments in Securities of Nonsystem Companies 12
6. Officers and Directors 13-21
7. Contributions and Public Relations 22-23
8. Service, Sales and Construction Contracts 24-26
9. Wholesale Generators and Foreign Utility Companies 27-33
10. Financial Statements and Exhibits:
Consolidating Financial Statements,
Schedules and Notes 34-41
Exhibits 42-58
Signature Page 59
<PAGE>
<TABLE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1994
<CAPTION>
Number of Common Shares
or Principal Amount % of Issuer Owner's
Name of Company Owned Voting Power Book Value Book Value
General Public Utilities Corporation (GPU):
<S> <C> <C> <C>
Jersey Central Power & Light Company (JCP&L)(a) 15,371,270 shs. 100% $1,361,668,498 $1,361,668,498
Metropolitan Edison Company (Met-Ed)(a)(b) 859,500 shs. 100 598,630,745 602,704,307
York Haven Power Company 500 shs. 100 12,349,945 12,349,945
Met-Ed Preferred Capital, Inc. (r) 100 shs. 100 13,553,091 13,553,091
Met-Ed Capital L.P. (f) 100 3,092,899 3,092,899
Pennsylvania Electric Company (Penelec)(a)(b) 5,290,596 shs. 100 658,268,948 662,408,165
Nineveh Water Company 5 shs. 100 1,490,233 1,444,198
Waverly Electric Light & Power Company 600 shs. 100 60,000 15,000
Penelec Preferred Capital, Inc. (s) 100 shs. 100 14,268,731 14,268,731
Penelec Capital L.P. (f) 100 3,247,524 3,247,524
GPU Service Corporation (GPUSC) (c) 5,000 shs. 100 (649,616) 50,000
GPU Nuclear Corporation (GPUN) (d) 2,500 shs. 100 50,000 50,000
Energy Initiatives, Inc. (EI) (e) (t) 100 shs. 100 118,178,489 110,861,708
Elmwood Energy Corporation (e) 10 shs. 100 5,947,512 5,947,512
Prime Energy, Limited Partnership (e) (g) 50 9,589,001 4,825,358
Camchino Energy Corporation (e) 100 shs. 100 555,947 555,947
OLS Power, Limited Partnership (e) (g) 50 (4,232,390) -
OLS Acquisition Corporation (e) 100 shs. 100 (4,241,028) (4,241,028)
OLS Energy - Berkeley (e) 1,000 shs. 100 (2,558,323) (2,558,323)
OLS Energy - Chino (e) 1,000 shs. 100 541,348 541,348
OLS Energy - Camarillo (e) 1,000 shs. 100 (2,190,584) (2,190,584)
Armstrong Energy Corporation (e) (Inactive) 100 shs. 100 1,000 1,000
AEC/REF-Fuel, Limited Partnership (e) (Inactive) (h) 50 - -
Geddes Cogeneration Corporation (e) 100 shs. 100 17,577,867 17,577,867
Onondaga Cogeneration, Limited Partnership (e) (g) 50 31,044,834 17,261,996
NCP Energy, Inc. (e) (u) 1,000 shs. 100 43,934,802 43,924,802
NCP Lake Power, Inc. (e) 1,000 shs. 100 274,014 274,014
Lake Investment, Limited Partnership (e) (i) 100 7,983,851 7,983,851
Lake Cogen, Ltd. (e) (j) 41 (4,748,557) 8,055,104
NCP Gem, Inc. (e) 1,000 shs. 100 8,286,936 8,286,936
Umatilla Groves, Inc. (e) 1,000 shs. 100 1,000 1,000
NCP Dade Power, Inc. (e) 1,000 shs. 100 343,444 343,444
Dade Investment, Limited Partnership (e) (i) 100 23,012,227 23,012,227
Pasco Cogen, Ltd. (e) (k) 47 113,073,741 23,239,474
</TABLE>
-1-
<PAGE>
<TABLE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1994 (Continued):
<CAPTION>
Number of Common Shares
or Principal Amount % of Issuer Owner's
Name of Company Owned Voting Power Book Value Book Value
<S> <C> <C> <C> <C>
NCP Pasco, Inc. (e) 1,000 shs. 100 23,129,427 23,129,427
NCP Ada Power, Inc. (e) 1,000 shs. 100 3,946,664 3,946,664
Ada Cogen, Limited Partnership (e) (l) 1 11,580,231 11,580,231
Syracuse Orange Partners, Limited Partnership (p) 5 27,431,752 375,502
Project Orange Associates, Limited Partnership (q) 89 30,814,828 27,449,763
NCP Brooklyn Power, Inc. (e) 1,000 shs. 100 - -
NCP Commerce Power, Inc. (e) 1,000 shs. 100 1,000 1,000
FPB Cogeneration Partners, Limited
Partnership (e) (m) 30 1,592,344 -
NCP Houston Power, Inc. (e) (Inactive) 100 shs. 100 - -
NCP Perry, Inc. (e) (Inactive) 100 shs. 100 - -
Mid-Georgia Cogeneration,
L.P. (e) (i) 100 - -
NCP New York, Inc. (e) (Inactive) 1,000 shs. 100 - -
EI Selkirk, Inc. (e) (v) 1,000 shs. 100 20,933,948 20,933,948
Selkirk Cogeneration Partners, Limited
Partnership (e) (n) 20 22,314,661 20,909,476
EI Canada Holding, Ltd. (e) 1,000 shs. 100 1,000 1,000
EI Brooklyn Power, Ltd. (e) 1,000 shs. 100 1,000 1,000
EI Services Canada, Ltd. (e) 1,000 shs. 100 1,000 1,000
EI Brooklyn Investment, Ltd. (e) 1,000 shs. 100 1,000 1,000
Brooklyn Energy, Limited
Partnership (e) (Under construction) (o) 75 (1,088,718) 173,689
EI Cayman (e) (Inactive) 99 shs. 99 - -
EI Fuels, Corporation (Inactive) 100 shs. 100 1,000 1,000
EI Power, Inc. (e) (w) 100 shs. 100 - -
Hanover Energy Corporation (e)(x)(Inactive) 100 shs. 100 - -
EI Power (China), Inc. (e) (Inactive) 100 shs. 100 - -
EI Power (China) I, Inc. (e) (Inactive) 100 shs. 100 - -
Ming Jiang Power Partners,
L.P. (e) (Inactive) (g) 50 - -
EI Power (China) II, Inc. (e) (Inactive) 100 shs. 100 - -
Nanjing Power Partners,
L.P. (e) (Inactive) (g) 50 - -
EI Power (China) III, Inc. (e) (Inactive) 100 shs. 100 - -
-2-
<PAGE>
<FN>
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1994 (Continued):
Notes: (a) The business of these electric utility subsidiaries consists predominantly of the generation,
transmission, distribution and sale of electricity.
These subsidiaries collectively own all of the common stock of Saxton Nuclear Experimental Corporation, a
Pennsylvania nonprofit corporation organized for nuclear experimental purposes which is now inactive.
The carrying value of the owners' investment has been written down to a nominal value.
(b) Met-Ed and Penelec are exempt as holding companies under Section 3(a) and Rule 2 of the Public Utility
Holding Company Act of 1935.
(c) Provides corporate services to the electric utility subsidiaries.
(d) Operates, maintains and manages the nuclear units of the electric utility subsidiaries.
(e) These subsidiaries participate in some or all aspects of promoting, developing, financing, constructing,
owning, managing and operating nonutility generating facilities.
(f) A 100% General Partnership interest.
(g) A 1% General Partnership and a 49% Limited Partnership interest.
(h) A 50% General Partnership interest.
(i) A 1% General Partnership and a 99% Limited Partnership interest.
(j) A 1% General Partnership and a 41% Limited Partnership interest.
(k) A 1% General Partnership and a 46% Limited Partnership interest.
(l) A 1% General Partnership interest.
(m) A 30% General Partnership interest.
(n) A 13.55% preferred equity interest and a 20% common equity interest.
(o) A 75% General Partnership interest.
(p) A 4.9% Limited Partnership interest.
(q) A 89% Limited Partnership interest.
-3-
<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1994 (Continued):
(r) Met-Ed Preferred Capital, Inc., a Delaware corporation organized on May 6, 1994, is the general partner
of Met-Ed Capital L.P., a finance subsidiary organized for the purpose of issuing monthly income
preferred securities.
(s) Penelec Preferred Capital, Inc., a Delaware corporation organized on May 9, 1994, is the general partner
of Penelec Capital L.P., a finance subsidiary organized for the purpose of issuing monthly income
preferred securities.
(t) In April 1994, General Portfolios Corporation (GPC) merged into its then subsidiary Energy Initiatives,
Inc. (EI).
(u) NCP Energy, Inc., a California corporation organized on November 21, 1989, was acquired by Energy
Initiatives, Inc. on June 13, 1994. NCP Energy, Inc. operates and has an ownership interest in
cogeneration facilities in Florida, New York, Michigan and California.
(v) EI Selkirk, Inc., a Delaware corporation organized on October 31, 1994, has an ownership interest in a
cogeneration facility in New York.
(w) EI Power, Inc., a Delaware corporation organized on March 15, 1994, is an exempt wholesale generator
(EWG) owned by GPU and organized to acquire interests in other EWGs, own and/or operate eligible
facilities (as defined in Section 32 of The Public Utility Holding Company Act of 1935) and to engage in
project development activities for eligible facilities.
(x) All of the common stock of Hanover Energy Corporation was transferred from Energy Initiatives, Inc. to EI
Power, Inc. on May 11, 1994.
ITEM 2. ACQUISITIONS OR SALES OF UTILITY ASSETS
None.
</FN>
</TABLE>
-4-
<PAGE>
<TABLE>
Item 3. ISSUE, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM SECURITIES:
<CAPTION>
Principal Amount
Name of Company or Stated Value
Name of Issuer Issuing, Selling, Pledged,
and Pledging, Guaranteeing Issued Guaranteed Date of Commission
Title of Issue or Assuming Securities and Sold or Assumed Transaction Proceeds Authorization
(1) (2) (3) (4) (5) (6) (7)
Jersey Central Power & Light Company:
<S> <C> <C> <C> <C>
Performance Guarantees $ 4,543,500(a) various n/a Rule 45
<FN>
Notes: (a) Represents unused Letters of Credit for Workers Compensation Insurance ($3,095,000) and assurances for
remediation of certain manufactured gas plant sites ($1,400,000), and miscellaneous surety bonds ($48,500).
</TABLE>
-5-
<PAGE>
<TABLE>
Item 3. ISSUE, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM SECURITIES:
<CAPTION>
Principal Amount
Name of Company or Stated Value
Name of Issuer Issuing, Selling, Pledged,
and Pledging, Guaranteeing Issued Guaranteed Date of Commission
Title of Issue or Assuming Securities and Sold or Assumed Transaction Proceeds Authorization
(1) (2) (3) (4) (5) (6) (7)
Metropolitan Edison Company:
<S> <C> <C> <C> <C> <C> <C>
First Mortgage Bonds
designated Secured
Medium-Term Notes:
6.36% Series D, due 2006 Met-Ed $ 17,000,000 2-7-94 $ 16,893,750(a) Rule 52
6.40% Series D, due 2006 Met-Ed 33,000,000 2-7-94 32,793,750(b) Rule 52
Total First Mortgage Bonds
designated Secured
Medium-Term Notes $ 50,000,000 $ 49,687,500
Performance Guarantees Met-Ed $13,054,721(c) various n/a Rule 45
<FN>
Notes: (a) All $17,000,000 p.a., 6.36% Series D, due February 8, 2006 were issued and sold February 7, 1994, at face
value pursuant to Supplemental Indenture dated December 1, 1993, with proceeds of $16,893,750, net of agents'
commissions of $106,250.
(b) All $33,000,000 p.a., 6.40% Series D, due February 9, 2006 were issued and sold February 7, 1994, at face
value pursuant to Supplemental Indenture dated December 1, 1993, with proceeds of $32,793,750, net of agents'
commissions of $206,250.
(c) Represents unused Letters of Credit for Workers Compensation Insurance ($3,003,000), a surety bond related to
an ongoing legal dispute ($6,000,000), a surety bond pursuant to residual waste regulations at the Portland
Generating Station ($1,393,948), a surety bond relating to motor vehicles ($1,000,000), and miscellaneous
letters of credit/surety bonds for various purposes ($1,656,773).
</TABLE>
-6-
<PAGE>
<TABLE>
ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM SECURITIES (Continued):
<CAPTION>
Principal Amount
Name of Company or Stated Value
Name of Issuer Issuing, Selling, Pledged,
and Pledging, Guaranteeing Issued Guaranteed Date of Commission
Title of Issue or Assuming Securities and Sold or Assumed Transaction Proceeds Authorization
(1) (2) (3) (4) (5) (6) (7)
Pennsylvania Electric Company:
<S> <C> <C> <C> <C> <C> <C>
First Mortgage Bonds
designated Secured
Medium-Term Notes:
6.35% Series D, due 2006 Penelec $ 40,000,000 1-25-94 $ 39,750,000 (a) Rule 52
6.55% Series D, due 2009 Penelec 50,000,000 1-25-94 49,650,000 (b) Rule 52
8.38% Series D, due 2024 Penelec 40,000,000 6-1-94 39,700,000 (c) Rule 52
Total $130,000,000 $129,100,000
Performance Guarantees Penelec $12,000,000(d) various n/a Rule 45
<FN>
Notes: (a) All $40,000,000 p.a., 6.35% Series D, due January 26, 2006 were issued and sold January 25, 1994, at face
value pursuant to Supplemental Indenture dated June 1, 1993, with proceeds of $39,750,000, net of agents'
commissions of $250,000.
(b) All $50,000,000 p.a., 6.55% Series D, due January 26, 2009 were issued and sold January 25, 1994, at face
value pursuant to Supplemental Indenture dated June 1, 1993, with proceeds of $49,650,000, net of agents'
commissions of $350,000.
(c) All $40,000,000 p.a., 8.38% Series D, due June 3, 2024 were issued and sold June 1, 1994, at face value
pursuant to Supplemental Indenture dated June 1, 1993, with proceeds of $39,700,000, net of agents'
commissions of $300,000.
(d) Represents unused Letters of Credit for Workers Compensation Insurance ($5,633,000), letters of credit/surety
bonds relating to taxes and other municipal assessments ($5,367,000), and a surety bond relating to motor
vehicles ($1,000,000).
</TABLE>
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<PAGE>
<TABLE>
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES
Name of Company Acquiring Authorization
Name of Issuer or Retiring Securities Consideration Disposition or Exemption
<S> <C> <C> <C> <C>
JCP&L:
Bonds JCP&L $ 61,264,556 Retired Rule 42
Met-Ed:
Bonds Met-Ed $ 26,370,344 Retired Rule 42
Preferred Stock Met-Ed 36,274,000 Retired Rule 42
Total $ 62,644,344
Penelec:
Bonds Penelec $108,937,480 Retired Rule 42
Preferred Stock Penelec 26,167,750 Retired Rule 42
Total $135,105,230
<FN>
NOTE: See pages 9 to 11 for a detailed description of the above transactions.
</TABLE>
-8-
<PAGE>
<TABLE>
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES (continued):
<CAPTION>
Principal
Name of Issuer Name of Company Amount or Stated Value
and Acquiring, Redeeming or Redeemed Date of Commission
Title of Issue Retiring Securities Acquired and Retired Transaction Consideration Authorization
(1) (2) (3) (4) (5) (6) (7)
<S> <C> <C> <C> <C> <C>
Jersey Central Power &
Light Company
First Mortgage Bonds:
8.85% Series, due 1994 JCP&L $ 20,000,000 9-14-94 $ 20,358,917 (a) Rule 42
8.70% Series, due 1994 JCP&L 20,000,000 9-20-94 20,381,833 (b) Rule 42
8.65% Series, due 1994 JCP&L 20,000,000 10-20-94 20,523,806 (c) Rule 42
Total First Mortgage Bonds $ 60,000,000 $ 61,264,556
<FN>
Notes: (a) All $20,000,000 p.a., 8.85% Series, due September 14, 1994 were retired September 14, 1994 pursuant to the
Supplemental Indenture dated July 1, 1989, at a cost of $20,000,000, plus $358,917 accrued interest.
(b) All $20,000,000 p.a., 8.70% Series, due September 20, 1994 were retired September 20, 1994 pursuant to the
Supplemental Indenture dated July 1, 1989, at a cost of $20,000,000, plus $381,833 accrued interest.
(c) All $20,000,000 p.a., 8.65% Series, due October 20, 1994 were retired October 20, 1994 pursuant to the
Supplemental Indenture dated July 1, 1989, at a cost of $20,000,000, plus $523,806 accrued interest.
</TABLE>
-9-
<PAGE>
<TABLE>
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES (Continued):
<CAPTION>
Principal Amount
Name of Issuer Name of Company or Stated Value
and Acquiring, Redeeming or Redeemed Commission
Title of Issue Retiring Securities Acquired and Retired Consideration Authorization
(1) (2) (3) (4) (5) (6)
Metropolitan Edison Company
<S> <C> <C> <C> <C>
First Mortgage Bonds:
7% Series, due 1998 Met-Ed $ 26,000,000 $ 26,370,344 (a) Rule 42
Preferred Stock:
7.68% Series G Met-Ed $ 35,000,000 $ 36,274,000 (b) Rule 42
<FN>
Notes: (a) All $26,000,000 p.a., 7% Series, due September 1, 1998 were retired March 11, 1994, pursuant to the
Supplemental Indenture dated September 1, 1998, at a cost of $26,319,800 (call premium of 1.23%), plus $50,544
accrued interest.
(b) All 7.68% Series G, $35,000,000 stated value $100 per share (350,000 shares), were redeemed October 1, 1994 at
a cost of $36,274,000 (call premium of 3.64%).
</TABLE>
-10-
<PAGE>
<TABLE>
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES (Continued):
<CAPTION>
Principal Amount
Name of Issuer Name of Company or Stated Value
and Acquiring, Redeeming or Redeemed Commission
Title of Issue Retiring Securities Acquired and Retired Consideration Authorization
(1) (2) (3) (4) (5) (6)
Pennsylvania Electric Company
<S> <C> <C> <C> <C>
First Mortgage Bonds:
9.35 % Series, due 1994 Penelec $ 40,000,000 $ 40,311,667 (a) Rule 42
8.50 % Series, due 1994 Penelec 30,000,000 30,000,000 (b) Rule 42
6 5/8% Series, due 1998 Penelec 38,000,000 38,625,813 (c) Rule 42
Total First Mortgage Bonds $108,000,000 $108,937,480
Preferred Stock:
8.36 % Series H Penelec $ 25,000,000 $ 26,167,750 (d) Rule 42
<FN>
Notes: (a) All $40,000,000 p.a., 9.35% Series, due May 31, 1994 were retired May 31, 1994, pursuant to the Supplemental
Indenture dated May 1, 1989, at a cost of $40,000,000, plus $311,667 accrued interest.
(b) All $30,000,000 p.a., 8.50% Series, due November 1, 1994 were retired November 1, 1994, pursuant to the
Supplemental Indenture dated May 1, 1989, at a cost of $30,000,000.
(c) All $38,000,000 p.a., 6 5/8% Series, due August 1, 1998 were retired February 28, 1994, pursuant to the
Supplemental Indenture dated August 1, 1968, at a cost of $38,437,000 (call premium of 1.15%), plus $188,813
accrued interest.
(d) All 8.36% Series H, $25,000,000 stated value $100 per share (250,000 shares), were redeemed September 26, 1994
at a cost of $26,022,500 (call premium of 4.09%), plus $145,250 accrued dividends.
</TABLE>
-11-
<PAGE>
<TABLE>
ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES
<CAPTION>
Equity Securities Nature of Owner's
Name of Issuer Security Owned Shares Owned % of Voting Power Business Book Value
<S> <C> <C> <C> <C> <C>
ACE Limited Stock 510,298 Less than 1% Insurance $2,598,700 (1)
Exel Limited Stock 78,660 Less than 1% Insurance 1,180,000 (1)
Polsky Energy Nonutility
Corporation Stock 869 4.90% Generation 4,767,367
Waterford
Development
Corporation Stock 50 6.25% (2) 5,000
Greater Reading Limited
Development Partnership
Partnership Interest - 5.63% (3) 100,000
<FN>
(1) Excludes an adjustment for unrealized gain on investment (FASB 115) of $9,329,516 for ACE Limited and
$1,927,020 for Exel Limited.
(2) Participation loans to development corporations to assist in the expansion and development of
industrial and commercial activities by providing financial assistance to small, emerging businesses.
(3) A nonprofit business that provides loans to development corporations to assist in the development of
commercial real estate and multi-unit homes in the downtown Reading, Pennsylvania area.
</TABLE>
-12-
<PAGE>
<TABLE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. AS OF DECEMBER 31, 1994
<CAPTION>
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
EI
GPU EI POWER (A) GPUSC GPUN JCP&L (J)
<S> <C> <C> <C> <C> <C> <C>
J. R. Leva (C) CH-P-D CH-D CH-D CH-P-D CB-D CB-D
L. J. Appell, Jr.
Susquehanna Pfaltzgraff, York, PA D
D. J. Bainton
Continental Can Co., Inc., Syosset, NY D
T. H. Black
Ingersoll-Rand Co., Woodcliff Lake, NJ D
T. B. Hagen
Dept. of Commerce, Harrisburg, PA D
H. F. Henderson, Jr.
H. F. Henderson Ind., W. Caldwell, NJ D
J. M. Pietruski
Texas Biotechnology Corp., Houston, TX D
C. A. Rein
Metropolitan Life Insurance Co., New York, NY D
P. R. Roedel
Carpenter Technology Corp., Reading, PA D
C. A. H. Trost
10405 Windsor View Dr., Potomac, MD D D
Dr. P. K. Woolf
506 Quaker Rd., Princeton, NJ D
S. K. Cepeda (C) AS AS
F. A. Donofrio (C) VP-C SVP-D
J. G. Graham (C) SVP D D EVP-D VP VP-D
T. G. Howson (C) VP-T VP-T VP-T VP-T
I. H. Jolles (C) SVP D D EVP-D
-13A-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. AS OF DECEMBER 31, 1994
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
YORK
HAVEN NINEVEH WAVERLY
POWER WATER ELEC.
MET-ED PENELEC (B) CO. CO. CO. SAXTON
<S> <C> <C> <C> <C> <C> <C> <C>
J. R. Leva (C) CB-D CB-D
L. J. Appell, Jr.
Susquehanna Pfaltzgraff, York, PA
D. J. Bainton
Continental Can Co., Inc., Syosset, NY
T. H. Black
Ingersoll-Rand Co., Woodcliff Lake, NJ
T. B. Hagen
Dept. of Commerce, Harrisburg, PA
H. F. Henderson, Jr.
H. F. Henderson Ind., W. Caldwell, NJ
J. M. Pietruski
Texas Biotechnology Corp., Houston, TX
C. A. Rein
Metropolitan Life Insurance Co., New York, NY
P. R. Roedel
Carpenter Technology Corp., Reading, PA
C. A. H. Trost
10405 Windsor View Dr., Potomac, MD
Dr. P. K. Woolf
506 Quaker Rd., Princeton, NJ
S. K. Cepeda (C)
F. A. Donofrio (C)
J. G. Graham (C) VP-D VP-D
T. G. Howson (C) VP-T VP-T VP-T T T T
I. H. Jolles (C)
-13B-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1994
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
EI
GPU EI POWER (A) GPUSC GPUN JCP&L (J)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
M. A. Nalewako (C) S S AS AS AS
S. H. Somich (C) AT AT AT AT
R. C. Arnold (C) EVP-D D
R. C. Black (C) VP
C. Brooks (C) VP
P. R. Chatman (C) AC AC
F. Dominguez (C) VP
C. A. Mansfield
GPUSC, Washington, DC VP
C. A. Mascari (C) VP
G. S. Metsky (C) AC
P. C. Mezey (C) D D SVP
C. Mignon (D) VP
R. J. Postweiler (C) VP
S. C. Thomas (D) VP
S. A. Weiner (C) VP
D. C. Brauer (E) VP-T VP-T VP-T
M. Filewicz (E) AS AS AS
-14A-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1994
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
YORK
HAVEN NINEVEH WAVERLY
POWER WATER ELEC.
MET-ED PENELEC (B) CO. CO. CO. SAXTON
<S> <C> <C> <C> <C> <C> <C> <C>
M. A. Nalewako (C) AS AS AS
S. H. Somich (C) AT AT
R. C. Arnold (C) D D
R. C. Black (C)
C. Brooks (C)
P. R. Chatman (C) AC AC
F. Dominguez (C)
C. A. Mansfield
GPUSC, Washington, DC
C. A. Mascari (C)
G. S. Metsky (C)
P. C. Mezey (C)
C. Mignon (D)
R. J. Postweiler (C)
S. C. Thomas (D)
S. A. Weiner (C)
D. C. Brauer (E)
M. Filewicz (E)
-14B-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1994
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
EI
GPU EI POWER (A) GPUSC GPUN JCP&L (J)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
R. J. Guy (E) VP VP VP
B. L. Levy (E) P-D P-D P-D
J. A. McTear (E)(I) VP
K. Tomblin (E) S S S
P. R. Clark (E) D P-D
L. L. Humphreys
217 Lasiandra Court, Richland, WA D
W. A. Wilson
ICC Technologies, Philadelphia, PA D
J. J. Barton
O.C. NS, Forked River, NJ VP
T. G. Broughton
TMI-1, Middletown, PA VP
C. Clawson (E) VP
D. Furlong (E) AC
R. W. Keaton (E) VP
R. L. Long (E) VP-D
P. E. Maricondo (E) VP-C
R. S. Renzi (E) AS
M. B. Roche (E) VP
J. F. Wilson (E) S
-15A-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1994
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
YORK
HAVEN NINEVEH WAVERLY
POWER WATER ELEC.
MET-ED PENELEC (B) CO. CO. CO. SAXTON
<S> <C> <C> <C> <C> <C> <C> <C>
R. J. Guy (E)
B. L. Levy (E)
J. A. McTear (E)(I)
K. Tomblin (E)
P. R. Clark (E) D
L. L. Humphreys
217 Lasiandra Court, Richland, WA
W. A. Wilson
ICC Technologies, Philadelphia, PA
J. J. Barton
O.C. NS, Forked River, NJ
T. G. Broughton
TMI-1, Middletown, PA
C. Clawson (E)
D. Furlong (E)
R. W. Keaton (E)
R. L. Long (E)
P. E. Maricondo (E)
R. S. Renzi (E)
M. B. Roche (E)
J. F. Wilson (E) S
-15B-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1994
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
EI
GPU EI POWER (A) GPUSC GPUN JCP&L (J)
<S> <C> <C> <C> <C> <C> <C> <C>
D. Baldassari (F) D D P-D P-D
G. E. Persson
Business Dynamics Assoc., Red Bank NJ D
S. C. Van Ness
Pico, Mack, Kennedy, Jaffe,
Perrella & Yoskin, Trenton, NJ D
S. B. Wiley
Wiley, Malehorn & Sirota, Morristown, NJ D
R. S. Cohen (F) S S
C. R. Fruehling (F) VP
C. A. Marks (F) AS AS
E. J. McCarthy (F) VP
M. P. Morrell (F) VP-D
D. W. Myers (F) VP-C-D
J. J. Westervelt (F) VP
F. D. Hafer (G) D D
W. A. Boquist (G)
D. L. O'Brien (G)
D. M. O'Brien-Groff (G)
R. J. Toole (F)(G) VP
R. S. Zechman (G)
-16A-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1994
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
YORK
HAVEN NINEVEH WAVERLY
POWER WATER ELEC.
MET-ED PENELEC (B) CO. CO. CO. SAXTON
<S> <C> <C> <C> <C> <C> <C> <C>
D. Baldassari (F) CB-D
G. E. Persson
Business Dynamics Assoc., Red Bank NJ
S. C. Van Ness
Pico, Mack, Kennedy, Jaffe,
Perrella & Yoskin, Trenton, NJ
S. B. Wiley
Wiley, Malehorn & Sirota, Morristown, NJ
R. S. Cohen (F)
C. R. Fruehling (F)
C. A. Marks (F)
E. J. McCarthy (F)
M. P. Morrell (F)
D. W. Myers (F)
J. J. Westervelt (F)
F. D. Hafer (G) P-D P-D P-D P-D D
W. A. Boquist (G) VP VP S-D
D. L. O'Brien (G) C C C C
D. M. O'Brien-Groff (G) AS AS AS
R. J. Toole (F)(G) VP-D P-D
R. S. Zechman (G) VP VP
-16B-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1994
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
EI
GPU EI POWER (A) GPUSC GPUN JCP&L (J)
<S> <C> <C> <C> <C> <C> <C> <C>
J. B. DeAngelo (G)
L. A. Lenhart (D)
V. D. Schimoler, Jr. (G)
D. Weaver (G)
R. L. Wise (H) D D D-P D
J. F. Furst (G)
J. G. Herbein (H)
R. J. Vodzack (H)
W. C. Matthews (G)
G. R. Repko (G)
C. B. Snyder (G)
J. L. Greco (G)
B. A. Good
TMI-1, Middletown, PA
J. E. Hildebrand
O.C. NS, Forked River, NJ
G. S. Steffy (F)
-17A-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1994
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
YORK
HAVEN NINEVEH WAVERLY
POWER WATER ELEC.
MET-ED PENELEC (B) CO. CO. CO. SAXTON
<S> <C> <C> <C> <C> <C> <C> <C>
J. B. DeAngelo (G) D
L. A. Lenhart (D) T
V. D. Schimoler, Jr. (G) C
D. Weaver (G) VP
R. L. Wise (H) P-D
J. F. Furst (G) VP VP D
J. G. Herbein (H) VP-D VP-D D
R. J. Vodzack (H) AC
W. C. Matthews (G) S S S S S
G. R. Repko (G) VP VP-D VP-D
C. B. Snyder (G) VP VP
J. L. Greco (G) D
B. A. Good
TMI-1, Middletown, PA VP
J. E. Hildebrand
O.C. NS, Forked River, NJ P-D
G. S. Steffy (F) C
-17B-
<PAGE>
<FN>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1994
(A) Includes the following companies: Elmwood Energy Corporation, Camchino Energy Corporation, OLS Acquisition
Corporation, OLS Energy - Berkeley, OLS Energy - Chino, OLS Energy - Camarillo, Armstrong Energy Corporation,
Geddes Cogeneration Corporation, NCP Energy, Inc., NCP Lake Power, Inc., NCP Gem, Inc., Umatilla Groves, Inc., NCP
Dade Power, Inc., NCP Pasco, Inc., NCP Ada Power, Inc., NCP Brooklyn Power, Inc., NCP Commerce Power, Inc., NCP
Houston Power, Inc., NCP Perry, Inc., NCP New York, Inc., EI Selkirk, Inc., EI Canada Holding, Ltd., EI Brooklyn
Power, Ltd., EI Services Canada, Ltd., EI Brooklyn Investment, Ltd., EI Cayman, Inc., EI Fuels Corporation, EI
Power, Inc., Hanover Energy Corporation, EI Power China, Inc., EI Power China I, Inc., EI Power China II, Inc.,
and EI Power China III, Inc.
(B) Includes the following companies: Met-Ed Preferred Capital, Inc., Met-Ed Capital, L.P., Penelec Preferred Capital,
Inc., Penelec Capital, L.P.
(C) Address is 100 Interpace Parkway, Parsippany, NJ.
(D) Address is Rt. 183 & Van Reed Road, Reading, PA.
(E) Address is One Upper Pond Road, Parsippany, NJ.
(F) Address is 300 Madison Avenue, Morristown, NJ.
(G) Address is 2800 Pottsville Pike, Muhlenberg Township, PA.
(H) Address is 1001 Broad Street, Johnstown, PA.
(I) J. A. McTear elected Vice President of EI 3/06/95.
(J) Includes the following companies: JCP&L Preferred Capital, Inc., JCP&L Capital, L.P.
</FN>
</TABLE>
-18-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1994
KEY
CH - Chairman
CB - Chairman of the Board
D - Director
P - President
EVP - Executive Vice President
SVP - Senior Vice President
VP - Vice President
C - Comptroller
T - Treasurer
S - Secretary
AS - Assistant Secretary
AT - Assistant Treasurer
AC - Assistant Comptroller
-19-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
Part II. AS OF DECEMBER 31, 1994
NAME AND LOCATION POSITION HELD APPLICABLE
NAME OF OFFICER OF IN FINANCIAL EXEMPTION
OR DIRECTOR FINANCIAL INSTITUTION INSTITUTION RULE
D. Baldassari First Morris Bank Director 70(f)
Morristown, NJ
F. D. Hafer Meridian Bancorp, Inc. Director 70(f)
and Meridian Bank
Reading, PA
J. R. Leva Chemical Bank of NJ Director 70(f)
Morristown, NJ
" " Princeton Bank & Trust Co. Director 70(f)
Morristown, NJ
C. A. Rein Bank of New York Director 70(a)
New York, NY
P. R. Roedel Meridian Bancorp, Inc. Director 70(a)
and Meridian Bank
Reading, PA
S. B. Wiley First Morris Bank Director
Morristown, NJ (Chairman) 70(c)
R. L. Wise U.S. Bancorp, Inc. Director 70(f)
Johnstown, PA
" " U.S. Bancorp Director 70(f)
Trust Company
Johnstown, PA
" " U.S. National Bank Director 70(f)
of Johnstown
Johnstown, PA
-20-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
Part III.
Information concerning the compensation and other related information for
the Officers and Directors of GPU, JCP&L, Met-Ed and Penelec is filed as
Exhibit F-1 to this Form U5S.
-21-
<PAGE>
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS
Name of Company Account
Name of Beneficiary Purpose Charged Amount
General Public Utilities Corporation:
Edison Electric Institute - Dues (1) (4) $648
Jersey Central Power & Light Company:
Salary and Expenses - Public
Affairs Activities (2) (3) $752,991
American Nuclear Energy Council (1) (3) 35,176
Clean Coal Technology Coalition (1) (4) 850
Edison Electric Institute - Dues (1) (3) & (4) 47,449
Edison Electric Institute -
Nevada Initiative (1) (3) 32,208
Edison Electric Institute - Media
Communication Fund (1) (4) 102,396
Utility Solid Waste Activities (1) (4) 11,339
Utility Water Act Group (1) (4) 11,343
O.C.E.A.N., Inc. (1) (3) 51,000
Norwescap, Inc. (1) (3) 34,000
3 Beneficiaries (1) (3) & (4) 3,715
Metropolitan Edison Company:
Salary & Expenses - Public
Affairs Activities (2) (3) $373,116
American Nuclear Energy Council (1) (3) 17,221
Clean Coal Technology Coalition (1) (4) 2,740
Edison Electric Institute - Dues (1) (3) & (4) 31,093
Edison Electric Institute -
Nevada Initiative (1) (3) 15,468
Edison Electric Institute - Media
Communication Fund (1) (4) 68,716
Utility Solid Waste Activities (1) (4) 11,339
Utility Water Act Group (1) (4) 5,446
Pennsylvania Electric Assoc. (PEA) (2) (3) 6,224
Project Good Neighbor (1) (3) 90,095
Emergency Electric Funds (1) (3) 75,000
Tom Ridge Inaugural Committee (1) (3) 5,000
3 Beneficiaries (1) (3) & (4) 3,764
Pennsylvania Electric Company:
Salary & Expenses - Public Affairs
Activities (2) (3) $567,727
American Nuclear Energy Council (1) (3) 8,672
Clean Coal Technology Coalition (1) (4) 6,410
Edison Electric Institute - Dues (1) (3) & (4) 34,462
Edison Electric Institute -
Nevada Initiative (1) (3) 19,002
Edison Electric Institute - Media
Communication Fund (1) (4) 76,396
Utility Solid Waste Activities (1) (4) 11,339
Utility Water Act Group (1) (4) 6,705
Pennsylvania Electric Assoc. (PEA) (2) (3) 7,868
Project Good Neighbor (1) (3) 143,263
Tom Ridge Inaugural Committee (1) (3) 5,000
2 Beneficiaries (1) (4) & (5) 3,175
-22-
<PAGE>
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS (Continued):
Notes: (1) Contribution or membership fee.
(2) Public relations services.
(3) Income deduction.
(4) Operating expense.
(5) Other balance sheet accounts
-23-
<PAGE>
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS
Part I.
Serving Receiving
Transaction Company Company Compensation
(In Thousands)
Charges incurred in
connection with the
Allenhurst Remittance Center JCP&L Met-Ed $ 294
" Penelec 339
Interchange of materials JCP&L Met-Ed 171
" Penelec 24
Engineering assistance provided
to Portland Generating Station JCP&L Met-Ed 193
Costs associated with the Cataloging
Department for services provided JCP&L Met-Ed 33
" Penelec 59
Costs related to the Insurance &
Claims Dept. for services provided JCP&L Met-Ed 40
" Penelec 36
Other services including training,
customer attitude survey,
vehicle repair, etc. JCP&L GPUN 23
" GPUSC 61
" Met-Ed 44
" Penelec 41
Total JCP&L $1,358
-24-
<PAGE>
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS: (Continued)
Part I.
Serving Receiving
Transaction Company Company Compensation
(In Thousands)
Cost incurred by Reprographics
Department for services provided Met-Ed GPUN $ 144
" GPUSC 493
" JCP&L 353
" Penelec 329
Expenses incurred for storm
restoration and emergencies Met-Ed JCP&L 272
Costs incurred for the operation
and maintenance of JCP&L owned
capacitors at TMI & Hosensack Met-Ed JCP&L 99
Costs associated with the
operation and maintenance of the
Mobil Generator Transformer Met-Ed JCP&L 41
" Penelec 47
Cost incurred by Legal Dept.
for Services Provided Met-Ed GPUN 5
" GPUSC 4
" JCP&L 21
" Penelec 25
Cost incurred for marketing
operations benchmarking program Met-Ed Penelec 32
Expenses incurred for Werner
and Sayreville Stations Met-Ed JCP&L 28
Temporary reassignment of Michael
Springer to GPUSC Met-Ed GPUSC 28
Misc. services provided GPUN/TMI
(includes remote reporting) Met-Ed GPUN 216
Other Met-Ed GPUSC 61
" JCP&L 29
" Penelec 49
Total Met-Ed $2,276
-25-
<PAGE>
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS: (Continued)
Part I. (Continued)
Serving Receiving
Transaction Company Company Compensation
(In Thousands)
Costs associated with GPU System
consolidated Accounts Payable
Department Penelec GPUN $112
" GPUSC 36
" Met-Ed 76
Costs associated with GPU System
consolidated Fuels Department Penelec Met-Ed 73
" JCP&L 8
Costs associated with providing
specific technical and general
engineering services Penelec Met-Ed 164
" JCP&L 130
R&D Costs Penelec Met-Ed 57
" JCP&L 61
Project Maintenance Fees Penelec Met-ED 27
" JCP&L 27
Costs associated with "Forum
of Ideas" seminar Penelec Met-Ed 14
" JCP&L 21
Other Penelec GPUN 14
" GPUSC 47
" Met-Ed 62
" JCP&L 12
Total Penelec $941
A mutual assistance agreement, approved by the Pennsylvania Public Utility
Commission by order dated December 15, 1993, between and among Met-Ed,
Penelec, JCP&L, GPUN and GPUSC covering various affiliate transactions in
goods and services remains in effect at year end.
Part II.
None.
Part III.
None.
-26-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Canada Holding, Ltd., EI Brooklyn Power, Ltd., EI Brooklyn Investment,
Ltd., EI Services Canada, Ltd. and Brooklyn Energy, Limited Partnership
Part I.
(a) At December 31, 1994, Energy Initiatives, Inc. (EI), through its wholly-
owned subsidiaries EI Canada Holding, Ltd., EI Brooklyn Power, Ltd. and
EI Brooklyn Investment, Ltd., owned a 74% general partnership interest
and a 1% limited partnership interest in Brooklyn Energy, Limited
Partnership (BELP).
BELP, a 24 megawatt wood and oil burning cogeneration facility, which is
located in Brooklyn, Nova Scotia, Canada is under construction and is
expected to commence commercial operation in 1996.
(b) General Public Utilities Corporation (GPU), indirectly through its
wholly-owned subsidiary EI, capitalized $173,689 in organizational costs
related to its investment in BELP.
GPU has provided a guaranty of up to US $9.7 million of BELP's repayment
obligations with respect to a C $12.9 million letter of credit issued to
BELP's project lenders with any payments by GPU constituting a Canadian
dollar equivalent equity contribution of EI to BELP.
(c) Ratio of debt to common equity - EI has not made equity contributions to
BELP as of December 31, 1994. EI will contribute its C $12.9 million to
partnership equity upon commercial operation of the BELP facility.
Accumulated earnings/(losses) - BELP $(1,340,546).
(d) EI received a $97,000 one-time guaranty fee as consideration for its
arranging of the $9.7 million GPU guaranty of BELP's letter of credit.
EI Services Canada, Ltd. (ESC), a wholly-owned subsidiary of EI, is
currently negotiating an operating and maintenance (O&M) contract with
BELP. ESC will receive fees for the O&M services rendered.
Part II.
An organizational chart showing the relationship of Energy Initiatives, Inc.
to BELP is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
BELP for the year ended December 31, 1994 are provided in Exhibit I.
Part III.
None.
-27-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Power, Inc.
Part I.
(a) At December 31, 1994, General Public Utilities Corporation (GPU) owned
100% of EI Power, Inc., a Delaware corporation established to make
investments in EWGs, own and/or operate eligible facilities and to engage
in project development activities for eligible facilities.
(b) None.
(c) Ratio of debt to common equity - GPU has not made equity contributions to
EI Power, Inc. as of December 31, 1994.
Accumulated earnings/(losses) - None.
(d) None.
Part II.
An organizational chart showing the relationship of EI Power, Inc. to other
EWGs in which it has an interest is provided in Exhibit H-2.
Exhibit I - Not applicable.
Part III.
None.
-28-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
Hanover Energy Corporation
Part I.
(a) At December 31, 1994, EI Power, Inc. owned 100% of Hanover Energy
Corporation, a New Jersey corporation established to make future
investments in EWGs.
(b) None.
(c) Ratio of debt to common equity - EI Power, Inc. has not made equity
contributions to Hanover Energy Corporation as of December 31, 1994.
Accumulated earnings/(losses) - None.
(d) None.
Part II.
An organizational chart showing the relationship of EI Power, Inc. to Hanover
Energy Corporation is provided in Exhibit H-2.
Exhibit I - Not applicable.
Part III.
None.
-29-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Power (China), Inc.
Part I.
(a) At December 31, 1994, EI Power, Inc. owned 100% of EI Power (China),
Inc., a Delaware corporation established to make future investments in
EWGs in China.
(b) None.
(c) Ratio of debt to common equity - EI Power, Inc. has not made equity
contributions to EI Power (China), Inc. as of December 31, 1994.
Accumulated earnings/(losses) - None.
(d) None.
Part II.
An organizational chart showing the relationship of EI Power, Inc. to EI Power
(China), Inc. is provided in Exhibit H-2.
Exhibit I - Not applicable.
Part III.
None.
-30-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Power (China) I, Inc. and Ming Jiang Power Partners, L.P.
Part I.
(a) At December 31, 1994, EI Power, Inc., through its wholly-owned subsidiary
EI Power (China) I, Inc., owned a 49% limited partnership interest and a
1% general partnership interest in Ming Jiang Power Partners, L.P.
Ming Jiang Power Partners, L.P. is a Delaware limited partnership
established to make future investments in EWGs in China.
(b) None.
(c) Ratio of debt to common equity - EI Power, Inc. has not made equity
contributions to EI Power (China) I, Inc. or Ming Jiang Power Partners,
L.P. as of December 31, 1994.
Accumulated earnings/(losses) - None.
(d) None.
Part II.
An organizational chart showing the relationship of EI Power, Inc. to Ming
Jiang Power Partners, L.P. is provided in Exhibit H-2.
Exhibit I - Not applicable.
Part III.
None.
-31-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Power (China) II, Inc. and Nanjing Power Partners, L.P.
Part I.
(a) At December 31, 1994, EI Power, Inc., through its wholly-owned subsidiary
EI Power (China) II, Inc., owned a 49% limited partnership interest and a
1% general partnership interest in Nanjing Power Partners, L.P.
Nanjing Power Partners, L.P. is a Delaware limited partnership
established to make future investments in EWGs in China.
(b) None.
(c) Ratio of debt to common equity - EI Power, Inc. has not made equity
contributions to EI Power (China) II, Inc. or Nanjing Power Partners,
L.P. as of December 31, 1994.
Accumulated earnings/(losses) - None.
(d) None.
Part II.
An organizational chart showing the relationship of EI Power, Inc. to Nanjing
Power Partners, L.P. is provided in Exhibit H-2.
Exhibit I - Not applicable.
Part III.
None.
-32-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Power (China) III, Inc.
Part I.
(a) At December 31, 1994, EI Power, Inc. owned 100% of EI Power (China) III,
Inc., a Delaware corporation established to make future investments in
EWGs in China.
(b) None.
(c) Ratio of debt to common equity - EI Power, Inc. has not made equity
contributions to EI Power (China) III, Inc. as of December 31, 1994.
Accumulated earnings/(losses) - None.
(d) None.
Part II.
An organizational chart showing the relationship of EI Power, Inc. to EI Power
(China) III, Inc. is provided in Exhibit H-2.
Exhibit I - Not applicable.
Part III.
None.
-33-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS
Page
Consolidating Financial Statements, Schedules and Notes
- Report of Independent Accountants. 35-36
- Consolidating Financial Statements of General Public 37-41
Utilities Corporation for 1994.
- Notes 1 through 11 to Consolidated Financial Statements
incorporated herein by reference, in Exhibit A (page 42),
in the General Public Utilities Corporation Annual
Report on Form 10-K for 1994 (Item 8).
- Notes 1 through 9 to Financial Statements
incorporated herein by reference, in Exhibit A (page 42),
in the Jersey Central Power & Light Company Annual
Report on Form 10-K for 1994 (Item 8).
- Notes 1 through 9 to Consolidated Financial Statements
incorporated herein by reference, in Exhibit A (page 42),
in the Metropolitan Edison Company Annual Report
on Form 10-K for 1994 (Item 8).
- Notes 1 through 9 to Consolidated Financial Statements
incorporated herein by reference, in Exhibit A (page 42),
in the Pennsylvania Electric Company Annual
Report on Form 10-K for 1994 (Item 8).
Exhibits (See Page 58)
- Consolidating Financial Statements of Energy Initiatives, Inc. for 1994.*
- Consolidating Financial Statements of OLS Power, Limited Partnership for
1994.*
- Consolidating Financial Statements of NCP Energy, Inc for 1994.*
- Consolidating Financial Statements of Metropolitan Edison Company for
1994.
- Consolidating Financial Statements of Pennsylvania Electric Company for
1994.
* Financial Statements for the projects are included in the 1994 Energy
Initiatives, Inc. Annual Report to the SEC on Form U-13-60.
-34-
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors
General Public Utilities Corporation
We have audited the consolidated balance sheet of General Public Utilities
Corporation and Subsidiary Companies as of December 31, 1994 and the related
consolidated statements of income, retained earnings, and cash flows for the
year then ended. Such consolidated financial statements are included in the
consolidating financial statements listed in Item 10 of this Form U5S. These
financial statements are the responsibility of the Corporation's management.
Our responsibility is to express an opinion on these financial statements
based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of General Public
Utilities Corporation and Subsidiary Companies as of December 31, 1994 and the
consolidated results of their operations and their cash flows for the year
then ended in conformity with generally accepted accounting principles.
As more fully discussed in Note 1 to the consolidated financial statements,
the Corporation is unable to determine the ultimate consequences of certain
contingencies which have resulted from the accident at Unit 2 of the Three
Mile Island Nuclear Generating Station ("TMI-2"). The matters which remain
uncertain are (a) the extent to which the retirement costs of TMI-2 could
exceed amounts currently recognized for ratemaking purposes or otherwise
accrued, and (b) the excess, if any, of amounts which might be paid in
connection with claims for damages resulting from the accident over available
insurance proceeds.
-35-
<PAGE>
Our audit was conducted for the purpose of forming an opinion on the
consolidated financial statements taken as a whole. The supplementary
consolidating information and the financial statement exhibits of the
individual companies listed in Item 10 of this U5S are presented for purposes
of additional analysis rather than to present the financial position, results
of operations, and cash flows of the individual companies, and are not a
required part of the consolidated financial statements. The supplementary
consolidating information and the financial statement exhibits have been
subjected to the auditing procedures applied in the audit of the consolidated
financial statements and, in our opinion, are fairly stated, in all material
respects, in relation to the consolidated financial statements taken as a
whole.
COOPERS & LYBRAND L.L.P.
New York, New York
February 1, 1995
-36-
<PAGE>
<TABLE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
<CAPTION>
The Corp. and General
Subsidiary Eliminations Public Energy GPU
Companies and Utilities Initiatives Service
ASSETS Consolidated Adjustments Corporation Incorporated Corporation
<S> <C> <C> <C> <C> <C>
Utility Plant:
In service, at original cost $ 8,879,630 $ 72,664
Less, accumulated depreciation 3,148,668 21,019
Net utility plant in service 5,730,962 51,645
Construction work in progress 340,248
Other, net 195,388 7,047
Net utility plant 6,266,598 58,692
Other Property and Investments:
Common stock of subsidiaries - $ 2,737,743(A) $ 2,737,743
Nuclear decommissioning trusts 260,482
Nonregulated investments, net 115,538 $ 115,538
Nuclear fuel disposal fund 82,920
Other, net 33,553 4,058 8,157
Total other property and investments 492,493 2,737,743 2,741,801 115,538 8,157
Current Assets:
Cash and temporary cash investments 26,731 14,377 772 46
Special deposits 10,226 85
Accounts receivable:
Customers, net 248,728
Other 56,903 62,298(B) 760 2,434 9,305
Unbilled revenues 113,581
Materials and supplies, at average cost or less:
Construction and maintenance 184,644
Fuel 55,498
Deferred energy costs 8,728 2,098(C)
Deferred income taxes 18,399 424(D) 492
Prepayments 62,164 5 3,082 596
Total current assets 785,602 64,820 15,142 6,780 10,032
Deferred Debits and Other Assets:
Three Mile Island Unit 2 deferred costs 157,042
Unamortized property losses 108,699
Deferred income taxes 428,897 2,006 14,637
Income taxes recoverable through future
<PAGE>
rates 561,498
Other 408,948 5,376 1,782
Total deferred debits and other assets 1,665,084 7,382 16,419
Total Assets $ 9,209,777 $ 2,802,563 $ 2,756,943 $ 129,700 $ 93,300
<FN>
The notes to the consolidated financial statements of GPU, Met-Ed and Penelec and the notes to the financial statements
of JCP&L, which are incorporated by reference from the respective annual reports on Form 10-K for the year ended
December 31, 1994, are an integral part of the consolidating financial statements.
</FN>
</TABLE>
-37A-
<PAGE>
<TABLE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
<CAPTION>
GPU Jersey Central Metropolitan Pennsylvania
Nuclear Power & Light Edison Electric
ASSETS Corporation Company Company Company
<S> <C> <C> <C> <C> <C>
Utility Plant:
In service, at original cost $ 37 $ 4,119,617 $ 2,137,996 $ 2,549,316
Less, accumulated depreciation 1,499,405 700,746 927,498
Net utility plant in service 37 2,620,212 1,437,250 1,621,818
Construction work in progress 136,884 105,035 98,329
Other, net 123,349 37,275 27,717
Net utility plant 37 2,880,445 1,579,560 1,747,864
Other Property and Investments:
Common stock of subsidiaries
Nuclear decommissioning trusts 165,511 65,100 29,871
Nonregulated investments, net
Nuclear fuel disposal fund 82,920
Other, net 269 6,906 9,567 4,596
Total other property and investments 269 255,337 74,667 34,467
Current Assets:
Cash and temporary cash investments 58 1,041 9,246 1,191
Special deposits 395 4,608 1,896 3,242
Accounts receivable:
Customers, net 126,760 53,421 68,547
Other 51,133 16,936 16,736 21,897
Unbilled revenues 59,288 25,112 29,181
Materials and supplies, at average cost or less:
Construction and maintenance 95,937 39,365 49,342
Fuel 18,563 16,843 20,092
Deferred energy costs 10,826
Deferred income taxes 10,454 4,720 3,157
Prepayments 353 45,880 7,522 4,726
Total current assets 51,939 379,467 174,861 212,201
Deferred Debits and Other Assets:
Three Mile Island Unit 2 deferred costs 138,294 5,534 13,214
Unamortized property losses 104,451 2,546 1,702
Deferred income taxes 25,187 122,944 149,892 114,231
Income taxes recoverable through future
<PAGE>
rates 132,642 201,679 227,177
Other 844 323,208 47,540 30,198
Total deferred debits and other assets 26,031 821,539 407,191 386,522
Total Assets $ 78,276 $ 4,336,788 $ 2,236,279 $ 2,381,054
<FN>
The notes to the consolidated financial statements of GPU, Met-Ed and Penelec and the notes to the financial
statements of JCP&L, which are incorporated by reference from the respective annual reports on Form 10-K for
the year ended December 31, 1994, are an integral part of the consolidating financial statements.
</FN>
</TABLE>
-37B-
<PAGE>
<TABLE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
<CAPTION>
The Corp. and General
Subsidiary Eliminations Public Energy GPU
Companies and Utilities Initiatives Service
LIABILITIES AND CAPITAL Consolidated Adjustments Corporation Incorporated Corporation
<S> <C> <C> <C> <C> <C>
Capitalization:
Common stock $ 314,458 $ 325,998(A) $ 314,458 $ 100 $ 50
Capital surplus 663,418 1,172,781(A,E) 670,817 126,380
Retained earnings 1,775,759 1,238,918(A) 1,769,909 (8,301) (699)
Total 2,753,635 2,737,697 2,755,184 118,179 (649)
Less:reacquired common stock, at cost 181,051 181,051
Total common stockholders' equity 2,572,584 2,737,697 2,574,133 118,179 (649)
Cumulative preferred stock:
With mandatory redemption 150,000
Without mandatory redemption 98,116
Preferred securities of subsidiaries 205,000
Long-term debt 2,345,417 30,700
Total capitalization 5,371,117 2,737,697 2,574,133 118,179 30,051
Current Liabilities:
Debt due within one year 91,165 3,200
Notes payable 347,408 126,000
Obligations under capital leases 157,168 3,342
Accounts payable 317,259 62,298(B) 262 2,823 6,950
Taxes accrued 80,027 5 2,074
Deferred energy credits - 2,098(C)
Interest accrued 66,628 810 689
Other 213,041 424(D) 54,701 504 17,259
Total current liabilities 1,272,696 64,820 181,778 3,327 33,514
Deferred Credits and Other Liabilities:
Deferred income taxes 1,438,743 5,842 7,595
Unamortized investment tax credits 156,262
Three Mile Island Unit 2 future costs 341,139
Other 629,820 46(E) 1,032 2,352 22,140
Total deferred credits and other
liabilities 2,565,964 46 1,032 8,194 29,735
Total Liabilities and Capital $ 9,209,777 $ 2,802,563 $ 2,756,943 $ 129,700 $ 93,300
<FN>
The notes to the consolidated financial statements of GPU, Met-Ed and Penelec and the notes to the financial
<PAGE>
statements of JCP&L, which are incorporated by reference from the respective annual reports on Form 10-K for
the year ended December 31, 1994, are an integral part of the consolidating financial statements.
</FN>
</TABLE>
-38A-
<PAGE>
<TABLE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
<CAPTION>
GPU Jersey Central Metropolitan Pennsylvania
Nuclear Power & Light Edison Electric
LIABILITIES AND CAPITAL Corporation Company Company Company
<S> <C> <C> <C> <C>
Capitalization:
Common stock $ 50 $ 153,713 $ 66,273 $ 105,812
Capital surplus 435,715 341,616 261,671
Retained earnings 772,240 190,742 290,786
Total 50 1,361,668 598,631 658,269
Less:reacquired common stock, at cost
Total common stockholders' equity 50 1,361,668 598,631 658,269
Cumulative preferred stock:
With mandatory redemption 150,000
Without mandatory redemption 37,741 23,598 36,777
Preferred securities of subsidiaries 100,000 105,000
Long-term debt 1,168,444 529,783 616,490
Total capitalization 50 2,717,853 1,252,012 1,416,536
Current Liabilities:
Debt due within one year 47,439 40,517 9
Notes payable 110,356 111,052
Obligations under capital leases 102,059 33,810 17,957
Accounts payable 32,928 152,652 110,632 73,310
Taxes accrued 1,605 22,561 40,435 13,347
Deferred energy credits 148 1,950
Interest accrued 2 29,765 19,006 16,356
Other 18,891 75,159 21,636 25,315
Total current liabilities 53,426 540,139 267,986 257,346
Deferred Credits and Other Liabilities:
Deferred income taxes 596 598,843 371,841 454,026
Unamortized investment tax credits 72,928 35,470 47,864
Three Mile Island Unit 2 future costs 85,273 170,593 85,273
Other 24,204 321,752 138,377 120,009
Total deferred credits and other
liabilities 24,800 1,078,796 716,281 707,172
Total Liabilities and Capital $ 78,276 $ 4,336,788 $ 2,236,279 $ 2,381,054
<FN>
The notes to the consolidated financial statements of GPU, Met-Ed and Penelec and the notes to the
<PAGE>
financial statements of JCP&L, which are incorporated by reference from the respective annual reports
on Form 10-K for the year ended December 31, 1994, are an integral part of the consolidating financial
statements.
</FN>
</TABLE>
-38B-
<PAGE>
<TABLE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Statement of Income
For the Twelve Months Ended December 31, 1994
(In Thousands)
<CAPTION>
The Corp. and General
Subsidiary Eliminations Public Energy GPU
Companies and Utilities Initiatives Service
Consolidated Adjustments Corporation Incorporated Corporation
<S> <C> <C> <C> <C> <C>
Operating Revenues $ 3,649,516 $ 53,651(B,C, $ 4,695
D,H)
Equity in Earnings of Subsidiaries - 170,529(A,H) $ 171,543 (1,014)
Services Rendered at Cost to Affiliated Companies - 582,140(E,F) $ 137,711
Operating Expenses:
Fuel 363,834
Power purchased and interchanged:
Affiliates - 42,805(C,D)
Others 894,560
Deferral of energy costs, net (29,025)
Other operation and maintenance 1,076,925 573,072(B,D,E, 3,481 8,574 124,854
F,H)
Depreciation and amortization 353,705 3,160(E,H) 370 2,790
Taxes, other than income taxes 348,945 16,508(E,F) 6,310
Total operating expenses 3,008,944 635,545 3,481 8,944 133,954
Operating income before income taxes 640,572 170,775 168,062 (5,263) 3,757
Income taxes 152,047 (837)(E,F,G) (1,624) 641
Operating Income 488,525 171,612 168,062 (3,639) 3,116
Other Income and Deductions:
Allowance for other funds used
during construction 4,712
Other income/(expense), net (152,236) 5,207(E,F) 769 518 317
Income taxes 66,369 (1,624)(G)
Total other income and deductions (81,155) 3,583 769 518 317
Income Before Interest Charges and
Preferred Dividends 407,370 175,195 168,831 (3,121) 3,433
Interest Charges and Preferred Dividends:
Interest on long-term debt 183,186 3,073(E) 3,073
Other interest 39,227 579(E,F,H) 5,143 15 360
Allowance for borrowed funds used during
construction (7,115)
Dividends on preferred securities
of subsidiaries 7,692
<PAGE>
Preferred stock dividends of subsidiaries 20,692 (20,692)(A)
Total interest charges and
preferred dividends 243,682 (17,040) 5,143 15 3,433
Net Income $ 163,688 $ 192,235 $ 163,688 $ (3,136) $ -
Earnings Per Average Common Share $ 1.42
Average Common Shares Outstanding 115,160
<FN>
The notes to the consolidated financial statements of GPU, Met-Ed and Penelec and the notes to the financial statements
of JCP&L, which are incorporated by reference from the respective annual reports on Form 10-K for the year ended
December 31, 1994, are an integral part of the consolidating financial statements.
</TABLE> -39A-
<PAGE>
<TABLE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Statement of Income
For the Twelve Months Ended December 31, 1994
(In Thousands)
<CAPTION>
GPU Jersey Central Metropolitan Pennsylvania
Nuclear Power & Light Edison Electric
Corporation Company Company Company
<S> <C> <C> <C> <C>
Operating Revenues $ 1,952,425 $ 801,303 $ 944,744
Equity in Earnings of Subsidiaries
Services Rendered at Cost to Affiliated Companies $ 137,711 $ 444,429
Operating Expenses:
Fuel 94,503 94,260 175,071
Power purchased and interchanged:
Affiliates 18,661 17,834 6,310
Others 579,948 162,693 151,919
Deferral of energy costs, net (19,448) (15,518) 5,941
Other operation and maintenance 433,493 526,623 258,656 294,316
Depreciation and amortization 191,042 86,063 76,600
Taxes, other than income taxes 10,198 231,070 51,817 66,058
Total operating expenses 443,691 1,622,399 655,805 776,215
Operating income before income taxes 738 330,026 145,498 168,529
Income taxes 146 75,748 34,002 42,297
Operating Income 592 254,278 111,496 126,232
Other Income and Deductions:
Allowance for other funds used
during construction 893 1,978 1,841
Other income/(expense), net (388) 21,995 (98,953) (71,287)
Income taxes (9,372) 42,748 31,369
Total other income and deductions (388) 13,516 (54,227) (38,077)
Income Before Interest Charges and
Preferred Dividends 204 267,794 57,269 88,155
Interest Charges and Preferred Dividends:
Interest on long-term debt 93,477 43,270 46,439
Other interest 204 14,726 11,937 7,421
Allowance for borrowed funds used during
construction (3,250) (1,869) (1,996)
Dividends on preferred securities
of subsidiaries 3,200 4,492
<PAGE>
Preferred stock dividends of subsidiaries
Total interest charges and
preferred dividends 204 104,953 56,538 56,356
Net Income $ - $ 162,841 $ 731 $ 31,799
Earnings Per Average Common Share
Average Common Shares Outstanding
<FN>
The notes to the consolidated financial statements of GPU, Met-Ed and Penelec and the notes to the financial
statements of JCP&L, which are incorporated by reference from the respective annual reports on Form 10-K for
the year ended December 31, 1994, are an integral part of the consolidating financial statements.
</TABLE> -39B-
<PAGE>
<TABLE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Statement of Retained Earnings
For the Twelve Months Ended December 31, 1994
(In Thousands)
<CAPTION>
The Corp. and General
Subsidiary Eliminations Public Energy GPU
Companies and Utilities Initiatives Service
Consolidated Adjustments Corporation Incorporated Corporation
<S> <C> <C> <C> <C> <C>
Balance at beginning of period $ 1,813,490 $ 1,269,679(A) $ 1,815,740 $ (12,482) $ (2,250)
Add - Net income 163,688 192,235(A) 163,688 (3,136)
Deduct - Cash dividends declared
on common stock 207,215 207,215
Cash dividends declared
on common stock of
subsidiary companies - 200,000(A)
Cash dividends on cumulative
preferred stock - 20,692(A)
Other adjustments, net (5,796) 2,304(A) 2,304 (7,317) (1,551)
Balance at end of period $ 1,775,759 $ 1,238,918 $ 1,769,909 $ (8,301) $ (699)
<FN>
The notes to the consolidated financial statements of GPU, Met-Ed and Penelec and the notes to the financial statements
of JCP&L, which are incorporated by reference from the respective annual reports on Form 10-K for the year ended December 31,
1994, are an integral part of the consolidating financial statements.
</TABLE>
<PAGE>
-40A-
<TABLE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Statement of Retained Earnings
For the Twelve Months Ended December 31, 1994
(In Thousands)
<CAPTION>
GPU Jersey Central Metropolitan Pennsylvania
Nuclear Power & Light Edison Electric
Corporation Company Company Company
<S> <C> <C> <C> <C>
Balance at beginning of period $ $ 724,194 $ 229,677 $ 328,290
Add - Net income 162,841 731 31,799
Deduct - Cash dividends declared
on common stock
Cash dividends declared
on common stock of
subsidiary companies 100,000 35,000 65,000
Cash dividends on cumulative
preferred stock 14,795 2,960 2,937
Other adjustments, net 1,706 1,366
Balance at end of period $ - $ 772,240 $ 190,742 $ 290,786
<FN>
The notes to the consolidated financial statements of GPU, Met-Ed and Penelec and the notes to the
financial statements of JCP&L, which are incorporated by reference from the respective annual reports
on Form 10-K for the year ended December 31, 1994, are an integral part of the consolidating financial
statements.
</TABLE>
<PAGE>
-40B-
<PAGE>
<TABLE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Statement of Cash Flows
For the Twelve Months Ended December 31, 1994
<CAPTION> (In Thousands)
The Corp. and General
Subsidiary Eliminations Public Energy GPU
Companies and Utilities Initiatives Service
Consolidated Adjustments Corporation Incorporated Corporation
<S> <C> <C> <C> <C> <C>
Operating Activities:
Income before preferred stock dividends of subsidiaries$ 184,380 $ 171,543 $ 163,688 $ (3,136)
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries (171,543) (171,543)
Depreciation and amortization 363,099 370 $ 2,790
Amortization of property under capital leases 56,793 5,569
Three Mile Island Unit 2 costs 183,944
Voluntary enhanced retirement program 126,964
Nuclear outage maintenance costs, net (7,425)
Deferred income taxes and investment tax credits, net (80,139) (244) (3,268)
Deferred energy costs, net (28,463)
Accretion income (14,855)
Allowance for other funds used during construction (4,713)
Changes in working capital:
Receivables 6,799 7,982 (4) (343) 181
Materials and supplies 316
Special deposits and prepayments 25,696 (10,182) (3,050) 952
Payables and accrued liabilities (58,952) 2,200 891 2,028 4,218
Due to/from affiliates - (420) (14) 7,851
Other, net (3,311) 7,530 (1,404) (3,948)
Net cash provided (required) by operating activities 750,133 - 142 (5,793) 14,345
Investing Activities:
Cash construction expenditures (585,916) (4,262)
Contributions to decommissioning trusts (33,575)
Nonregulated investments (73,835) (73,835)
Other, net (17,429) (636) (245) (1,344)
Net cash used for investing activities (710,755) (636) (74,080) (5,606)
Financing Activities:
Issuance of long-term debt 178,787
Increase (Decrease) in notes payable, net 131,574 93,900
Retirement of long-term debt (197,232) (3,200)
Capital lease principal payments (61,002) (5,569)
Issuance of preferred securities of subsidiaries 197,917
Redemption of preferred stock of subsidiaries (62,763)
Dividends paid on common stock (204,233) (204,233)
Dividends paid on preferred stock of subsidiaries (21,538)
Dividends paid on common stock - Internal - 200,000
Cash contributions to subsidiaries - (74,864) 74,864
Net cash provided (required) by financing activities (38,490) 14,803 74,864 (8,769)
Net increase (decrease) in cash and temporary
cash investments from above activities 888 14,309 (5,009) (30)
Cash and temporary cash investments, beginning of year 25,843 68 5,781 76
Cash and temporary cash investments, end of year $ 26,731 $ - $ 14,377 $ 772 $ 46
Supplemental Disclosure:
Interest paid (net of amount capitalized) $ 249,765 $ 4,177 $ 3,433
Income taxes paid $ 124,274 $ (1,493) $ 355
New capital lease obligations incurred $ 43,246 $ 21
Common stock dividends declared but not paid $ 51,843 $ 51,843
<FN>
The notes to the consolidated financial statements of GPU, Met-Ed and Penelec and the notes to the financial statements of JCP&L,
which are incorporated by reference from the respective annual reports on Form 10-K for the year ended December 31, 1994, are an
integral part of the consolidating financial statements. -41A-
</TABLE>
<PAGE>
<TABLE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Statement of Cash Flows
For the Twelve Months Ended December 31, 1994
<CAPTION> (In Thousands)
GPU Jersey Central Metropolitan Pennsylvania
Nuclear Power & Light Edison Electric
Corporation Company Company Company
<S> <C> <C> <C> <C> <C>
Operating Activities:
Income before preferred stock dividends of subsidiaries $ 162,841 $ 731 $ 31,799
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries
Depreciation and amortization 209,823 80,501 69,615
Amortization of property under capital leases 27,876 14,795 8,553
Three Mile Island Unit 2 costs 127,640 56,304
Voluntary enhanced retirement program 46,862 35,246 44,856
Nuclear outage maintenance costs, net (16,182) 5,895 2,862
Deferred income taxes and investment tax credits, net $ (7,609) 35,426 (53,993) (50,451)
Deferred energy costs, net (19,166) (15,518) 6,221
Accretion income (13,541) (1,114) (200)
Allowance for other funds used during construction (893) (1,978) (1,842)
Changes in working capital:
Receivables (437) 24,579 6,714 (15,909)
Materials and supplies 1,221 944 (1,849)
Special deposits and prepayments 279 20,282 (4,593) 1,644
Payables and accrued liabilities (1,463) (85,070) 33,606 (10,962)
Due to/from affiliates 19,334 (18,415) (6,458) (1,878)
Other, net (6,508) (19,537) 7,753 12,803
Net cash provided (required) by operating activities 3,596 356,106 230,171 151,566
Investing Activities:
Cash construction expenditures (3,595) (243,878) (159,717) (174,464)
Contributions to decommissioning trusts (17,237) (10,633) (5,705)
Nonregulated investments
Other, net (15,417) 79 134
Net cash used for investing activities (3,595) (276,532) (170,271) (180,035)
Financing Activities:
Issuance of long-term debt 49,687 129,100
Increase (Decrease) in notes payable, net 110,500 (81,600) 8,774
Retirement of long-term debt (60,008) (26,016) (108,008)
Capital lease principal payments (31,531) (15,168) (8,734)
Issuance of preferred securities of subsidiaries 96,732 101,185
Redemption of preferred stock of subsidiaries (36,595) (26,168)
Dividends paid on common stock
Dividends paid on preferred stock of subsidiaries (14,795) (3,632) (3,111)
Dividends paid on common stock - Internal (100,000) (35,000) (65,000)
Cash contributions to subsidiaries
Net cash provided (required) by financing activities (95,834) (51,592) 28,038
Net increase (decrease) in cash and temporary
cash investments from above activities 1 (16,260) 8,308 (431)
Cash and temporary cash investments, beginning of year 57 17,301 938 1,622
Cash and temporary cash investments, end of year $ 58 $ 1,041 $ 9,246 $ 1,191
Supplemental Disclosure:
Interest paid (net of amount capitalized) $ 204 $ 109,094 $ 77,636 $ 55,221
Income taxes paid $ 5,733 $ 44,619 $ 15,179 $ 59,881
New capital lease obligations incurred $ 37,699 $ 3,126 $ 2,400
Common stock dividends declared but not paid
<FN>
The notes to the consolidated financial statements of GPU, Met-Ed and Penelec and the notes to the financial statements
of JCP&L, which are incorporated by reference from the respective annual reports on Form 10-K for the year ended December 31,
1994, are an integral part of the consolidating financial statements.
</TABLE> -41B-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
A. Annual Reports
The following documents are incorporated by reference:
A-1 General Public Utilities Corporation - Annual Report on Form 10-K for
1994 (File No. 1-6047)
Jersey Central Power & Light Company - Annual Report on Form 10-K for
1994 (File No. 1-3141)
Metropolitan Edison Company - Annual Report on Form 10-K for 1994
(File No. 1-446)
Pennsylvania Electric Company - Annual Report on Form 10-K for 1994
(File No. 1-3522)
B. Certificates of Incorporation, Articles of Incorporation, By-Laws,
Partnership Agreements and Other Organizational Documents
B-1 Articles of Incorporation of GPU - incorporated by reference to
Exhibit 3-A of the Annual Report on Form 10-K for 1989, File No.
1-6047.
B-2 Articles of Incorporation of GPUSC - incorporated by reference to
Exhibit A-1 to Form U-1, File No. 70-4990.
B-3 Certificate of Incorporation of GPUN - incorporated by reference to
Exhibit A-1 to Form U-1, File No. 70-6443.
B-4 Amended and Restated Certificate of Incorporation of EI -
incorporated by reference to Exhibit B-5 to GPU's Annual Report on
Form U5S for the year 1990, File No. 30-126.
B-5 Certificate of Incorporation of Elmwood Energy Corporation -
incorporated by reference to Exhibit B-11 to GPU's Annual Report on
Form U5S for the year 1988, File No. 30-126.
B-6 Certificate of Incorporation of Camchino Energy Corporation -
incorporated by reference to Exhibit B-7 to GPU's Annual Report on
Form U5S for the year 1989, File No. 30-126.
B-7 Certificate of Incorporation of OLS Acquisition Corporation -
incorporated by reference to Exhibit B-8 to GPU's Annual Report on
Form U5S for the year 1989, File No. 30-126.
B-8 Articles of Incorporation of OLS Energy - Berkeley - incorporated by
reference to Exhibit B-9 to GPU's Annual Report on Form U5S for the
year 1989, File No. 30-126.
B-9 Articles of Incorporation of OLS Energy - Camarillo - incorporated by
reference to Exhibit B-10 to GPU's Annual Report on Form U5S for the
year 1989, File No. 30-126.
-42-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
B-10 Articles of Incorporation of OLS Energy - Chino - incorporated by
reference to Exhibit B-11 to GPU's Annual Report on Form U5S for the
year 1989, File No. 30-126.
B-11 Certificate of Incorporation of Armstrong Energy Corporation -
incorporated by reference to Exhibit B-14 to GPU's Annual Report on
Form U5S for the year 1989, File No. 30-126.
B-12 Certificate of Incorporation of Geddes Cogeneration Corporation -
incorporated by reference to Exhibit B-16 to GPU's Annual Report on
Form U5S for the year 1989, File No. 30-126.
B-13 Articles of Incorporation of North Canadian Power, Inc.
B-14 Certificate of Amendment of Articles of Incorporation of North
Canadian Power, Inc., to change to name of the company to NCP Energy,
Inc.
B-15 Certificate of Incorporation of NCP Lake Power, Inc.
B-16 Certificate of Incorporation of NCP Gem, Inc.
B-17 Certificate of Incorporation of Umatilla Groves, Inc.
B-18 Certificate of Incorporation of NCP Dade Power, Inc.
B-19 Certificate of Incorporation of NCP Pasco, Inc.
B-20 Articles of Incorporation of ADA Management Corporation.
B-21 Certificate of Amendment of Articles of Incorporation of ADA
Management Corporation to change the name of the company to Commerce
Cogeneration Corporation.
B-22 Certificate of Amendment of Articles of Incorporation of Commerce
Cogeneration Corporation to change the name of the company to NCP ADA
Power, Inc.
B-23 Certificate of Incorporation of NCP Brooklyn Power, Inc.
B-24 Articles of Incorporation of Trigen Power Company.
B-25 Certificate of Amendment of Articles of Incorporation of Trigen Power
Company to change the name of the company to ADA Power Company.
B-26 Certificate of Amendment of Articles of Incorporation of ADA Power
Company to change the name of the company to NCP Commerce Power, Inc.
B-27 Certificate of Incorporation of NCP Houston Power, Inc.
B-28 Certificate of Incorporation of NCP Perry, Inc.
B-29 Certificate of Incorporation of NCP New York, Inc.
B-30 Certificate of Incorporation of EI Selkirk, Inc.
-43-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
B-31 Memorandum of Association of 2322133 Nova Scotia Limited.
B-32 Certificate of Amendment of the Memorandum of Association of 2322133
Nova Scotia Limited to change the name of the company to EI Canada
Holding Limited.
B-33 Memorandum of Association of 2322117 Nova Scotia Limited.
B-34 Certificate of Amendment of the Memorandum of Association of 2322117
Nova Scotia Limited to change the name of the company to EI Brooklyn
Power Limited.
B-35 Memorandum of Association of 2322120 Nova Scotia Limited.
B-36 Certificate of Amendment of the Memorandum of Association of 2322120
Nova Scotia Limited to change the name of the company to EI Services
Canada Limited.
B-37 Memorandum of Association of 2285241 Nova Scotia Limited.
B-38 Certificate of Amendment of the Memorandum of Association of 2285241
Nova Scotia Limited to change the name of the company to EI Brooklyn
Investments Limited.
B-39 Memorandum of Association of EI Cayman.
B-40 Certificate of Incorporation of EI Fuels Corporation - incorporated
by reference to Exhibit B-17 of GPU's Annual Report on Form U5S for
the year 1993, File No. 30-126
B-41 Certificate of Incorporation of EI Power, Inc.
B-42 Certificate of Incorporation of Bermuda Hundred Energy, Inc. -
incorporated by reference to Exhibit B-12 to GPU's Annual Report on
Form U5S for the year 1989, File No. 30-126.
B-43 Certificate of Amendment to Certificate of Incorporation of Bermuda
Hundred Energy, Inc. - incorporated by reference to Exhibit B-12-1 to
GPU's Annual Report on Form U5S for the year 1992, File No. 30-126.
B-44 Certificate of Amendment of the Certificate of Incorporation of
Bermuda Hundred Energy, Inc. to change the name of the corporation to
Hanover Energy Corp. - incorporated by reference to Exhibit B-14 of
GPU's Annual Report on Form U5S for the year 1993, File No. 30-126.
B-45 Certificate of Incorporation of EI Power (China), Inc.
B-46 Certificate of Incorporation of EI Power (China) I, Inc.
B-47 Certificate of Incorporation of EI Power (China) II, Inc.
B-48 Certificate of Incorporation of EI Power (China) III, Inc.
-44-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
B-49 Articles of Incorporation of Saxton Nuclear Experimental Corporation
- incorporated by reference to Exhibit B-12 to GPU's Annual Report on
Form U5S for the year 1988, File No. 30-126.
B-50 Restated Certificate of Incorporation of JCP&L as amended to date -
incorporated by reference to Exhibit 3-A of the Annual Report on Form
10-K for 1993, File No. 1-3141.
B-51 Certificate of Incorporation of JCP&L Preferred Capital, Inc. -
incorporated by reference to Exhibit A-1, Application on Form U-1,
File No. 70-8495.
B-52 Restated Articles of Incorporation of Met-Ed - incorporated by
reference to Exhibit B-18 to GPU's Annual Report on Form U5S for the
year 1991, File No. 30-126.
B-53 Articles of Incorporation of York Haven Power Company - incorporated
by reference to Exhibit B-15 to GPU's Annual Report on Form U5S for
the year 1988, File No. 30-126.
B-54 Certificate of Incorporation of Met-Ed Preferred Capital, Inc. -
incorporated by reference to Exhibit 3-C to Registration Statement on
Form S-3, Registration No. 33-53673.
B-55 Restated Articles of Incorporation of Penelec - incorporated by
reference to Exhibit 3-A on Form 10-K for 1991, File No. 1-3522.
B-56 Articles of Incorporation of Nineveh Water Company (formerly Penelec
Water Company) - incorporated by reference to Exhibit B-36 to GPU's
Annual Report on Form U5S for the year 1988, File No. 30-126.
B-57 Certificate of Incorporation of Penelec Preferred Capital, Inc. -
incorporated by reference to Exhibit 3-C to Registration Statement on
Form S-3, Registration No. 33-53677.
B-58 Amended By-Laws of GPU - incorporated by reference to Exhibit 3-A of
the Annual Report on Form 10-K for 1990, File No. 1-6047.
B-59 Amended By-Laws of GPUSC - incorporated by reference to Exhibit 3-A
of the Annual Report on Form 10-K for 1994, File No. 1-6047.
B-60 Amended By-Laws of GPUN - incorporated by reference to Exhibit 3-A of
the Annual Report on Form 10K for 1993, File No. 1-6047.
B-61 Amended By-Laws of EI - incorporated by reference to Exhibit B-27 to
GPU's Annual Report on Form U5S for the year 1993, File No. 30-126.
B-62 Amended By-Laws of Elmwood Energy Corporation - incorporated by
reference to Exhibit B-26 to GPU's Annual Report on Form U5S for the
year 1992, File No. 30-126.
B-63 By-Laws of Camchino Energy Corporation - incorporated by reference to
Exhibit B-53 to GPU's Annual Report on Form U5S for the year 1989,
File No. 30-126.
-45-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
B-64 By-Laws of OLS Acquisition Corporation - incorporated by reference to
Exhibit B-54 to GPU's Annual Report on Form U5S for the year 1989,
File No. 30-126.
B-65 By-Laws of OLS Energy - Berkeley - incorporated by reference to
Exhibit B-55 to GPU's Annual Report on Form U5S for the year 1989,
File No. 30-126.
B-66 By-Laws of OLS Energy - Camarillo - incorporated by reference to
Exhibit B-56 to GPU's Annual Report on Form U5S for the year 1989,
File No. 30-126.
B-67 By-Laws of OLS Energy - Chino - incorporated by reference to Exhibit
B-57 to GPU's Annual Report on Form U5S for the year 1989, File No.
30-126.
B-68 Amended By-Laws of Armstrong Energy Corporation - incorporated by
reference to Exhibit B-33 to GPU's Annual Report on Form U5S for the
year 1992, File No. 30-126.
B-69 Amended By-Laws of Geddes Cogeneration Corporation - incorporated by
reference to Exhibit B-34 to GPU's Annual Report on Form U5S for the
year 1992, File No. 30-126.
B-70 By-Laws of North Canadian Power, Inc. (subsequently renamed NCP
Energy, Inc.)
B-71 By-Laws of NCP Lake Power, Inc.
B-72 By-Laws of NCP Gem, Inc.
B-73 By-Laws of Umatilla Groves, Inc.
B-74 By-Laws of NCP Dade Power, Inc.
B-75 By-Laws of NCP Pasco, Inc.
B-76 By-Laws of Commerce Cogeneration Corporation (formerly known as ADA
Management Corporation) - subsequently renamed NCP ADA Power, Inc.
B-77 By-Laws of NCP Brooklyn Power, Inc.
B-78 By-Laws of Trigen Power Company (successively renamed ADA Power
Company and NCP Commerce Power, Inc.)
B-79 By-Laws of NCP Houston Power, Inc.
B-80 By-Laws of NCP Perry, Inc.
B-81 By-Laws of NCP New York, Inc.
B-82 By-Laws of EI Selkirk, Inc.
B-83 Articles of Association of 2322133 Nova Scotia Limited (subsequently
renamed EI Canada Holding Limited).
-46-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
B-84 Articles of Association of 2322117 Nova Scotia Limited (subsequently
renamed EI Brooklyn Power Limited).
B-85 Articles of Association of 2322120 Nova Scotia Limited (subsequently
renamed EI Services Canada Limited).
B-86 Articles of Association of 2285241 Nova Scotia, Ltd. (subsequently
renamed EI Brooklyn Investments, Limited).
B-87 By-Laws of EI Cayman.
B-88 By-Laws of EI Fuels Corporation - incorporated by reference to
Exhibit B-37 to GPU's Annual Report on Form U5S for the year 1993,
File No. 30-126.
B-89 By-Laws of EI Power, Inc.
B-90 Amended By-Laws of Hanover Energy Corp. (formerly Bermuda Hundred
Energy, Inc.) - incorporated by reference to Exhibit B-32 to GPU's
Annual Report on Form U5S for the year 1992, File No. 30-126.
B-91 By-Laws of EI Power (China), Inc.
B-92 By-Laws of EI Power (China) I, Inc.
B-93 By-Laws of EI Power (China) II, Inc.
B-94 By-Laws of EI Power (China) III, Inc.
B-95 Amended By-Laws of Saxton dated March 30, 1984 - incorporated by
reference to Exhibit A-1(e) of Form U-1, File No. 70-7398.
B-96 Amendment to Section 37 of the By-Laws of Saxton - incorporated by
reference to Exhibit A-2(b), Certificate Pursuant to Rule 24, File
No. 70-7398.
B-97 Amended By-Laws of JCP&L - incorporated by reference to Exhibit 3-B
of the Annual Report on Form 10-K for 1993, File No. 1-3141.
B-98 By-Laws of JCP&L Preferred Capital, Inc. - incorporated by reference
to Exhibit A-2, Application on Form U-1, File No. 70-8495.
B-99 Amended By-Laws of Met-Ed - incorporated by reference to Exhibit 3-A
of the Annual Report on Form 10-K for 1990, File No. 1-446.
B-100 Amended By-Laws of York Haven Power Company dated January 1, 1985 -
incorporated by reference to Exhibit A-1(d), Application on Form U-1,
File No. 70-7398.
B-101 Amendment to Section 29 of the By-Laws of York Haven Power Company -
incorporated by reference to Exhibit A-2(a), Certificate Pursuant to
Rule 24, File No. 70-7398.
B-102 By-Laws of Met-Ed Preferred Capital, Inc. - incorporated by reference
to Exhibit A-2, Application on Form U-1, File No. 70-8401.
-47-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
B-103 Amended By-Laws of Penelec dated January 24, 1992 - incorporated by
reference to Exhibit 3-B on Form 10-K for 1991, File No. 1-3522.
B-104 By-Laws of Nineveh Water Co. dated May 22, 1920 - incorporated by
reference to Exhibit A-1(c), Application on Form U-1, File No.
70-7398.
B-105 Amendment to Article V, Section 6 of the By-Laws of Nineveh Water Co.
- incorporated by reference to Exhibit A-1 (c), Certificate Pursuant
to Rule 24, File No. 70-7398.
B-106 By-Laws of Penelec Preferred Capital, Inc. - incorporated by
reference to Exhibit A-2, Application on Form U-1, SEC File
No. 70-8403.
B-107 Agreement of Limited Partnership of Ada Cogeneration Limited
Partnership - incorporated by reference to Exhibit B-6(a)(i)-(iii),
Application on Form U-1, File No. 70-8369.
B-108 Amended and Restated Limited Partnership Agreement of Brooklyn Energy
Limited Partnership - filed pursuant to request for confidential
treatment.
B-109 Agreement of Limited Partnership of FPB Cogeneration Limited
Partnership - incorporated by reference to Exhibit B-7(a),
Application Form U-1, File No. 70-8369.
B-110 Agreement of Limited Partnership of Lake Cogen, Ltd. - incorporated
by reference to Exhibit B-3(a), Application on Form U-1, File
No. 70-8369.
B-111 First Amendment to Lake Cogen, Ltd. Limited Partnership Agreement -
incorporated by reference to Exhibit B-3(a), Certificate Pursuant to
Rule 24, File No. 70-8369.
B-112 Agreement of Limited Partnership of Lake Investment, L.P.
B-113 Amended and Restated Limited Partnership Agreement of Onondaga
Cogeneration Limited Partnership - incorporated by reference to
Exhibit A-1(a), Certificate Pursuant to Rule 24, File No. 70-7942.
B-114 Limited Partnership Agreement of Pasco Cogen, Ltd., as amended by
Amendment Nos. 1, 2 and 3 thereto - incorporated by reference to
Exhibit B-4(a)(i)-(iv), Application on Form U-1, File No. 70-8369.
B-115 Fourth Amendment to Limited Partnership Agreement of Pasco Cogen,
Ltd. - incorporated by reference to Exhibit B-4(a), Certificate
Pursuant to Rule 24, File No. 70-8369.
B-116 Agreement of Limited Partnership of Dade Investment, L.P.
B-117 Amended and Restated Limited Partnership Agreement of Prime Energy
Limited Partnership - incorporated by reference to Exhibit A-1,
Application on Form U-1, File No. 70-7647.
-48-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C. Instruments defining the rights of security holders, including
indentures
C-1 Indenture, dated as of March 1, 1946, between JCP&L and I.B.J.
Schroder Bank & Trust Company, Successor Trustee, as amended and
supplemented by eight supplemental indentures - incorporated by
reference to JCP&L's Instruments of Indebtedness Nos. 1 to 7,
inclusive, and 9 and 10 filed as part of Amendment No. 1 to GPU's
Annual Report on Form U5S for the year 1959, File Nos. 30-126 and
1-3292.
C-2 Twenty-five Supplemental Indentures - incorporated by reference to
Exhibit 2-C, Registration No. 2-20732,
Exhibit 2-C, Registration No. 2-21645,
Exhibit 5-A-3, Registration No. 2-59785,
Exhibit 5-A-4, Registration No. 2-59785,
Exhibit 4-C, Registration No. 2-25124,
Exhibit 5-A-6, Registration No. 2-59785,
Exhibit 5-A-7, Registration No. 2-59785,
Exhibit 5-A-8, Registration No. 2-59785,
Exhibit 5-A-9, Registration No. 2-59785,
Exhibit 5-A-10, Registration No. 2-59785,
Exhibit 5-A-11, Registration No. 2-59785,
Exhibit 5-A-12, Registration No. 2-59785,
Exhibit 5-A-13, Registration No. 2-59785,
Exhibit 5-A-14, Registration No. 2-59785,
Exhibit 5-A-15, Registration No. 2-59785,
Exhibit 5-A-16, Registration No. 2-59785,
Exhibit 5-A-17, Registration No. 2-59785,
Exhibit 5-A-18, Registration No. 2-59785,
Exhibit 5-A-19, Registration No. 2-59785,
Exhibit 5-A-20, Registration No. 2-59785,
Exhibit 5-A-21, Registration No. 2-59785,
Exhibit 5-A-22, Registration No. 2-59785,
Exhibit 5-A-23, Registration No. 2-59785,
Exhibit 5-A-24, Registration No. 2-59785, and
Exhibit 5-A-25, Registration No. 2-60438, respectively.
C-3 Thirty-third Supplemental Indenture, dated as of January 1, 1979 -
incorporated by reference to Exhibit A-20(b), Certificate Pursuant to
Rule 24, File No. 70-6242.
C-4 Thirty-fourth Supplemental Indenture, dated as of June l, 1979 -
incorporated by reference to Exhibit A-28, Certificate Pursuant to
Rule 24, File No. 70-6290.
C-5 Thirty-sixth Supplemental Indenture, dated as of October 1, 1979 -
incorporated by reference to Exhibit A-30, Certificate Pursuant to
Rule 24, File No. 70-6354.
C-6 Thirty-seventh Supplemental Indenture, dated as of September 1, 1984
- incorporated by reference to Exhibit A-1(cc), Certificate Pursuant
to Rule 24, File No. 70-7001.
-49-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-7 Thirty-eighth Supplemental Indenture, dated as of July 1, 1985 -
incorporated by reference to Exhibit A-1(dd), Certificate Pursuant to
Rule 24, File No. 70-7109.
C-8 Thirty-ninth Supplemental Indenture, dated as of April 1, 1988 -
incorporated by reference to Exhibit A-1(a), Certificate Pursuant to
Rule 24, File No. 70-7263.
C-9 Fortieth Supplemental Indenture, dated as of June 14, 1988 -
incorporated by reference to Exhibit A-1(ff), Certificate Pursuant to
Rule 24, File No. 70-7603.
C-10 Forty-first Supplemental Indenture, dated as of April 1, 1989 -
incorporated by reference to Exhibit A-1(gg), Certificate Pursuant to
Rule 24, File No. 70-7603.
C-11 Forty-second Supplemental Indenture First Mortgage Bonds, Designated
Secured Medium-Term Notes, Series A, dated as of July 1, 1989 -
incorporated by reference to Exhibit A-1(hh), Certificate Pursuant to
Rule 24, File No. 70-7603.
C-12 Forty-third Supplemental Indenture First Mortgage Bonds, Designated
Secured Medium-Term Notes, Series B, dated as of March 1, 1991 -
incorporated by reference to Exhibit 4-A-35, Registration
No. 33-45314.
C-13 Forty-fourth Supplemental Indenture First Mortgage Bonds, Designated
Secured Medium-Term Notes, Series C, dated as of March 1, 1992 -
incorporated by reference to Exhibit 4-A-36, Registration No.
33-49405.
C-14 Forty-fifth Supplemental Indenture, dated as of October 1, 1992 -
incorporated by reference to Exhibit 4-A-37, Registration No.
33-49405.
C-15 Forty-sixth Supplemental Indenture First Mortgage Bonds, Designated
Secured Medium-Term Notes, Series D, dated as of April 1, 1993 -
incorporated by reference to Exhibit C-15 to GPU's Annual Report on
Form U5S for the year 1992, File No. 30-126.
C-16 Forty-seventh Supplemental Indenture, dated as of April 10, 1993 -
incorporated by reference to Exhibit C-16 to GPU's Annual Report on
Form U5S for the year 1992, File No. 30-126.
C-17 Forty-eighth Supplemental Indenture, dated as of April 15, 1993 -
incorporated by reference to Exhibit C-17 to GPU's Annual Report on
Form U5S for the year 1992, File No. 30-126.
C-18 Forty-ninth Supplemental Indenture, dated as of October 1, 1993 -
incorporated by reference to Exhibit C-18 to GPU's Annual Report on
Form U5S for the year 1993, File No. 30-126.
C-19 Fiftieth Supplemental Indenture, dated as of August 1, 1994.
-50-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-20 Trust Indenture between the New Jersey Economic Development Authority
and the Trustee, dated as of July 1, 1985, relating to JCP&L's 1985
Series Bonds - incorporated by reference to Exhibit B-1, Certificate
Pursuant to Rule 24, File No. 70-7109.
C-21 Nuclear Material Lease Agreement, dated as of August 1, 1991, between
Oyster Creek Fuel Corporation and JCP&L - incorporated by reference
to Exhibit B-2(b), Certificate Pursuant to Rule 24, File No. 70-7862.
C-22 Nuclear Material Lease Agreement, dated as of August 1, 1991, between
TMI-1 Fuel Corporation and JCP&L - incorporated by reference to
Exhibit B-2(c), Certificate Pursuant to Rule 24, File No. 70-7862.
C-23 Letter Agreements, dated as of August 1, 1991, from JCP&L relating to
the Oyster Creek and the TMI-1 Leases - incorporated by reference to
Exhibit B-2(f), Certificate Pursuant to Rule 24, File No. 70-7862.
C-24 Trust Agreement, dated as of August 1, 1991, between United States
Trust Company of New York, as Owner Trustee, Lord Fuel Corp., as
Trustor and Beneficiary, and JCP&L and its affiliates - incorporated
by reference to Exhibit B-4, Certificate Pursuant to Rule 24, File
No. 70-7862.
Met-Ed
C-25 Indenture of Met-Ed, dated November 1, 1944 with Morgan Guaranty
Trust Company, Successor Trustee, as amended and supplemented by
fourteen supplemental indentures - incorporated by reference to
Met-Ed's Instruments of Indebtedness Nos. 1 to 14, inclusive, and 16,
filed as part of Amendment No. l to GPU's Annual Report on Form U5S
for the year 1959.
C-26 Fourteen Supplemental Indentures to Mortgage and Deed of Trust -
incorporated by reference to Exhibits 2-E(1) through 2-E(3), 2-E(6)
through 2-E(13), and 2-E(15) through 2-E(17), Registration No.
2-59678.
C-27 Supplemental Indenture, dated May 1, 1960 - incorporated by reference
to Exhibit 2-C, Registration No. 2-16192.
C-28 Supplemental Indenture, dated December 1, 1962 - incorporated by
reference to Exhibit A-2, Registration No. 2-20815.
C-29 Supplemental Indenture, dated July 1, 1965 - incorporated by
reference to Exhibit A-4(a), Registration No. 2-23614.
C-30 Supplemental Indenture, dated June 1, 1966 - incorporated by
reference to Exhibit 2-B-4, Registration No. 2-24883.
C-31 Supplemental Indenture, dated March 22, 1968 - incorporated by
reference to Exhibit 4-C-5, Registration No. 2-29644.
-51-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
C-32 Supplemental Indenture, dated September 1, 1968 - incorporated by
reference to Exhibit A-7(a), Registration No. 2-29644.
C-33 Supplemental Indenture, dated August 1, 1969 - incorporated by
reference to Exhibit A-8(a), Registration No. 2-33403.
C-34 Supplemental Indenture, dated November 1, 1971 - incorporated by
reference to Exhibit A-8(a), Registration No. 2-41715.
C-35 Supplemental Indenture, dated May 1, 1972 - incorporated by reference
to Exhibit A-8(a), Registration No. 2-43285.
C-36 Supplemental Indenture, dated December 1, 1973 - incorporated by
reference to Exhibit A-11, Registration No. 2-49312.
C-37 Supplemental Indenture, dated October 30, 1974 - incorporated by
reference to Exhibit A-13(a), Certificate Pursuant to Rule 24, File
No. 70-5559.
C-38 Supplemental Indenture, dated October 31, 1974 - incorporated by
reference to Exhibit A-13(b), Certificate Pursuant to Rule 24,
File No. 70-5555.
C-39 Supplemental Indenture, dated March 20, 1975 - incorporated by
reference to Exhibit A-16(a), Registration No. 2-52818.
C-40 Supplemental Indenture, dated September 25, 1975 - incorporated by
reference to Exhibit A-17(a), Registration No. 2-54352.
C-41 Supplemental Indenture, dated January 12, 1976 - incorporated by
reference to Exhibit A-11(c), Certificate Pursuant to Rule 24,
File No. 70-5328.
C-42 Supplemental Indenture, dated March 1, 1976 - incorporated by
reference to Exhibit A-18(a), Registration No. 2-55350.
C-43 Supplemental Indenture, dated September 28, 1977 - incorporated by
reference to Exhibit 2-E(18), Registration No. 2-62212.
C-44 Supplemental Indenture, dated January 1, 1978 - incorporated by
reference to Exhibit 2-E(19), Registration No. 2-62212.
C-45 Supplemental Indenture, dated September 1, 1978 - incorporated by
reference to Exhibit A-7(a), Certificate Pursuant to Rule 24, File
No. 70-6192.
C-46 Supplemental Indenture, dated as of June 1, 1979 - incorporated by
reference to Exhibit A-19, Declaration on Form U-1, File No. 70-6311.
C-47 Supplemental Indenture, dated January l, 1980 - incorporated by
reference to Exhibit A-21(a), Certificate Pursuant to Rule 24, File
No. 70-6311.
-52-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
C-48 Supplemental Indenture, dated as of September 1, 1981 - incorporated
by reference to Exhibit A-23, Certificate Pursuant to Rule 24, File
No. 70-6311.
C-49 Supplemental Indenture, dated as of September 10, 1981 - incorporated
by reference to Exhibit A-25, Certificate Pursuant to Rule 24, File
No. 70-6311.
C-50 Supplemental Indenture, dated as of December 1, 1982 - incorporated
by reference to Exhibit A-14(a), Certificate Pursuant to Rule 24,
File No. 70-6807.
C-51 Supplemental Indenture, dated as of September 1, 1983 - incorporated
by reference to Exhibit A-18(a), Certificate Pursuant to Rule 24,
File No. 70-6087.
C-52 Supplemental Indenture dated September 1, 1984 - incorporated by
reference to Exhibit A-2(n), Certificate Pursuant to Rule 24,
File No. 70-7001.
C-53 Supplemental Indenture, dated as of March 1, 1985 - incorporated by
reference to Exhibit A-2(o), Certificate Pursuant to Rule 24, File
No. 70-7080.
C-54 Supplemental Indenture, dated September l, 1985 - incorporated by
reference to Exhibit A-1(p), Certificate Pursuant to Rule 24, File
No. 70-7120.
C-55 Supplemental Indenture, dated as of June 1, 1988 - incorporated by
reference to Exhibit A-1(q), Certificate Pursuant to Rule 24, File
No. 70-7742.
C-56 Supplemental Indenture, dated as of April 1, 1990 - incorporated by
reference to Exhibit A-1(r)(1), Certificate Pursuant to Rule 24, File
No. 70-7742.
C-57 Amendment to Supplemental Indenture, dated as of May 22, 1990 -
incorporated by reference to Exhibit A-1(r)(2), Certificate Pursuant
to Rule 24, File No. 70-7742.
C-58 Supplemental Indenture, dated as of September 1, 1992 - incorporated
by reference to Exhibit C-70 to GPU's Annual Report on Form U5S for
the year 1992, File No. 30-126.
C-59 Supplemental Indenture, dated as of December 1, 1993 - incorporated
by reference to Exhibit C-58 to GPU's Annual Report on Form U5S for
the year 1993, File No. 30-126.
C-60 Trust Indenture between the Northampton County Industrial Development
Authority and Hamilton Bank as Trustee, dated as of September l,
1985, relating to Met-Ed's 1985 Series A Bonds - incorporated by
reference to Exhibit B-1, Certificate Pursuant to Rule 24, File
No. 70-7120.
-53-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
C-61 Subordinated Debenture Indenture of Met-Ed, dated as of August 1,
1994, incorporated by reference to Exhibit No. A-8(a), Certificate
Pursuant to Rule 24, File No. 70-8401.
C-62 Nuclear Material Lease Agreement, dated as of August 1, 1991, between
TMI-1 Fuel Corp. and Met-Ed - incorporated by reference to Exhibit
B-2(d), Certificate Pursuant to Rule 24, File No. 70-7862.
C-63 Letter Agreement, dated August 1, 1991, from Met-Ed relating to the
TMI-1 Lease - incorporated by reference to Exhibit B-2(f),
Certificate Pursuant to Rule 24, File No. 70-7862.
C-64 Trust Agreement, dated as of August 1, 1991, between United States
Trust Company of New York, as Owner Trustee, Lord Fuels Corp., as
Trustor and Beneficiary, and Met-Ed and its affiliates - incorporated
by reference to Exhibit B-4, Certificate Pursuant to Rule 24, File
No. 70-7862.
Penelec
C-65 Mortgage and Deed of Trust, dated as of January 1, 1942, between
Penelec and Bankers Trust Company, Trustee, and indentures
supplemental thereto executed and delivered prior to May l, 1961 -
Penelec's Instruments of Indebtedness Nos. 1 to 20, inclusive, filed
as part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959 -incorporated by reference to Exhibit 2-D, Registration
No. 2-61502.
C-66 Supplemental Indentures to Mortgage and Deed of Trust - incorporated
by reference to Exhibits 2-D(1) to 2-D(19), Registration No. 2-61502.
C-67 Indenture dated as of June 1, 1961 between Penelec and U.S. Trust
Company, Successor Trustee - incorporated by reference to Exhibit
4-B, Registration No. 2-40959.
C-68 Supplemental Indenture to Mortgage and Deed of Trust, dated as of
June 1, 1978 - incorporated by reference to Exhibit A-3(a),
Certificate Pursuant to Rule 24, File No. 70-6156.
C-69 Four Supplemental Indentures - incorporated by reference to Exhibit
No. 2-G(1), Exhibit No. 2-G(2), Exhibit No. 2-G(3) and Exhibit No.
2-G(4), Registration No. 2-61502.
C-70 Supplemental Indenture dated as of June l, 1979 - incorporated by
reference to Exhibit A-4, Certificate Pursuant to Rule 24, File
No. 70-6302.
C-71 Supplemental Indenture, dated as of September 1, 1984 - incorporated
by reference to Exhibit A-3(d), Certificate Pursuant to Rule 24, File
No. 70-7001.
-54-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
C-72 Supplemental Indenture, dated as of December 1, 1985 - incorporated
by reference to Exhibit A-1(e), Certificate Pursuant to Rule 24, File
No. 70-7160.
C-73 Supplemental Indenture, dated as of December 1, 1990 - incorporated
by reference to Exhibit 4-A(8), Registration No. 33-45312.
C-74 Supplemental Indenture, dated as of March 1, 1992 - incorporated by
reference to Exhibit C-89 to GPU's Annual Report on Form U5S for the
year 1991, File No. 30-126.
C-75 Supplemental Indenture, dated as of June 1, 1993 - incorporated by
reference to Exhibit C-73 to GPU's Annual Report on Form U5S for the
year 1993, File No. 30-126.
C-76 Trust Indenture between the Cambria County Industrial Development
Authority and Manufacturers Hanover Trust Company, the Trustee, dated
as of December 1, 1985, relating to Penelec's 1985 Series A Bonds -
incorporated by reference to Exhibit B-1, Certificate Pursuant to
Rule 24, File No. 70-7160.
C-77 Subordinated Debenture Indenture of Penelec, dated as of July 1, 1994
incorporated by reference to Exhibit No. A-8(a), Certificate Pursuant
to Rule 24, File No. 70-8403.
C-78 Supplemental Indenture, dated as of December 1, 1986, relating to
Penelec's 6 1/2% Series B Bonds - incorporated by reference to
Exhibit A-1(f), Certificate Pursuant to Rule 24, File No. 70-7328.
C-79 First Supplemental Indenture, dated as of December 1, 1986, to Trust
Indenture between the Cambria County Industrial Development Authority
and Manufacturers Hanover Trust Company, the Trustee, relating to
Penelec's 1986 Series B Bonds - incorporated by reference to Exhibit
B-1, Certificate Pursuant to Rule 24, File No. 70-7328.
C-80 Supplemental Indenture, dated as of May 1, 1989 - incorporated by
reference to Exhibit A-1(gg), Certificate Pursuant to Rule 24, File
No. 70-7576.
C-81 Nuclear Material Lease Agreement, dated as of August 1, 1991, between
TMI-1 Fuel Corp. and Penelec - incorporated by reference to Exhibit
B-2(e), Certificate Pursuant to Rule 24, File No. 70-7862.
C-82 Letter Agreement, dated August 1, 1991, between TMI-1 Fuel Corp. and
Penelec - incorporated by reference to Exhibit B-2(f), Certificate
Pursuant to Rule 24, File No. 70-7862.
C-83 Trust Agreement, dated as of August 1, 1991, between United States
Trust Company of New York, as Owner Trustee, Lord Fuels Corp., as
Trustor and Beneficiary, and Penelec and its affiliates -
incorporated by reference to Exhibit B-4, Certificate Pursuant to
Rule 24, File No. 70-7862.
-55-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Other
C-84 Term Loan, Revolving Credit and Guaranty Agreement between First
Fidelity Bank, National Association, New Jersey and GPUSC made as of
September 30, 1993 - incorporated by reference to Exhibit B-1(a),
Certificate Pursuant to Rule 24, File No. 70-8223.
C-85 General Public Utilities Corporation Restricted Stock Plan for
Outside Directors - incorporated by reference to Exhibit 10-A of the
GPU Annual Report on Form 10-K for 1994, File No. 1-6047.
C-86 1990 Stock Plan for Employees of General Public Utilities Corporation
and Subsidiaries - incorporated by reference to Exhibit 10-B of the
GPU Annual Report on Form 10-K for 1993, File No. 1-6047.
C-87 Form of Restricted Units Agreement under the 1990 Stock Plan -
incorporated by reference to Exhibit 10-C of the GPU Annual Report on
Form 10-K for 1993, File No. 1-6047.
C-88 Retirement Plan for Outside Directors of General Public Utilities
Corporation - incorporated by reference to Exhibit 10-B of the GPU
Annual Report on Form 10-K for 1994, File No. 1-6047.
C-89 Deferred Remuneration Plan for Outside Directors of General Public
Utilities Corporation - incorporated by reference to Exhibit 10-C of
the GPU Annual Report on Form 10-K for 1994, File No. 1-6047.
C-90 Deferred Remuneration Plan for Outside Directors of Jersey Central
Power & Light Company - incorporated by reference to Exhibit 10-F of
the JCP&L Annual Report on Form 10-K for 1992, File No. 1-3141.
C-91 GPU System Companies Deferred Compensation Plan for Elected Officers
-incorporated by reference to Exhibit 10-I of the GPU Annual Report
on Form 10-K for 1992, File No. 1-6047.
C-92 GPU Service Corporation Supplemental and Excess Benefits Plan -
incorporated by reference to Exhibit 10-J-1 of the GPU Annual Report
on Form 10-K for 1992, File No. 1-6047.
C-93 GPU Nuclear Corporation Supplemental and Excess Benefits Plan -
incorporated by reference to Exhibit 10-J-2 of the GPU Annual Report
on Form 10-K for 1992, File No. 1-6047.
C-94 Jersey Central Power & Light Company Supplemental and Excess Benefits
Plan - incorporated by reference to Exhibit 10-H of the JCP&L Annual
Report on Form 10-K for 1992, File No. 1-3141.
C-95 Metropolitan Edison Company Supplemental and Excess Benefits Plan -
incorporated by reference to Exhibit 10-G of the Met-Ed Annual Report
on Form 10-K for 1992, File No. 1-446.
C-96 Pennsylvania Electric Company Supplemental and Excess Benefits Plan -
incorporated by reference to Exhibit 10-D of the Penelec Annual
Report on Form 10-K for 1992, File No. 1-3522.
-56-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Other
C-97 Incentive Compensation Plan for Officers of GPU System Companies -
incorporated by reference to Exhibit 10-E of the GPU Annual Report on
Form 10K for 1993, File No. 1-6047.
C-98 Senior Executive Life Insurance Program - incorporated by reference
to description contained on pages 13-14 of GPU's 1992 definitive
proxy statement, SEC File No. 1-6047.
C-99 Supplemental Extraordinary Medical Expense Plan for Certain GPU
System Officers - incorporated by reference to Exhibit 10-M of the
GPU Annual Report on Form 10-K for 1992, File No. 1-6047.
C-100 Letter Agreement, dated March 24, 1992, between General Public
Utilities Corporation, GPU Service Corporation and I. H. Jolles -
incorporated by reference to Exhibit 10-N of the GPU Annual Report on
Form 10-K for 1992, File No. 1-6047.
C-101 Letter Agreement, dated February 22, 1993, between Jersey Central
Power & Light Company and J. R. Leva - incorporated by reference to
Exhibit 10-L of the JCP&L Annual Report on Form 10-K for 1992 - SEC
File No. 1-3141.
D-1 Tax Allocation Agreement and Amendments.
E-1 Credit Agreement of GPU, JCP&L, Met-Ed and Penelec, dated as of March
19, 1992 - incorporated by reference to Exhibit B-1(b), Certificate
Pursuant to Rule 24, File No. 70-7926.
E-2 First Amendment to the Credit Agreement dated November 1, 1994
between GPU, JCP&L, Met-Ed and Penelec; Chemical Bank and Citibank,
N.A. as co-agents; and Chemical Bank as an administrative agent
incorporated by reference to Exhibit B-1(a) pursuant to Rule 24
Certificate for SEC File No. 70-7926.
E-3 GPU Nuclear Corporation - Policy for the Purchase of Computers for
the Nuclear Science Degree Program - incorporated by reference to
Exhibit E-1 to GPU's Annual Report on Form U5S for the year 1989,
File No. 30-126.
E-4 Venture Disclosures - Licensing of Computer Programs to Nonassociated
Companies.
E-5 General Public Utilities System Accounting Policy regarding Company
Credit Card Agreements - incorporated by reference to Exhibit E-3 to
GPU's Annual Report on Form U5S for the year 1992, File No. 30-126.
E-6 Venture Disclosures - Operation and Maintenance Service Business.
-57-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Schedules Supporting Items of This Report
Exhibits
F-1 - Item 6. Part III - Compensation and other related information for the
Officers and Directors of GPU, JCP&L, Met-Ed and Penelec.
F-2 - Consolidating Financial Statements of Energy Initiatives, Inc. for
1994.
- Consolidating Financial Statements of OLS Power Limited Partnership
for 1994.
- Consolidating Financial Statements for NCP Energy, Inc for 1994.
- Consolidating Financial Statements of Metropolitan Edison Company for
1994.
- Consolidating Financial Statements of Pennsylvania Electric Company
for 1994.
G-1 - Financial Data Schedule (for EDGAR filing only).
- General Public Utilities Corporation and Subsidiary Companies
- Jersey Central Power & Light Company
- Metropolitan Edison Company and Subsidiary Companies
- Pennsylvania Electric Company and Subsidiary Companies
H-1 - Organizational chart showing the relationship of Energy Initiatives,
Inc. to each exempt wholesale generator in which it holds an interest.
H-2 - Organizational chart showing the relationship of EI Power, Inc. to
each exempt wholesale generator in which it holds an interest.
I - Financial Statements of Brooklyn Energy, Limited Partnership for 1994
- filed pursuant to request for confidential treatment.
-58-
<PAGE>
SIGNATURE
The undersigned system company has duly caused this annual report to be
signed on its behalf by the undersigned thereunto duly authorized pursuant to
the requirements of the Public Utility Holding Company Act of 1935.
GENERAL PUBLIC UTILITIES CORPORATION
April 26, 1995
By /s/ F. A. Donofrio
F. A. Donofrio, Vice President
and Comptroller
-59-
<PAGE>
Exhibit B-13
ARTICLES OF INCORPORATION
OF
NORTH CANADIAN POWER INCORPORATED
I.
The name of this Corporation is NORTH CANADIAN POWER
INCORPORATED.
II.
The purpose of this Corporation is to engage in any
lawful act or activity for which a Corporation may be organized
under the General Corporation Law of California other than the
banking business, the trust company business or the practice of a
profession permitted to be incorporated by the California
Corporations Code.
III.
The name and address in the State of California of this
Corporation's initial agent for service of process is:
Kenneth R. Bander, Esq.
c/o BROBECK, PHLEGER & HARRISON
444 South Flower Street, Suite 4300
Los Angeles, CA 90017
IV.
This Corporation is authorized to issue only one class
of shares of stock, designated "common". The total number of
shares which this Corporation is authorized to issue is 10,000.
V.
The liability of the directors of this Corporation for
monetary damages shall be eliminated to the fullest extent
permissible under California law. This Corporation is authorized
to provide indemnification of agents (as defined in Section 317
of the Corporations Code) for breach of duty to this Corporation
<PAGE>
and its shareholders through By-Law provisions or through
agreements with the agents, or both, in excess of the
indemnification otherwise permitted by Section 317 of the
Corporation Code, subject to the limits on such excess
indemnification set forth in Section 204 of the Corporations
Code.
IN WITNESS WHEREOF, the undersigned has executed these
Articles of Incorporation as of November 20, 1990.
Sole Incorporator
I declare that I am the person who executed the
foregoing Articles of Incorporation and said instrument is my act
and deed.
Executed as of November 21, 1989, at Los Angeles,
California.
<PAGE>
Exhibit B-14
UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS OF
NORTH CANADIAN POWER INCORPORATED
The undersigned, being all of the directors of NORTH
CANADIAN POWER INCORPORATED, a California Corporation, acting
pursuant to Section 307(b) of the California General Corporation
Law, do hereby consent to, approve and adopt the following
resolutions:
RESOLVED, the Article FIRST of the Articles of
Incorporation of this Corporation be amended to read as
follows:
"FIRST: The name of the Corporation is NCP Energy,
Inc."
FURTHER RESOLVED, that the foregoing amendment be
submitted to the sole stockholder of this Corporation for
its approval thereof and, upon written consent, the proper
officers of this Corporation be and they hereby are
authorized and directed to execute such documents as they
may deem necessary to effectuate said amendment.
Dated: May 18, 1994
Barry D. Cochrane Donald D. McKechnie
George V. Kenda D. K. Bruce Fenwich
Gordon B. Singer<PAGE>
Exhibit B-15
CERTIFICATE OF INCORPORATION
OF
NCP LAKE POWER INCORPORATED
1. The name of the corporation is:
NCP LAKE POWER INCORPORATED
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted
or promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law
of Delaware.
4. The total number of shares of common stock which the
corporation shall have authority to issue is One Thousand (1,000)
and the par value of each of such shares is One Cent ($.01)
amounting in the aggregate to Ten Dollars ($10.00).
5. The board of directors is authorized to make, alter or
repeal the by-laws of the corporation. Election of directors
need not be by written ballot.
6. The name and mailing address of the incorporator is:
V. A. Brookens
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
7. If the Delaware General Corporation Law is hereafter
amended to authorize, with the approval of a corporation's
stockholders, further reductions in the liability of the
corporation's directors for breach of fiduciary duty, then a
Director of the corporation shall not be liable for any such
breach to the fullest extent permitted by the Delaware General
Corporation Law as so amended. Any repeal of or modification of
this Article 7 by the stockholders of the Corporation shall not
adversely affect any right or protection of a Director of the
Corporation existing at the time of such repeal.
I, THE UNDERSIGNED, being the incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the
General Corporation Law of Delaware, do make this certificate,
hereby declaring and certifying that this is my act and deed and
the facts herein stated are true, and accordingly have hereunto
set my hand this 23rd day of May, 1991.
V. A. Brookens
V. A. Brookens<PAGE>
Exhibit B-16
CERTIFICATE OF INCORPORATION
OF
NCP GEM INCORPORATED
1. The name of the corporation is:
NCP GEM INCORPORATED
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted
or promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law
of Delaware.
4. The total number of shares of common stock which the
corporation shall have authority to issue is One Thousand (1,000)
and the par value of each of such shares is One Cent ($.01)
amounting in the aggregate to Ten Dollars ($10.00).
5. The board of directors is authorized to make, alter or
repeal the by-laws of the corporation. Election of directors
need not be by written ballot.
6. The name and mailing address of the incorporator is:
V. A. Brookens
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
7. If the Delaware General Corporation Law is hereafter
amended to authorize, with the approval of a corporation's
stockholders, further reductions in the liability of the
corporation's directors for breach of fiduciary duty, then a
Director of the corporation shall not be liable for any such
breach to the fullest extent permitted by the Delaware General
Corporation Law as so amended. Any repeal of or modification of
this Article 7 by the stockholders of the Corporation shall not
adversely affect any right or protection of a Director of the
Corporation existing at the time of such repeal.
I, THE UNDERSIGNED, being the incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the
General Corporation Law of Delaware, do make this certificate,
hereby declaring and certifying that this is my act and deed and
the facts herein stated are true, and accordingly have hereunto
set my hand this 23rd day of May, 1991.
V. A. Brookens
V. A. Brookens<PAGE>
Exhibit B-17
CERTIFICATE OF INCORPORATION
OF
UMATILLA GROVES INCORPORATED
1. The name of the corporation is UMATILLA GROVES
INCORPORATED (hereinafter called the "Corporation").
2. The address of the registered office of the Corporation
in the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the registered
agent of the Corporation at such address is the Corporation Trust
Company.
3. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The duration of the Corporation shall be perpetual.
5. The total number of shares of stock which the
Corporation shall have authority to issue is One Thousand
(1,000), all of which are without par value. All such shares are
of one class and are shares of common stock.
6. The name and mailing address of the incorporator is:
Jeffrey L. Quillen
1850 K Street, N.W.
Suite 500
Washington, DC 20006
7. A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which
the director derived any improper personal benefit. If the
Delaware General Corporation Law is amended after the date of the
filing of this Certificate to Authorize corporate action further
eliminating or limiting the personal liability of directors, then
the liability of a director of the corporation shall be
eliminated or limited to the fullest extent permitted by the
Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing provision by the
stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at
the time of such repeal or modification.
-1-<PAGE>
8. Except as required in the By-Laws, no election of
directors need be by written ballot.
9. The directors shall have the power to make, alter, or
repeal the By-Laws subject to the power of the stockholders to
alter or repeal the By-Laws made or altered by the directors.
I, THE UNDERSIGNED, being the incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the
General Corporation Law of Delaware, do make this certificate,
hereby declaring and certifying that this is my act and deed and
the facts herein stated are true, and accordingly have hereunto
set my hand this 17th day of June, 1992.
Jeffrey L. Quillen
Incorporator
-2-<PAGE>
Exhibit B-18
CERTIFICATE OF INCORPORATION
OF
NCP DADE POWER INCORPORATED
1. The name of the corporation is:
NCP DADE POWER INCORPORATED
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted
or promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law
of Delaware.
4. The total number of shares of common stock which the
corporation shall have authority to issue is One Thousand (1,000)
and the par value of each of such shares is One Cent ($.01)
amounting in the aggregate to Ten Dollars ($10.00).
5. The board of directors is authorized to make, alter or
repeal the by-laws of the corporation. Election of directors
need not be by written ballot.
6. The name and mailing address of the incorporator is:
M. C. Kinnamon
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
7. If the Delaware General Corporation Law is hereafter
amended to authorize, with the approval of a corporation's
stockholders, further reductions in the liability of the
corporation's directors for breach of fiduciary duty, then a
Director of the corporation shall not be liable for any such
breach to the fullest extent permitted by the Delaware General
Corporation Law as so amended. Any repeal of or modification of
this Article 7 by the stockholders of the Corporation shall not
adversely affect any right or protection of a Director of the
Corporation existing at the time of such repeal.
I, THE UNDERSIGNED, being the incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the
General Corporation Law of Delaware, do make this certificate,
hereby declaring and certifying that this is my act and deed and
the facts herein stated are true, and accordingly have hereunto
set my hand this 23rd day of May, 1991.
M. C. Kinnamon
M. C. Kinnamon<PAGE>
Exhibit B-19
CERTIFICATE OF INCORPORATION
OF
NCP PASCO INCORPORATED
1. The name of the corporation is:
NCP PASCO INCORPORATED
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted
or promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law
of Delaware.
4. The total number of shares of common stock which the
corporation shall have authority to issue is One Thousand (1,000)
and the par value of each of such shares is One Cent ($.01)
amounting in the aggregate to Ten Dollars ($10.00).
5. The board of directors is authorized to make, alter or
repeal the by-laws of the corporation. Election of directors
need not be by written ballot.
6. The name and mailing address of the incorporator is:
M. C. Kinnamon
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
7. If the Delaware General Corporation Law is hereafter
amended to authorize, with the approval of a corporation's
stockholders, further reductions in the liability of the
corporation's directors for breach of fiduciary duty, then a
Director of the corporation shall not be liable for any such
breach to the fullest extent permitted by the Delaware General
Corporation Law as so amended. Any repeal of or modification of
this Article 7 by the stockholders of the Corporation shall not
adversely affect any right or protection of a Director of the
Corporation existing at the time of such repeal.
I, THE UNDERSIGNED, being the incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the
General Corporation Law of Delaware, do make this certificate,
hereby declaring and certifying that this is my act and deed and
the facts herein stated are true, and accordingly have hereunto
set my hand this 23rd day of May, 1991.
M. C. Kinnamon
M. C. Kinnamon<PAGE>
Exhibit B-20
ARTICLES OF INCORPORATION
OF
ADA MANAGEMENT CORPORATION
I.
The name of this Corporation is ADA MANAGEMENT
CORPORATION.
II.
The purpose of this Corporation is to engage in any
lawful act or activity for which a corporation may be organized
under the General Corporation Law of California other than the
banking business, the trust company business or the practice of a
profession permitted to be incorporated by the California
Corporations Code.
III.
The name and address in the State of California of this
Corporation's initial agent for service of process is:
Kenneth R. Bander, Esq.
c/o BROBECK, PHLEGER & HARRISON
444 South Flower Street, Suite 4300
Los Angeles, CA 90017
IV.
This Corporation is authorized to issue only one class
of shares of stock, designated "common". The total number of
shares which this Corporation is authorized to issue is 10,000.
V.
The liability of the directors of this Corporation for
monetary damages shall be eliminated to the fullest extent
permissible under California law. This Corporation is authorized
to provide indemnification of agents (as defined in Section 317
of the Corporations Code) for breach of duty to this Corporation
and its shareholders through By-Law provisions or through
agreements with the agents, or both, in excess of the<PAGE>
indemnification otherwise permitted by Section 317 of the
Corporation Code, subject to the limits on such excess
indemnification set forth in Section 304 of the Corporations
Code.
IN WITNESS WHEREOF, the undersigned has executed these
Articles of Incorporation as of November 20, 1990.
Enriqueta K. Ramos
Sole Incorporator
I declare that I am the person who executed the
foregoing Articles of Incorporation and said instrument is my act
and deed.
Executed as of November 20, 1990, at Los Angeles,
California.
<PAGE>
Exhibit B-21
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
ADA MANAGEMENT CORPORATION
Jay R. Roland and James H. Shnell Certify that:
1. They are the president and secretary,
respectively, of Ada Management Corporation, a California
Corporation.
2. Article I of the articles of incorporation of the
Corporation is amended to read in its entirety as follows:
I.
The name of this Corporation is COMMERCE COGENERATION
CORPORATION.
3. The foregoing amendment of the articles of
incorporation has been duly approved by the board of directors of
the Corporation.
4. The foregoing amendment of the articles of
incorporation has been duly approved by the required vote to
shareholders in accordance with Section 902 of the Corporations
Code. the total number of outstanding shares of the Corporation
is 1,000. The number of shares voting in favor of the amendment
equaled or exceeded the vote required. The percentage vote
required was more than 50%.
We further declare under penalty of perjury under the
laws of the State of California that the matters set forth in
this certificate are true and correct of our own knowledge.
Date: October 4, 1992
Jay R. Roland, President
James H. Shnell, Secretary<PAGE>
Exhibit B-22
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
COMMERCE COGENERATION CORPORATION
(a California Corporation)
Donald D. McKechnie and James H. Shnell certify that:
1. They are the president and secretary,
respectively, of Commerce Cogeneration Corporation, a California
Corporation.
2. Article I of the articles of incorporation of the
Corporation is amended to read in its entirety as follows:
I.
The name of this Corporation is NCP ADA POWER
INCORPORATED.
3. The foregoing amendment of the articles of
incorporation has been duly approved by the board of directors of
the Corporation.
4. The foregoing amendment of the articles of
incorporation has been duly approved by the required vote to
shareholders in accordance with Section 902 of the Corporations
Code. the total number of outstanding shares of the Corporation
is 1,000. The number of shares voting in favor of the amendment
equaled or exceeded the vote required. The percentage vote
required was more than 50%.
We further declare under penalty of perjury under the
laws of the State of California that the matters set forth in
this certificate are true and correct of our own knowledge.
Date: July 31, 1993
Donald S. McKechnie, President
James H. Shnell, Secretary<PAGE>
Exhibit B-23
CERTIFICATE OF INCORPORATION
OF
NCP BROOKLYN POWER INCORPORATED
* * * * *
1. The name of the corporation is
NCP BROOKLYN POWER INCORPORATED
2. The address of its registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be
conducted or promoted is to engage in any lawful act or activity
for which corporations may be organized under the General
Corporation Law of Delaware.
4. The total number of shares of stock which the
corporation shall have authority to issue is one thousand (1,000)
and the par value of each of such shares is one cent ($0.01)
amounting in the aggregate to Ten Dollars ($10.00).
5A. The name and mailing address of each incorporator
is as follows:
NAME MAILING ADDRESS
J. L. Austin Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
Corporation Trust Center
M. C. Kinnamon 1209 Orange Street
Wilmington, Delaware 19801
P. J. Mesick Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
5B. The name and mailing address of each person who is
to serve as a director until the first annual meeting of the
stockholders or until a successor is elected and qualified, is as
follows:
NAME MAILING ADDRESS
Donald B. McKechnie 1551 N. Tustin Ave., Suite 900
Santa Ana, CA 92701
Richard F. Allen 1551 N. Tustin Ave., Suite 900
Santa Ana, CA 92701
Gregory B. Lawyer 1551 N. Tustin Ave., Suite 900
Santa Ana, CA 92701
1<PAGE>
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly
authorized to make, alter or repeal the by-laws of the
corporation.
8. Elections of directors need not be by written
ballot unless the by-laws of the corporation shall so provide.
9. Meetings of stockholders may be held within or
without the State of Delaware, as the by-laws may provide. The
books of the corporation may be kept (subject to any provision
contained in the statues) outside the State of Delaware at such
place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
10. A director of the corporation shall not be
personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director
except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174
of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived any improper personal
benefit.
WE, THE UNDERSIGNED, being each of the incorporators
hereinbefore named, for the purpose of forming a corporation
pursuant to the General Corporation Law of the State of Delaware,
do make this certificate, hereby declaring and certifying that
this is our act and deed and the facts herein stated are true,
and accordingly have hereunto set our hands this 9th day
of July , 1993.
J. L. Austin
M. C. Kinnamon
P. J. Mesick
2<PAGE>
Exhibit B-24
ARTICLES OF INCORPORATION
OF
TRIGEN POWER COMPANY
I.
The name of this Corporation is TRIGEN POWER COMPANY.
II.
The purpose of this Corporation is to engage in any
lawful act or activity for which a corporation may be organized
under the General Corporation Law of California other than the
banking business, the trust company business or the practice of a
profession permitted to be incorporated by the California
Corporations Code.
III.
The name and address in the State of California of this
Corporation's initial agent for service of process is:
Michael J. Ruffatto
2400 East Artesia Boulevard
Long Beach, CA 90805
IV.
This Corporation is authorized to issue only one class
of shares of stock, designated "common stock", the total number
of shares which this Corporation is authorized to issue is Ten
Thousand (10,000).
V.
The liability of the directors of the Corporation for
monetary damages shall be eliminated to the fullest extent
permissible under California law.
VI.
This Corporation is authorized to provide indemnification of
agents (as defined in Section 317 of the Corporations Code) for
breach of duty to the Corporation and its shareholders through
By-Law provisions or through agreements with the agents, or both,<PAGE>
in excess of the indemnification otherwise permitted by Section
317 of the Corporation Code, subject to the limits on such excess
indemnification set forth in Section 204 of the California
Corporations Code.
Dated: December 23, 1988
Joanne K. Zern
Sole Incorporator<PAGE>
Exhibit B-25
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
TRIGEN POWER COMPANY
Jay R. Roland and James H. Shnell Certify that:
1. They are the president and secretary,
respectively, of Trigen Power Company, a California Corporation.
2. Article I of the articles of incorporation of the
Corporation is amended to read in its entirety as follows:
I.
The name of this Corporation is ADA POWER COMPANY.
3. The foregoing amendment of the articles of
incorporation has been duly approved by the board of directors of
the Corporation.
4. The foregoing amendment of the articles of
incorporation has been duly approved by the required vote to
shareholders in accordance with Section 902 of the Corporations
Code. the total number of outstanding shares of the Corporation
is 100. The number of shares voting in favor of the amendment
equaled or exceeded the vote required. The percentage vote
required was more than 50%.
We further declare under penalty of perjury under the laws
of the State of California that the matters set forth in this
certificate are true and correct of our own knowledge.
Date: February 21, 1991
Jay R. Roland, President
James H. Shnell, Secretary<PAGE>
Exhibit B-26
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
ADA POWER COMPANY
(a California Corporation)
Donald D. McKechnie and James H. Shnell Certify that:
1. They are the president and secretary,
respectively, of Ada Power Company, a California Corporation.
2. Article I of the articles of incorporation of the
Corporation is amended to read in its entirety as follows:
I.
The name of this Corporation is NCP COMMERCE POWER
INCORPORATED.
3. The foregoing amendment of the articles of
incorporation has been duly approved by the board of directors of
the Corporation.
4. The foregoing amendment of the articles of
incorporation has been duly approved by the required vote to
shareholders in accordance with Section 902 of the Corporations
Code. the total number of outstanding shares of the Corporation
is 100. The number of shares voting in favor of the amendment
equaled or exceeded the vote required. The percentage vote
required was more than 50%.
We further declare under penalty of perjury under the laws
of the State of California that the matters set forth in this
certificate are true and correct of our own knowledge.
Date: August 31, 1993
Donald D. McKechnie, President
James H. Shnell, Secretary<PAGE>
Exhibit B-27
CERTIFICATE OF INCORPORATION
OF
NCP HOUSTON POWER INCORPORATED
1. The name of the corporation is NCP HOUSTON POWER
INCORPORATED (hereinafter called the "Corporation").
2. The address of the registered office of the Corporation
in the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the registered
agent of the Corporation at such address is the Corporation Trust
Company.
3. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The duration of the Corporation shall be perpetual.
5. The total number of shares of stock which the
Corporation shall have authority to issue is One Thousand
(1,000), all of which are without par value. All such shares are
of one class and are shares of common stock.
6. The name and mailing address of the incorporator is:
Charles Friedlander
1850 K Street, N.W.
Suite 500
Washington, DC 20006
7. A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which
the director derived any improper personal benefit. If the
Delaware General Corporation Law is amended after the date of the
filing of this Certificate to Authorize corporate action further
eliminating or limiting the personal liability of directors, then
the liability of a director of the corporation shall be
eliminated or limited to the fullest extent permitted by the
Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing provision by the
stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at
the time of such repeal or modification.
-1-<PAGE>
8. Except as required in the By-Laws, no election of
directors need be by written ballot.
9. The directors shall have the power to make, alter, or
repeal the By-Laws subject to the power of the stockholders to
alter or repeal the By-Laws made or altered by the directors.
I, THE UNDERSIGNED, being the incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the
General Corporation Law of Delaware, do make this certificate,
hereby declaring and certifying that this is my act and deed and
the facts herein stated are true, and accordingly have hereunto
set my hand this 1st day of December, 1993.
Charles Friedlander
Incorporator
-2-<PAGE>
Exhibit B-28
CERTIFICATE OF INCORPORATION
OF
NCP PERRY INCORPORATED
1. The name of the corporation is NCP PERRY INCORPORATED
(hereinafter called the "Corporation").
2. The address of the registered office of the Corporation
in the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the registered
agent of the Corporation at such address is the Corporation Trust
Company.
3. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The duration of the Corporation shall be perpetual.
5. The total number of shares of stock which the
Corporation shall have authority to issue is One Thousand
(1,000), all of which are without par value. All such shares are
of one class and are shares of common stock.
6. The name and mailing address of the incorporator is:
Charles Friedlander
1850 K Street, N.W.
Suite 500
Washington, DC 20006
7. A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which
the director derived any improper personal benefit. If the
Delaware General Corporation Law is amended after the date of the
filing of this Certificate to Authorize corporate action further
eliminating or limiting the personal liability of directors, then
the liability of a director of the corporation shall be
eliminated or limited to the fullest extent permitted by the
Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing provision by the
stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at
the time of such repeal or modification.
-1-
8. Except as required in the By-Laws, no election of<PAGE>
directors need be by written ballot.
9. The directors shall have the power to make, alter, or
repeal the By-Laws subject to the power of the stockholders to
alter or repeal the By-Laws made or altered by the directors.
I, THE UNDERSIGNED, being the incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the
General Corporation Law of Delaware, do make this certificate,
hereby declaring and certifying that this is my act and deed and
the facts herein stated are true, and accordingly have hereunto
set my hand this 1st day of December, 1993.
Charles Friedlander
Incorporator
-2-<PAGE>
Exhibit B-29
CERTIFICATE OF INCORPORATION
OF
NCP NEW YORK INCORPORATED
* * * * *
1. The name of the corporation is
NCP NEW YORK INCORPORATED
2. The address of its registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be
conducted or promoted is to engage in any lawful act or activity
for which corporations may be organized under the General
Corporation Law of Delaware.
4. The total number of shares of stock which the
corporation shall have authority to issue is one thousand (1,000)
and the par value of each of such shares is one cent ($0.01)
amounting in the aggregate to Ten Dollars ($10.00).
5A. The name and mailing address of each incorporator
is as follows:
NAME MAILING ADDRESS
J. L. Austin Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
Corporation Trust Center
M. C. Kinnamon 1209 Orange Street
Wilmington, Delaware 19801
M. A. Humphrey Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
5B. The name and mailing address of each person who is
to serve as a director until the first annual meeting of the
stockholders or until a successor is elected and qualified, is as
follows:
NAME MAILING ADDRESS
Donald B. McKechnie 1551 N. Tustin Ave., Suite 900
Santa Ana, CA 92701
Robert G. Surette 1551 N. Tustin Ave., Suite 900
Santa Ana, CA 92701
James H. Shnell 1551 N. Tustin Ave., Suite 900
Santa Ana, CA 92701
1<PAGE>
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly
authorized to make, alter or repeal the by-laws of the
corporation.
8. Elections of directors need not be by written
ballot unless the by-laws of the corporation shall so provide.
9. Meetings of stockholders may be held within or
without the State of Delaware, as the by-laws may provide. The
books of the corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such
place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
10. A director of the corporation shall not be
personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director
except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174
of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived any improper personal
benefit.
WE, THE UNDERSIGNED, being each of the incorporators
hereinbefore named, for the purpose of forming a corporation
pursuant to the General Corporation Law of the State of Delaware,
do make this certificate, hereby declaring and certifying that
this is our act and deed and the facts herein stated are true,
and accordingly have hereunto set our hands this 9th day
of July , 1993.
J. L. Austin
M. C. Kinnamon
M. A. Humphrey
2<PAGE>
Exhibit B-30
CERTIFICATE OF INCORPORATION
OF
EI SELKIRK, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is EI Selkirk, Inc.
SECOND: The address, including street, number, city and
county, of the registered office of the corporation in the State
of Delaware is 32 Loockerman Square, Suite L-100, City of Dover,
County of Kent; and the name of the registered agent of the
corporation in the the State of Delaware at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is one hundred (100)
shares, all of which are without par value. All such shares are
of one class and are shares of Common Stock.
FIFTH: The name and the mailing address of the incorporator
are as follows:
NAME MAILING ADDRESS
Thomas A. Scott c/o Berlack, Israels & Liberman
120 West 45th Street
New York, New York 10036
SIXTH: The board of directors of the corporation is
expressly authorized to adopt, amend or repeal by-laws of the
corporation.
SEVENTH: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted
by paragraph (7) of subsection (b) of Section 102 of the General
Corporation Law of the State of Delaware, as the same may be
amended and supplemented.<PAGE>
EIGHTH: As of the date hereof, the corporation has received
no payment for any of its stock.
IN WITNESS WHEREOF, I have hereunto set my hand this 31st
day of October, 1994.
Thomas A. Scott,
Sole Incorporator <PAGE>
Exhibit B-31
IN THE MATTER OF the COMPANIES ACT, Chapter 81,
R.S.N.S. 1989, as amended
MEMORANDUM OF ASSOCIATION OF 2322133 NOVA SCOTIA LIMITED
1 - The name of the Company is 2322133 Nova Scotia Limited.
2 - There are no restrictions on the objects and powers of the Company.
3 - Pursuant to subsection (11) of Section 26 of the Companies Act, to the
intent that subsection (9) of Section 26 not apply to the Company, the
following powers hereby expressly conferred upon the Company:
The Company shall have the power to
(a) sell or dispose of its undertaking or a substantial part
thereof;
(b) subject to the provisions of the Act with respect to
reduction of capital, distribute any of its property in
specie among its members; and
(c) amalgamate with any company or other body of persons.
4 - The liability of the members is limited.
5 - The capital of the Company is Fifty Thousand (50,000) common or ordinary
shares without any nominal or par value with power to divide the shares
in the capital for the time being into several classes or to attach
thereto respectively any preferential, common, deferred, or qualified
rights, privileges or conditions, including restrictions on voting and
including redemption, purchase or other acquisition of those shares,
subject however to the provisions of the Companies Act and amendments
thereto.
6 - I, the undersigned, whose name and address are subscribed, am desirous
of being formed into a company, in pursuance of this Memorandum of
Association, and I agree to take the number and kind of shares in the
capital stock of the Company set opposite my name.
NAME, ADDRESS AND OCCUPATION NUMBER AND KIND OF SHARES
OF SUBSCRIBER TAKEN BY SUBSCRIBER
Robert L. Mellish
<PAGE>
TOTAL SHARES TAKEN: One
DATED on December 22, 1993.
WITNESS to the above signature:
NOTE: Each subscriber must write his name, his full post office address, and
his occupation, all in his own handwriting. Each subscriber must write, in
words, and in his own handwriting, the number of shares he takes.
<PAGE>
Exhibit B-32
No. 2322133
PROVINCE OF NOVA SCOTIA
I Hereby Certify that
2322133 NOVA SCOTIA LIMITED, incorporated under the Companies Act
of Nova Scotia on the twenty-third day of December, 1993, has,
with the approval of the Registrar of Joint Stock Companies dated
the seventeenth day of February, 1994, changed its name to EI
CANADA HOLDING LIMITED, said change to take effect the
seventeenth day of February, 1994, and that the said company is
limited.
GIVEN under my hand and
seal of office at the City of Halifax, in the Province of Nova
Scotia, this seventeenth day of February one thousand nine
hundred and ninety-four.
REGISTRAR OF JOINT STOCK
COMPANIES<PAGE>
Exhibit B-33
IN THE MATTER OF the COMPANIES ACT, Chapter 81,
R.S.N.S. 1989, as amended
MEMORANDUM OF ASSOCIATION OF 2322117 NOVA SCOTIA LIMITED
1 - The name of the Company is 2322117 Nova Scotia Limited.
2 - There are no restrictions on the objects and powers of the Company.
3 - Pursuant to subsection (11) of Section 26 of the Companies Act, to the
intent that subsection (9) of Section 26 not apply to the Company, the
following powers hereby expressly conferred upon the Company:
The Company shall have the power to
(a) sell or dispose of its undertaking or a substantial part
thereof;
(b) subject to the provisions of the Act with respect to
reduction of capital, distribute any of its property in
specie among its members; and
(c) amalgamate with any company or other body of persons.
4 - The liability of the members is limited.
5 - The capital of the Company is Fifty Thousand (50,000) common or ordinary
shares without any nominal or par value with power to divide the shares
in the capital for the time being into several classes or to attach
thereto respectively any preferential, common, deferred, or qualified
rights, privileges or conditions, including restrictions on voting and
including redemption, purchase or other acquisition of those shares,
subject however to the provisions of the Companies Act and amendments
thereto.
6 - I, the undersigned, whose name and address are subscribed, am desirous
of being formed into a company, in pursuance of this Memorandum of
Association, and I agree to take the number and kind of shares in the
capital stock of the Company set opposite my name.
NAME, ADDRESS AND OCCUPATION NUMBER AND KIND OF SHARES
OF SUBSCRIBER TAKEN BY SUBSCRIBER
Robert L. Mellish
<PAGE>
TOTAL SHARES TAKEN: One
DATED on December 22, 1993.
WITNESS to the above signature:
NOTE: Each subscriber must write his name, his full post office address, and
his occupation, all in his own handwriting. Each subscriber must write, in
words, and in his own handwriting, the number of shares he takes.
<PAGE>
Exhibit B-34
No. 2322117
PROVINCE OF NOVA SCOTIA
I Hereby Certify that
2322117 NOVA SCOTIA LIMITED, incorporated under the Companies Act
of Nova Scotia on the twenty-third day of December, 1993, has,
with the approval of the Registrar of Joint Stock Companies dated
the seventeenth day of February, 1994, changed its name to EI
BROOKLYN POWER LIMITED, said change to take effect the
seventeenth day of February, 1994, and that the said company is
limited.
GIVEN under my hand and
seal of office at the City of Halifax, in the Province of Nova
Scotia, this seventeenth day of February one thousand nine
hundred and ninety-four.
REGISTRAR OF JOINT STOCK
COMPANIES<PAGE>
Exhibit B-35
IN THE MATTER OF the COMPANIES ACT, Chapter 81,
R.S.N.S. 1989, as amended
MEMORANDUM OF ASSOCIATION OF 2322120 NOVA SCOTIA LIMITED
1 - The name of the Company is 2322120 Nova Scotia Limited.
2 - There are no restrictions on the objects and powers of the Company.
3 - Pursuant to subsection (11) of Section 26 of the Companies Act, to the
intent that subsection (9) of Section 26 not apply to the Company, the
following powers hereby expressly conferred upon the Company:
The Company shall have the power to
(a) sell or dispose of its undertaking or a substantial part
thereof;
(b) subject to the provisions of the Act with respect to
reduction of capital, distribute any of its property in
specie among its members; and
(c) amalgamate with any company or other body of persons.
4 - The liability of the members is limited.
5 - The capital of the Company is Fifty Thousand (50,000) common or ordinary
shares without any nominal or par value with power to divide the shares
in the capital for the time being into several classes or to attach
thereto respectively any preferential, common, deferred, or qualified
rights, privileges or conditions, including restrictions on voting and
including redemption, purchase or other acquisition of those shares,
subject however to the provisions of the Companies Act and amendments
thereto.
6 - I, the undersigned, whose name and address are subscribed, am desirous
of being formed into a company, in pursuance of this Memorandum of
Association, and I agree to take the number and kind of shares in the
capital stock of the Company set opposite my name.
NAME, ADDRESS AND OCCUPATION NUMBER AND KIND OF SHARES
OF SUBSCRIBER TAKEN BY SUBSCRIBER
Robert L. Mellish
<PAGE>
TOTAL SHARES TAKEN: One
DATED on December 22, 1993.
WITNESS to the above signature:
NOTE: Each subscriber must write his name, his full post office address, and
his occupation, all in his own handwriting. Each subscriber must write, in
words, and in his own handwriting, the number of shares he takes.
<PAGE>
Exhibit B-36
No. 2322120
PROVINCE OF NOVA SCOTIA
I Hereby Certify that
2322120 NOVA SCOTIA LIMITED, incorporated under the Companies Act
of Nova Scotia on the twenty-third day of December, 1993, has,
with the approval of the Registrar of Joint Stock Companies dated
the seventeenth day of February, 1994, changed its name to EI
SERVICES CANADA LIMITED, said change to take effect the
seventeenth day of February, 1994, and that the said company is
limited.
GIVEN under my hand and
seal of office at the City of Halifax, in the Province of Nova
Scotia, this seventeenth day of February one thousand nine
hundred and ninety-four.
REGISTRAR OF JOINT STOCK
COMPANIES<PAGE>
Exhibit B-37
IN THE MATTER OF
THE COMPANIES ACT
MEMORANDUM OF ASSOCIATION
1. The name of the Company is 2285241 Nova Scotia Limited.
2. There are no restrictions on the objects and powers of the
Company.
3. Pursuant to subsection (11) of Section 26 of the Companies
Act, with the intention that subsection (9) of Section 26
not apply to the Company, the following powers are hereby
expressly conferred upon the Company:
The Company shall have the power to:
(a) sell or dispose of its undertaking or a substantial
part thereof;
(b) subject to the provisions of the Act with respect to
reduction of capital, distribute any of its property in
specie among its members; and
(c) amalgamate with any company or other body of persons.
4. The liability of the members is limited.
5. The authorized capital of the Company consists of one
hundred thousand (100,000) common shares without nominal or
par value with power to divide the capital for the time
being into several classes and/or attach thereto
respectively any preferential, common, deferred or qualified
rights, privileges or conditions, including restrictions on
voting rights and including redemption and purchase of such
shares subject, however, to the provisions of The Companies
Act and amendments thereto.
I, the undersigned subscriber, whose name and address is
subscribed, am desirous of being formed into a company in
pursuance of this Memorandum of Association and agree to take the
number and kind of shares in the capital stock of the Company set
opposite my name.<PAGE>
NAME ADDRESS AND NUMBER AND KIND
OCCUPATION OF OF SHARES TAKEN
SUBSCRIBER BY SUBSCRIBER
Carol A. Richard 1600-5151 George St. One (1)
Halifax, NS Common
B3J 2N9
Legal Assistant
TOTAL SHARES TAKEN: One (1).
DATED this 3rd day of March, 1994.
Genny Hussey
(Witness)
1600-5151 George St.
Halifax, Nova Scotia
B3J 2N9
-2-
<PAGE>
Exhibit B-38
2285241 NOVA SCOTIA LIMITED
SHAREHOLDERS' RESOLUTION IN WRITING
1. BE IT RESOLVED that, subject to the approval of the
Registrar of Joint Stock Companies, the Company does change its
name from 2285241 NOVA SCOTIA LIMITED to EI BROOKLYN INVESTMENTS
LIMITED.
2. BE IT RESOLVED that the Secretary of the Company is
hereby authorized and empowered to do all such matters and things
and to execute and deliver all such documents as are necessary to
give effect to this Special Resolution.
DATED at Parsippany, New Jersey, this 7th day of April
1995.
2285241 NOVA SCOTIA LIMITED
PER:_____________________________
Bruce L. Levy, President<PAGE>
Exhibit B-39
THE COMPANIES LAW
COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION OF
EI CAYMAN
1. The name of the Company is: EI CAYMAN
2. The Registered Office of the Company will be situate at:
FIDUCIARY TRUST (CAYMAN) LIMITED, P. O. Box 1062, Third
Floor, First Home Tower, British American Centre, Dr. Roy
Drive, George Town, Grand Cayman, British West Indies.
3. The objects for which the Company is established are
unrestricted and the Company shall have full power and
authority to carry out any object not prohibited by any law
as provided by Section 6 (4) of the Companies Law, Cap. 22
as amended.
4. The Company shall have and be capable of exercising all of
the functions of a natural person of full capacity
irrespective of any question of corporate benefit as
provided by Section 26 (2) of The Companies Law, Cap. 22 as
amended.
5. Nothing in the preceding sections shall be deemed to permit
the Company to carry on the business of a Bank or Trust
Company without being licensed in that behalf under the
provisions of the Banks and Trust Companies Regulation Law
(Revised), or to carry on Insurance Business from within the
Cayman Islands or the business of an Insurance Manager,
Agent, Sub-agent or Broker without being licensed in that
behalf under the provisions of the Insurance Law 1979 (as
amended), or to carry on the business of Company Management
without being licensed in that behalf under the provisions
of the Companies Management Law, 1984.
6. The Company will not trade in the Cayman Islands with any
person, firm or corporation except in furtherance of the
business of the Company carried on outside the Cayman
Islands; Provided that nothing in this section shall be
construed so as to prevent the Company effecting and
concluding contracts in the Cayman Islands, and exercising
in the Cayman Islands all of its powers necessary for the
carrying on of its business outside the Cayman Islands.
7. The liability of the members is limited.
8. The capital of the Company is US$900,000.00 divided into
900,000 shares of a nominal or par value of US$1.00 each
provided always that subject to the provisions of The
Companies Law, Cap. 22 as amended and the Articles of
Association the Company shall have power to redeem or
purchase any or all of such shares and to sub-divide or
1
<PAGE>
consolidate the said shares or any of them and to issue all
or any part of its capital whether original, redeemed,
increased or reduced with or without any preference,
priority or special privilege or subject to any postponement
or rights or to any conditions or restrictions whatsoever
and so that unless the conditions of issue shall otherwise
expressly provide every issue of shares whether stated to be
Ordinary, Preference or otherwise shall be subject to the
powers on the part of the Company hereinbefore provided.
The undersigned, whose name, address and description is
subscribed, is desirous of being formed into a Company in
pursuance of this Memorandum of Association, and agrees to take
the number of shares in the capital of the Company set opposite
his name.
-----------------------------------------------------------------
NAME, ADDRESS & DESCRIPTION NUMBER OF SHARES
OF SUBSCRIBER TAKEN BY SUBSCRIBER
-----------------------------------------------------------------
Keith M. High 1
P.O. Box 1062
George Town
Grand Cayman
Banker
Dated this 16th day of June, 1993
Witness to the above signatures
Susan Wilson
PO Box 1062
Grand Cayman
I, DELANO 0. SOLOMON
Registrar of Companies in and
for the Cayman Islands DO HEREBY
CERTIFY that this is a true copy
of the Articles of Association of
EI CAYMAN duly registered on
17th of June 1993
Registrar of Companies
2<PAGE>
Exhibit B-41
CERTIFICATE OF INCORPORATION
OF
EI POWER, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is EI Power, Inc.
SECOND: The address, including street, number, city and county, of the
registered office of the corporation in the State of Delaware is 32 Loockerman
Square, Suite L-100, City of Dover, County of Kent; and the name of the
registered agent of the corporation in the State of Delaware at such address
is The Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is one hundred (100) shares, all of which are without
par value. All such shares are of one class and are shares of Common Stock.
FIFTH: the name of the mailing address of the incorporator are as
follows:
NAME MAILING ADDRESS
Douglas E. Davidson, Esq. c/o Berlack, Israels & Liberman
120 West 45th Street
New York, New York 10036
SIXTH: The corporation is to have perpetual existence.
SEVENTH: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of
subsection (b) of 102 of the General Corporation Law of the State of Delaware,
as the same may be amended and supplemented.
EIGHTH: From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and
all rights at any time conferred upon the stockholders of the corporation by
this Certificate of Incorporation are granted subject to the provisions of
this Article EIGHTH.
NINTH: As of the date hereof, the corporation has received no payment
<PAGE>
for any of its stock.
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of March,
1994.
Douglas E. Davidson,
Sole Incorporator
<PAGE>
Exhibit B-45
CERTIFICATE OF INCORPORATION
OF
EI POWER (CHINA), INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is EI Power (China), Inc.
SECOND: The address, including street, number, city and
county, of the registered office of the corporation in the State
of Delaware is 32 Loockerman Square, Suite L-100, City of Dover,
County of Kent; and the name of the registered agent of the
corporation in the State of Delaware at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is one hundred (100)
shares, all of which are without par value. All such shares are
of one class and are shares of Common Stock.
FIFTH: The name and the mailing address of the incorporator
are as follows:
NAME MAILING ADDRESS
Thomas A. Scott c/o Berlack, Israels & Liberman
120 West 45th Street
New York, New York 10036
SIXTH: The corporation is to have perpetual existence.
SEVENTH: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted
by paragraph (7) of subsection (b) of Section 102 of the General
Corporation Law of the State of Delaware, as the same may be
amended and supplemented.<PAGE>
EIGHTH: From time to time any of the provisions of this
Certificate of Incorporation may be amended, altered or repealed,
and other provisions authorized by the laws of the state of
Delaware at the time in force may be added or inserted in the
manner and at the time prescribed by said laws, and all rights at
any time conferred upon the stockholders of the corporation of
this Certificate of Incorporation are granted subject to the
provisions of this Article EIGHTH.
NINTH: As of the date hereof, the corporation has received
no payment for any of its stock.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th
day of September, 1994.
Thomas A. Scott,
Sole Incorporator <PAGE>
Exhibit B-46
CERTIFICATE OF INCORPORATION
OF
EI POWER (CHINA) I, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is EI Power (China) I, Inc.
SECOND: The address, including street, number, city and
county, of the registered office of the corporation in the State
of Delaware is 32 Loockerman Square, Suite L-100, City of Dover,
County of Kent; and the name of the registered agent of the
corporation in the State of Delaware at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is one hundred (100)
shares, all of which are without par value. All such shares are
of one class and are shares of Common Stock.
FIFTH: The name and the mailing address of the incorporator
are as follows:
NAME MAILING ADDRESS
Thomas A. Scott c/o Berlack, Israels & Liberman
120 West 45th Street
New York, New York 10036
SIXTH: The corporation is to have perpetual existence.
SEVENTH: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted
by paragraph (7) of subsection (b) of Section 102 of the General
Corporation Law of the State of Delaware, as the same may be
amended and supplemented.<PAGE>
EIGHTH: From time to time any of the provisions of this
Certificate of Incorporation may be amended, altered or repealed,
and other provisions authorized by the laws of the state of
Delaware at the time in force may be added or inserted in the
manner and at the time prescribed by said laws, and all rights at
any time conferred upon the stockholders of the corporation of
this Certificate of Incorporation are granted subject to the
provisions of this Article EIGHTH.
NINTH: As of the date hereof, the corporation has received
no payment for any of its stock.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th
day of September, 1994.
Thomas A. Scott,
Sole Incorporator <PAGE>
Exhibit B-47
CERTIFICATE OF INCORPORATION
OF
EI POWER (CHINA) II, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is EI Power (China) II, Inc.
SECOND: The address, including street, number, city and
county, of the registered office of the corporation in the State
of Delaware is 32 Loockerman Square, Suite L-100, City of Dover,
County of Kent; and the name of the registered agent of the
corporation in the State of Delaware at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is one hundred (100)
shares, all of which are without par value. All such shares are
of one class and are shares of Common Stock.
FIFTH: The name and the mailing address of the incorporator
are as follows:
NAME MAILING ADDRESS
Thomas A. Scott c/o Berlack, Israels & Liberman
120 West 45th Street
New York, New York 10036
SIXTH: The corporation is to have perpetual existence.
SEVENTH: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted
by paragraph (7) of subsection (b) of Section 102 of the General
Corporation Law of the State of Delaware, as the same may be
amended and supplemented.<PAGE>
EIGHTH: From time to time any of the provisions of this
Certificate of Incorporation may be amended, altered or repealed,
and other provisions authorized by the laws of the state of
Delaware at the time in force may be added or inserted in the
manner and at the time prescribed by said laws, and all rights at
any time conferred upon the stockholders of the corporation of
this Certificate of Incorporation are granted subject to the
provisions of this Article EIGHTH.
NINTH: As of the date hereof, the corporation has received
no payment for any of its stock.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th
day of September, 1994.
Thomas A. Scott,
Sole Incorporator <PAGE>
Exhibit B-48
CERTIFICATE OF INCORPORATION
OF
EI POWER (CHINA) III, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is EI Power (China) III, Inc.
SECOND: The address, including street, number, city and
county, of the registered office of the corporation in the State
of Delaware is 32 Loockerman Square, Suite L-100, City of Dover,
County of Kent; and the name of the registered agent of the
corporation in the State of Delaware at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is one hundred (100)
shares, all of which are without par value. All such shares are
of one class and are shares of Common Stock.
FIFTH: The name and the mailing address of the incorporator
are as follows:
NAME MAILING ADDRESS
Thomas A. Scott c/o Berlack, Israels & Liberman
120 West 45th Street
New York, New York 10036
SIXTH: The corporation is to have perpetual existence.
SEVENTH: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted
by paragraph (7) of subsection (b) of Section 102 of the General
Corporation Law of the State of Delaware, as the same may be
amended and supplemented.<PAGE>
EIGHTH: From time to time any of the provisions of this
Certificate of Incorporation may be amended, altered or repealed,
and other provisions authorized by the laws of the state of
Delaware at the time in force may be added or inserted in the
manner and at the time prescribed by said laws, and all rights at
any time conferred upon the stockholders of the corporation of
this Certificate of Incorporation are granted subject to the
provisions of this Article EIGHTH.
NINTH: As of the date hereof, the corporation has received
no payment for any of its stock.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th
day of September, 1994.
Thomas A. Scott,
Sole Incorporator <PAGE>
Exhibit B-70
BYLAWS
OF
NORTH CANADIAN POWER INCORPORATED
ARTICLE I - OFFICES
1.01 Principal Office
The principal executive office of NORTH CANADIAN POWER,
INCORPORATED (the "Corporation") shall be at 1100 Towne & Country
Drive, Suite 800, in the City of Orange, County of Orange, State
of California.
1.02 Other Offices
The Corporation may also have offices at such other
places as the Board of Directors may from time to time designate,
or as the business of the Corporation may require.
ARTICLE II - SHAREHOLDER'S MEETINGS
2.01 Annual Meetings
The annual meeting of the shareholders of the Corporation
for the election of directors to succeed those whose terms expire
and for the transaction of such other business as may properly
come before the meetings shall be held each year on such date and
at such time as shall be fixed by the Board of Directors at the
principle office of the Corporation, or at such other place as
may be determined by the Board of Directors. If the annual
meeting of the shareholders be not held as herein prescribed, the
election of directors may be held at any meeting thereafter
called pursuant to these By-Laws.
2.02 Special Meetings
Special Meetings of the shareholders, for any purpose
whatsoever, unless otherwise prescribed by statute, may be called
at any time by the President, or by the Board of Directors, or by
one or more shareholders holding not less than ten percent (10%)
of the voting power of the Corporation.
2.03 Place
All meetings of the shareholders shall be at any place
within or without the State of California designated either by
the Board of Directors or by written consent of each person
entitled to vote thereat, signed either before of after the
meeting. In the absence of any such designation, shareholders
meetings shall be held at the principal executive office of the
Corporation.
2.04 Notice
Notice of meetings of the shareholders of the Corporation
shall be given in writing to each shareholder entitled to vote,
either personally or by first-class mail or telegraphic or other
-1-<PAGE>
means of written communication, charges prepaid, addressed to the
shareholder at his address appearing on the books of the
Corporation or given by the shareholder to the Corporation for
the purpose of notice. Notice of any such meeting of
shareholders shall be sent to each shareholder entitled thereto
not less than ten (10) nor more than sixty (60) days before the
date of the meeting. Said notice shall state the place, date and
hour of the meeting and, (1) in the case of a special meeting,
the general nature of the business to be transacted, and no other
such business may be transacted, or (2) in the case of annual
meetings, those matters which the Board of Directors, at the time
of the mailing of the notice, intends to present for action by
the shareholders. In the case of any meeting at which directors
are to be elected, the notice shall also state the names of the
nominees intended at the time of the mailing of the notice to be
presented by management for election.
Subject to this Section 2.04 and to Section 601(f) of the
California Corporations Code, any proper matter may be presented
at any meeting for action by the shareholders.
2.05 Adjournment of Meetings
Any shareholders' meeting may be adjourned from time to time
by the vote of the holders of a majority of the voting shares
present at the meeting either in person or by proxy. Notice of
any adjourned meeting need not be given if the time and place
thereof are announced at the meeting at which the adjournment is
taken, unless (i) a meeting is adjourned for forty-five (45) days
or more from the date of the original meeting or (ii) after the
adjournment a new record date is fixed for the adjourned meeting.
2.06 Quorum
The presence in person or by proxy of the persons entitled
to vote a majority of the shares entitled to vote at any meeting
constitutes a quorum for the transaction of business. The
shareholders present at a duly called or held meeting at which a
quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken
(other than adjournment) is approved by at least a majority of
the shares required to constitute a quorum.
In the absence of a quorum, any meeting of shareholders may
be adjourned from time to time by the vote of a majority of the
shares, represented either in person or by proxy, but no other
business may be transacted, except as provided above.
2.07 Consent to Shareholder Action
Except as provided below, any action which may be taken at
any meeting of shareholders may be taken without a meeting and
without prior notice, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding
shares having not less than the minimum number of votes that
-2-<PAGE>
would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and
voted. All such consents shall be filed with the Secretary of
the Corporation and shall be maintained in the corporate records.
Notwithstanding the foregoing, (1) unless the consents of
all shareholders entitled to vote have been solicited in writing,
notice of any shareholder approval without a meeting by less than
unanimous written consent shall be given as required under
Section 603(b) of the California Corporations Code, and (2)
subject to Section 305(b) of the California Corporations Code
regarding the filling of vacancies, directors may not be elected
by written consent except by unanimous written consent of all
shares entitled to vote for the election of directors.
Any written consent may be revoked by a writing received by
the Secretary of the Corporation prior to the time that written
consents of the number of shares required to authorize the
proposed action have been filed with the Secretary.
2.08 Wavier of Notice
The transactions of any meeting of shareholders, however
called and noticed, and wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice,
if a quorum is present either in person or by proxy, and if,
either before or after the meeting, each of the persons entitled
to vote, not present in person or by proxy, signs a written
waiver of notice, or a consent to the holding of the meeting, or
an approval of the minutes thereof. All such waivers, consents,
and approvals shall be filed with the corporate records or made a
part of the minutes of the meeting.
Attendance of a person at a meeting shall constitute a
waiver of notice of and presence at such meeting, except as
provided in Section 601(e) of the California Corporations Code.
Neither the business to be transacted at nor the purpose of
any regular or special meeting of shareholders need be specified
in any written waiver of notice, consent to the holding of the
meeting or approval of the minutes thereof, except as provided in
Section 601(f) of the California Corporations Code.
2.09 Voting
Every Shareholder of record shall be entitled at any meeting
of shareholders to one vote on each matter submitted to a vote of
the shareholders for every share of stock standing in such
shareholder's name on the books of the corporation and qualified
to vote. For all actions by the shareholders, the affirmative
vote of a majority of the number of issued and outstanding shares
of common stock shall be required unless the vote of a different
number of voting by classes is required hereunder or by the
Articles of Incorporation.
-3-<PAGE>
The voting at all meetings of shareholders need not be by
ballot, but any qualified shareholder before the voting begins
may demand a stock vote whereupon such stock vote shall be taken
by ballot, each of which shall state the name of the shareholder
voting and the number of shares voted by such shareholder, and if
such ballot be cast by a proxy, it shall also state the name of
such proxy.
2.10 Proxies
At any meeting of the shareholders, every shareholder having
the right to vote shall be entitled to vote in person, or by one
or more agents authorized by a written proxy subscribed by such
shareholder. No such proxy shall be valid after the expiration
of eleven (11) months from the date thereof unless otherwise
provided in the proxy. Every proxy continues in full force and
effect until revoked by the person executing it prior to the vote
pursuant thereto, except as otherwise provided in Section 705 of
the California Corporations Code, a proxy which states that it is
irrevocable and is held by a person specified in Section 705(e)
of the California Corporations Code is irrevocable for the period
specified therein.
2.11 Cumulative Voting for Election of Directors
Provided the candidate's name has been placed in nomination
prior to the voting and at least one shareholder has given notice
at the meeting prior to the voting of the shareholder's intention
to cumulate the shareholders' votes, every shareholder entitled
to vote at any election for directors may cumulate such
shareholder's votes and give one candidate a number of votes
equal to the number of directors to be elected multiplied by the
number of votes to which such shareholder's shares are normally
entitled, or distribute such shareholder's votes on the same
principle among as many candidates as such shareholder thinks
fit. The candidates receiving the highest number of votes of the
shares entitled to be voted for them up to the number of
directors to be elected by such shares are elected.
ARTICLE III - BOARD OF DIRECTORS
3.01 Powers
Subject to any limitations in the Articles of Incorporation
of these By-Laws and to any provision of the California
Corporations Code requiring shareholder authorization or approval
for a particular action, the business and affairs of the
Corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the Board of Directors.
The Board of Directors may delegate the management of the day-to-
day operation of the business of the Corporation to a management
company or other person provided that the business and affairs of
the Corporation shall be managed and all corporate powers shall
be exercised under the ultimate direction of the Board of
Directors.
-4-<PAGE>
3.02 Number, Tenure and Qualifications
The authorized number of directors of the Board of Directors
shall be four (4) until changed by amendment of the Articles of
Incorporation or amendment of the By-Laws approved by the
shareholders.
Each Director shall hold office until the next annual
meeting of shareholders and until a successor has been elected
and qualified. If any such annual meeting is not held, or the
directors are not elected thereat, the directors may be elected
at any special meeting of shareholders held for that purpose.
Directors need not be shareholders.
3.03 Regular Meetings
A regular annual meeting of the Board of Directors shall be
held without other notice than this By-Law immediately after, and
at the same place as, the annual meeting of shareholders. The
Board of Directors may provide for other regular meetings from
time to time by resolution.
3.04 Special Meetings
Special meetings of the Board of Directors may be called at
any time by the President or any Vice President, or Secretary or
any two (2) directors. Notice of the time and place of all
special meetings of the Board of Directors shall be delivered
personally or by telephone or telegraph to each director at least
forty-eight (48) hours before the meeting, or sent to each
director by first-class mail, postage prepaid, at least four (4)
days before the meeting. Such notice need not specify the
purpose of the meeting. Notice of any meeting of the Board of
Directors need not be given to any director who signs a waiver of
notice or a consent to holding the meeting or an approval of the
minutes thereof, whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such director. All such
waivers, consents and approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
3.05 Place of Meetings
Meetings of the Board of Directors may be held at any place,
within or without the State of California, which has been
designated in the notice, or, if not stated in the notice or
there is no notice, the principle executive office of the
Corporation or as designated by resolution duly adopted by the
Board of Directors.
3.06 Participation by Telephone
Members of the Board of Directors may participate in a
meeting through use of conference telephone or similar
communications equipment, so long as all members participating in
such meeting can hear one another.
-5-<PAGE>
3.07 Quorum
A quorum at all meetings of the Board of Directors shall be
three (3). Whether or not a quorum is present, a majority of the
directors present may adjourn any meeting to another time and
place. If a meeting is adjourned for more than twenty-four (24)
hours, notice of any adjournment to another time or place shall
be given prior to the time of the adjourned meeting to the
directors who were not present at the time of adjournment.
3.08 Action at Meeting
Subject to Sections 310 and 317(e) of the California
Corporations Code, every act or decision done or made by a
majority of the directors present at a meeting duly held at which
a quorum is present is the act of the Board of Directors.
Directors present at a meeting at which a quorum is initially
present may continue to transact business notwithstanding the
loss of a quorum due to the withdrawal of directors, if any
action taken is approved by at least a majority of the required
quorum for such meeting.
3.09 Action Without Meeting
Any action required or permitted to be taken by the Board of
Directors may be taken without a meeting, if all members of the
Board shall individually or collectively consent in writing to
such action. Such written consent or consents shall be filed
with the minutes of the proceedings of the Board. Such action by
written consent shall have the same force and effect as a
unanimous vote of such directors.
3.10 Declaration of Vacancy; Removal
The Board of Directors may declare vacant the office of a
director who has been declared of unsound mind by an order of
court or who has been convicted of a felony.
Any or all of the directors may be removed without cause by
a vote of shareholders holding a majority of the outstanding
shares entitled to vote at an election of directors; provided,
however, that unless the entire Board is removed, no director may
be removed when the votes cast against removal, or not consenting
in writing to such removal, would be sufficient to elect such
director if voted cumulatively at an election at which (i) the
same total number of votes were cast (or, if such action is taken
by written consent, all shares entitled to vote were voted) and
(ii) the entire number of directors authorized at the time of the
director's most recent election were then being elected.
In the event that an office of a director is so declared
vacant or in the event that the Board or any one or more
directors is so removed, new directors may be elected at the same
meeting.
-6-<PAGE>
3.11 Resignations
Any director may resign effective upon giving written notice
to the President, the Secretary or the Board of Directors of the
Corporation, unless the notice specifies a later time for the
effectiveness of such resignation. If the resignation is
effective at a future time, a successor may be elected to take
office when the resignation becomes effective.
3.12 Vacancies
Except for the vacancy created by the removal of a director,
vacancies in the Board of Directors, whether caused by
resignation, death or otherwise, may be filled by resolution of
the Board of Directors, or if the number of directors then in
office is less than a quorum, (i) by the unanimous written
consent of the directors then in office, (ii) by the approval of
a majority of the directors then in office at a meeting held
pursuant to notice or waivers of notice complying with Section
307 of the California Corporations Code, or (iii) by a sole
remaining director. Each director so elected shall hold office
until his successor is elected at an annual, regular or special
meeting of the shareholders.
Vacancies created by the removal of a director may be filled
only by approval of the shareholders. The shareholders may elect
a director at any time to fill any vacancy not filled by the
directors. Any such election by written consent requires the
consent of a majority of the outstanding shares entitled to vote.
3.13 Compensation
No stated salary shall be paid directors, as such, for their
services, but, by resolution of the Board of Directors, a fixed
sum and expenses of attendance, if any, may be allowed for
attendance at each regular or special meeting of the Board;
provided that nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special
or standing committees may be allowed like compensation for
attending committee meetings.
3.14 Committees
The Board of Directors may, by resolution adopted by a
majority of the authorized number of directors, designate one or
more committees, each consisting of two (2) or more directors, to
service at the pleasure of the Board of Directors. The Board of
Directors may designate one or more directors as alternate
members of any committee, who may replace any absent member at
any meeting of the committee. The appointment of members or
alternate members of a committee requires the vote of a majority
of the authorized number of directors. Any such committee, to
the extent provided in the resolution of the Board of Directors,
shall have all the authority of the Board of Directors, except
with respect to (a) the approval of any action requiring
-7-<PAGE>
shareholder's approval or approval of the outstanding shares, (b)
the filling of vacancies on the Board or on any committee, (c)
the fixing of compensation of directors for serving on the Board
or on any committee, (d) the adoption, amendment or repeal of By-
Laws, (e) the amendment or repeal of any resolution of the Board
which by its express terms is not so amendable or repealable,
(f)a distribution to shareholders, except at a rate or in a
periodic amount or within a price range determined by the Board,
and (g) the appointment of other committees of the Board or the
members thereof.
ARTICLE IV - OFFICERS
4.01 Number and Term
The officers of the Corporation shall be a Chairman of the
Board and Chief Executive Officer, a President and Chief
Operating Officer, one or more Vice Presidents, a Secretary and a
Chief Financial Officer, all of whom shall be chosen by the Board
of Directors. In addition, the Board of Directors may appoint
such other officers as may be deemed expedient for the proper
conduct of the business of the Corporation, each of whom shall
have such authority and perform such duties as the Board of
Directors may from time to time determine.
The officers to be appointed by the Board of Directors shall
be chosen annually at the regular meeting of the Board of
Directors held after the annual meeting of shareholders and shall
serve at the pleasure of the Board of Directors. If officers are
not chosen at such meeting of the Board of Directors, they shall
be chosen as soon thereafter as shall be convenient. Each
officer shall hold office until his successor has been duly
chosen or until his removal or resignation.
4.02 Inability to Act
In the case of the extended absence or inability to act of
any officer of the Corporation and of any person herein
authorized to act in his place, the Board of Directors may from
time to time delegate the powers or duties of such officer to any
other officer, or any director or other person whom it may
select.
4.03 Removal and Resignation
Subject to any rights of an officer under any contract of
employment, any officer chosen by the Board of Directors may be
removed at any time, with or without cause, by the affirmative
vote of a majority of all the members of the Board of Directors.
Subject to the rights of the Corporation under any contact
to which the officer is a party, any officer chosen by the Board
of Directors may resign at any time effective upon receipt of
written notice of said resignation by the President, the
Secretary or the Board of Directors, unless a different time is
specified therein.
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4.04 Vacancies
A vacancy occurring in any office for any reason may be
filled by resolution of the Board of Directors for the unexpired
portion of the term.
4.05 Chairman of the Board
The Chairman of the Board of Directors shall be the Chief
Executive Officer of the Corporation and shall preside at all
meetings of the Board of Directors.
4.06 President
The President shall be the General Manager and Chief
Operating Officer of the Corporation, subject to the control of
the Board of Directors, and as such shall preside at all meetings
of shareholders, shall have general supervision of the affairs of
the Corporation, shall make reports to the Board of Directors and
shareholders, and shall perform all such other duties as are
incident to such officer or are properly required by the Board of
Directors.
4.07 Vice President
In the extended absence of the President, or in the event of
such officer's death, disability or refusal to act, the Vice
President, or in the event there be more than one Vice President,
the Vice Presidents in the order designated at the time of their
selection, or in the absence of any such designation, then in the
order of their selection, shall perform the duties of President,
and when so acting, shall have all the powers and be subject to
all restrictions upon the President. Each Vice President shall
have such powers and discharge such duties as may be assigned
from time to time by the President or by the Board of Directors.
4.08 Secretary
The Secretary shall see that notices for all meetings are
given in accordance with the provisions of these Bylaws and as
required by law, and shall keep minutes of all meetings, shall
have charge of the seal and the corporate books, and shall make
such reports and perform such other duties as are incident to
such office, or as are properly required by the President or by
the Board of Directors.
The Assistant Secretary or the Assistant Secretaries, if
any, in the order of their seniority, shall, in the absence or
disability of the Secretary, or in the event of such officer's
refusal to act, perform the duties and exercise the powers of the
Secretary, and shall have such powers and discharge such duties
as may be assigned from time to time by the President or by the
Board of Directors.
4.09 Chief Financial Officer
The Chief Financial Officer may also be referred to by the
alternate title of "Treasurer". The Chief Financial Officer
shall have custody of all moneys and securities of the
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Corporation and shall keep regular books of account. Such
officer shall disburse the funds of the Corporation in payment of
the just demands against the Corporation, or as may be ordered by
the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Board of Directors from
time to time as may be required of such officer, an account of
all transactions as Chief Financial Officer and of the financial
condition of the Corporation. Such officer shall perform all
duties incident to such office or which are properly required by
the President or by the Board of Directors.
The Assistant Treasurer or the Assistant Treasurers, if any,
in the order of their seniority, shall, in the absence or
disability of the Chief Financial Officer, or in the event of
such officer's refusal to act, perform the duties and exercise
the powers of the Chief Financial Officer, and shall have such
powers and discharge such duties as may be assigned from time to
time by the President or by the Board of Directors.
4.10 Salaries
The salaries of the officers shall be fixed from time to
time by the Board of Directors and no officer shall be prevented
from receiving such salary by reason of the fact that such
officer is also a director of the Corporation.
ARTICLE V - MISCELLANEOUS
5.01 Record Date and Closing of Stock Books
The Board of Directors may fix, in advance, a record date to
determine the shareholders entitled to notice of any meeting or
to vote or entitled to receive payment of any dividend or
distribution or any allotment of any rights or entitlement to
exercise any rights in respect to any other lawful action. The
record date so fixed shall not be more than sixty (60) nor less
than ten (10) days prior to the date of such meeting, nor more
than sixty (60) days prior to any other action.
If no record date is fixed:
(1) The record date for determining shareholders entitled
to notice of or to vote at a meeting of shareholders shall be at
the close of business on the business day next preceding the day
on which notice is given or, if notice is waived, at the close of
business on the business day next preceding the day on which the
meeting is held;
(ii) The record date for determining shareholders entitled
to give consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors has been taken,
shall be the day on which the first written consent is given;
and;
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(iii)The record date for determining shareholders for any
other purpose shall be at the close of business on the day on
which the Board of Directors adopts the resolution relating
thereto, or the sixtieth (60th) day prior to the date of such
other action, whichever is later.
When a record date is so fixed, then, subject to the
provisions of the General Corporation Laws of the state of
California, only shareholders of record at the close of business
on that date are entitled to notice of and to vote or to receive
the dividend, distribution, or allotment of rights, or to
exercise the rights, as the case may be, notwithstanding any
transfer of any shares on the books of the Corporation after the
record date.
A determination of shareholders of record entitled to notice
of or to vote at a meeting of shareholders shall apply to any
adjournment of the meeting, but the Board of Directors shall fix
a new record date if the meeting is adjourned for more than
forty-five (45) days from the date set at the original meeting.
The Board of Directors may close the books of the
Corporation against transfers of shares during the whole or any
part of a period of not more than sixty (60) days prior to the
date of a shareholders' meeting, the date when the right to any
dividend, distribution, or allotment of rights vests, or the
effective date of any change, conversion or exchange of shares.
5.02 Certificates
Certificates of stock shall be issued in numerical order and
each shareholder shall be entitled to have a certificate signed
in the name of the Corporation by the President or a Vice
President, and by the Chief Financial Officer or an Assistant
Treasurer, the Secretary or an Assistant Secretary, certifying
the number of shares and the class or series of shares owned by
such shareholder. Any or all of the signatures on the
certificate may be facsimile. Prior to the due presentment for
registration of transfer in the stock transfer book of the
Corporation, the registered owner shall be treated as the person
exclusively entitled to vote, to receive notifications and
otherwise to exercise all the rights and powers of an owner,
except as expressly provided otherwise by the laws of the State
of California.
5.03 Representation of Shares in Other Corporations
Shares of other corporations standing in the name of this
Corporation may be voted or represented and all incidents thereto
may be exercised on behalf of the Corporation by the President or
any Vice President and the Chief Financial Officer or an
Assistant Treasurer or the Secretary or an Assistant Secretary.
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5.04 Fiscal Year
The fiscal year of the Corporation shall end on the 31st day
of December.
5.05 Annual Reports
The Annual Report to shareholders, described in the
California Corporations Code, is expressly waived and dispensed
with.
5.06 Amendments
These Bylaws may be adopted, amended, or repealed by the
vote or the written consent of shareholders entitled to exercise
a majority or the voting power of the Corporation. Subject to
the right of shareholders to adopt, amend, or repeal these
Bylaws, these Bylaws may be adopted, amended, or repealed by the
Board of Directors, except that an amendment to these Bylaws
changing the authorized number of directors may be adopted by the
Board of Directors only as permitted under Section 212 of the
California Corporations Code.
5.07 Liability of Directors
The liability of the directors of the Corporation for
monetary damages shall be eliminated to the fullest extent
permitted under California law.
5.08 Indemnification of Corporate Agents
The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any proceeding by
reason of the fact that such person is or was an agent of the
Corporation, against expenses, judgements, fines, settlements and
other amounts, actually and reasonably incurred in connection
with such proceedings, to the fullest extent permissible by the
provisions of Section 317 of the California Corporations Code,
and the Corporation shall advance the expenses reasonably
expected to be incurred by such agent in defending any such
proceeding upon receipt of the undertaking required by
subdivision (f) of such Section 317. The terms "agent",
"Proceeding" and "expenses" as used in this Section 5.08 shall
have the same meaning as such terms in such Section 317.
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Exhibit B-71
BY-LAWS
OF
NCP LAKE POWER INCORPORATED
ARTICLE I - Stockholders
1.1 Place of Meetings
All meetings of the stockholders shall be held at such
place within or without the State of Delaware as may be
designated from time to time by the Board of Directors or the
President or, if not so designated, at the registered office of
the corporation.
1.2 Annual Meeting
The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may
properly be brought before the meeting shall be held on the
second Wednesday in November of each year beginning in the year
1994, at a time fixed by the Board of Directors or the President.
If this date shall fall upon a legal holiday at the place of the
meeting, then such meeting shall be held on the next succeeding
business day at the same hour. If no annual meeting is held in
accordance with the foregoing provisions, the Board of Directors
shall cause the meeting to be held as soon thereafter as
convenient.
1.3 Special Meetings
Special meetings of stockholders may be called at any
time by the President or by the Board of Directors. Special
meetings of stockholders shall be called by the President or
Secretary upon the written request of one ore more stockholders
who hold in the aggregate at least ten percent (10%) of the
shares of the capital stock entitled to vote at the meeting; such
request must state the purpose or purposes of the proposed
meeting. Business transacted at any special meeting of
stockholders shall be limited to matters relating to the purpose
or purposes stated in the notice of meeting.
1.4 Notice of Meetings
Except as otherwise provided by law, written notice of each
meeting of stockholders, whether annual or special, shall be
given not less than ten (10) nor more than sixty (60) days before
the date of the meeting to each stockholder entitled to vote at
such meeting. The notices of all meetings shall state the place,
date and hour of the meeting. The notice of special meeting
shall state, in addition, the purpose or purposes for which the
meeting is called. If mailed, notice is given when deposited in
the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the
corporation.
1.5 Voting List
The officer who has charge of the stock ledger of the
corporation shall prepare, at least ten (10) days before every
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meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours,
for a period of at least ten (10) days prior to the meeting, at a
place within the city where the meeting is to be held. The list
shall also be produced and kept at the time and place of the
meeting during the whole time of the meeting, and may be
inspected by any stockholder who is present.
1.6 Quorum
Except as otherwise provided by law, the Certificate of
Incorporation of these By-Laws, the holders of a majority of the
shares of the capital stock of the corporation issued and
outstanding and entitled to vote at the meeting, present in
person or represented by proxy, shall constitute a quorum for the
transaction of business.
1.7 Adjournments
Any meeting of stockholders may be adjourned to another time
and to any other place at which a meeting of stockholders may be
held under these By-Laws by the stockholders present or
represented at the meeting and entitled to vote, although less
than a quorum, or, if no stockholder is present, by any officer
entitled to preside at or to act as Secretary of such meeting.
It shall not be necessary to notify any stockholder of any
adjournment of less than thirty (30) days if the time and place
of the adjourned meeting are announced at the meeting at which
adjournment is taken, unless after the adjournment a new record
date is fixed for the adjourned meeting, At the adjourned
meeting, the corporation may transact any business which might
have been transacted at the original meeting.
1.8 Voting and Proxies
Each stockholder shall have one (1) vote for each share of
stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless
otherwise provided in the Certificate of Incorporation. Each
stockholder of record entitled to vote at a meeting of
stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may vote or express such
consent or dissent in person or may authorize another person or
persons to vote or act for him by written proxy executed by the
stockholder or his authorized agent and delivered to the
Secretary of the corporation. No such proxy shall be voted or
acted upon after three years from the date of its execution,
unless the proxy expressly provides for a longer period.
1.9 Action at Meeting
When a quorum is present at any meeting, the holders of a
majority of the stock present or represented and voting on a
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matter (or if there are two or more classes of stock entitled to
vote as separate classes, then in the case of each such class,
the holders of a majority of the stock of that class present or
represented and voting on a matter) shall decide any matter to be
voted upon by the stockholders at such meeting, except when a
different vote is required by express provision of law, the
Certificate of Incorporation or these By-Laws. Any election by
stockholders shall be determined by a plurality of the votes cast
by the stockholders entitled to vote at the election.
1.10 Action Without Meeting
Any action required or permitted to be taken at any annual
or special meeting of stockholders of the corporation may be
taken without a meeting, without prior notice and without a vote,
if a consent in writing, setting forth the action so taken, is
signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to
vote on such action were present and voted. Prompt notice of the
taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders
who have not consented in writing.
ARTICLE 2 - Directors
2.1 General Powers
The business and affairs of the corporation shall be managed
by or under the direction of a Board of Directors, who may
exercise all of the powers of the corporation except as otherwise
provided by law, the Certificate of Incorporation or these By-
Laws. In the event of a vacancy in the Board of Directors, the
remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is
filled.
2.2 Number: Election: Tenure and Qualification
The number of directors which shall constitute the whole
Board shall be fixed by resolution of the Board of Directors, the
number to be not fewer than one (1) nor more than ten (10), with
the number currently fixed at three (3). Each director shall be
elected by the stockholders at the annual meeting and shall hold
office until the next annual meeting and until his successor is
elected and qualified, or until his earlier death, resignation or
removal. Directors need not be stockholders of the corporation.
2.3 Enlargement of the Board
The number of the Board of Directors may be increased at any
time by vote of a majority of the directors then in office.
2.4 Vacancies
Unless and until filled by the stockholders, any vacancy in
the Board of Directors, however occurring, including a vacancy
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resulting from an enlargement of the Board, may be filled by vote
of a majority of the directors then in office, although less than
a quorum, or by a sole remaining director. A director elected to
fill a vacancy shall be elected for the unexpired term of his
predecessor in office, or a director chosen to fill a position
resulting from an increase in the number of directors shall hold
office until the next annual meeting of stockholders and until
his successor is elected and qualified, or until his earlier
death, resignation or removal.
2.5 Resignation and Removal
Any director may resign by delivering his written
resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time
or upon the happening of some other event.
Any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors.
2.6 Regular Meetings
Regular meetings of the Board of Directors may be held
without notice at such time and place, within or without the
State of Delaware, as shall be determined from time to time by
the Board of Directors; provided that any director who is absent
when such a determination is made shall be given notice of the
determination. A regular meeting of the Board of Directors may
be held without notice immediately after and at the same place as
the annual meeting of stockholders.
2.7 Special Meetings
Special meetings of the Board of Directors may be held at
any time and place, within or without the State of Delaware,
designated in a call by the Chairman of the board, President, two
or more directors, or by one director in the event that there is
only a single director in office.
2.8 Notice of Special Meetings
Notice of any special meeting of directors shall be given to
each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be given to each
director in person, by telephone or by telegram sent to his
business or home address at least forty-eight (48) hours in
advance of the meeting, or by written notice mailed to his
business or home address at least seventy-two (72) hours in
advance of the meeting. A notice or waiver of notice of a
meeting of the Board of Directors need not specify the purposes
of the meeting.
2.9 Meetings by Telephone Conference Calls
Directors or any members of any committee designated by the
directors may participate in a meeting of the Board of Directors
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or such committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation by such means shall constitute presence in persons
at such meeting.
2.10 Quorum
A majority of the number of directors fixed pursuant to
Section 2.2 shall constitute a quorum at all meetings of the
Board of Directors. In the event one or more of the directors
shall be disqualified to vote at any meeting, then the required
quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than
one-third (1/3) of the number so fixed constitute a quorum. In
the absence of a quorum at any such meeting, a majority of the
directors present may adjourn the meeting from time to time
without further notice other than announcement at the meeting,
until a quorum shall be present.
2.11 Action at Meeting
At any meeting of the Board of Directors at which quorum is
present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is
specified by law, the Certificate of Incorporation or these By-
Laws.
2.12 Action by Consent
Any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting, of all members of the
Board or committee, as the case may be, consent to the action in
writing, and the written consents are filed with the minutes of
proceedings of the Board or committee.
2.13 Removal
Any one or more or all of the directors may be removed, with
or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
2.14 Committees
The Board of Directors may, be resolution passed by a
majority of the whole Board, designate one or more committees,
each committee to consist of one or more of the directors of the
corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the
member or members of the committee present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent
or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors and subject
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to the provisions of the General Corporation Law of the State of
Delaware, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the
business and affairs of the corporation and may authorize the
seal of the corporation to be affixed to all papers which may
require it. Each such committee shall keep minutes and make such
reports as the Board of Directors may from time to time request.
Except as the Board of Directors may otherwise determine, any
committee may make rules for the conduct of its business, but
unless otherwise provided by the directors in such rules, its
business shall be conducted as nearly as possible in the same
manner as is provided in these By-Laws for the Board of
Directors.
2.15 Compensation of Directors
Directors may be paid such compensation for their services
and such reimbursement for expenses of attendance at meetings as
the Board of Directors may from time to time determine. No such
payment shall preclude any director from serving the corporation
or any of its parent of subsidiary corporations in any other
capacity and receiving compensation for such service.
ARTICLE 3 - Officers
3.1 Enumeration
The officers of the corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with
such other titles as the Board of Directors shall determine,
including a Chairman of the Board, a Vice Chairman of the Board,
and one or more Vice Presidents, Assistant Treasurers and
Assistant Secretaries. The Board of Directors may appoint such
other officers as it may deem appropriate.
3.2 Election
The President, Treasurer and Secretary shall be elected
annually by the Board of Directors at its first meeting following
the annual meeting of stockholders. Other officers may be
appointed by the Board of Directors at such meeting or at any
other meeting.
3.3 Qualification
The President need not be a director. No officer need be a
stockholder. Any two or more offices may be held by the same
person.
3.4 Tenure
Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, each officer shall hold office
until his successor is elected and qualified, unless a different
term is specified in the vote choosing or appointing him, or
until his earlier death, resignation or removal.
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3.5 Resignation and Removal
Any officer may resign by delivering his written resignation
to the corporation at its principal office or to the President or
or Secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon
the happening of some other event.
Board of Directors, or a committee duly authorized to do so,
may remove any officer with or without cause. Except as the
Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as
an officer for any period following his resignation or removal,
or any right to damages on account of such removal, whether his
compensation be by month or by the year or otherwise, unless such
compensation is expressly provided in a duly authorized written
agreement with the corporation.
3.6 Vacancies
The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled
for such period as it may determine any offices other than those
of President, Treasurer and Secretary. Each such successor shall
hold office for the unexpired term of his predecessor and until
his successor is elected and qualified, or until his earlier
death, resignation or removal.
3.7 Chairman of the Board and Vice-Chairman of the Board
If the Board of Directors appoints a Chairman of the Board,
he shall, when present, preside at all meetings of the Board of
Directors. He shall perform such duties and possess such powers
as are usually vested in the office of the Chairman of the Board
or as may be vested in him by the Board of Directors. If the
Board of Directors appoints a Vice-Chairman of the Board, he
shall, in the absence or disability of the Chairman of the Board,
perform the duties and exercise the powers of the Chairman of the
Board and shall perform such other duties and possess such other
powers as may from time to time be vested in him by the Board of
Directors.
3.8 President
The President shall be the chief operating officer of the
corporation. He shall also be the chief executive officer of the
corporation unless such title is assigned to a Chairman of the
Board. The President shall, subject to the direction of the
Board of Directors, have general supervision and control of the
business of the corporation. Unless otherwise provided by the
directors, he shall preside at all meetings of the stockholders
and of the Board of Directors (except as provided in Section 3.7
above). The President shall perform such other duties and shall
have such other powers as the Board of Directors may from time to
time prescribe.
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3.9 Vice Presidents
Any Vice President shall perform such duties and possess
such powers as the Board of Directors or the President may from
time to time prescribe. In the event of the absence, inability,
or refusal to act of the President, the Vice President (or if
there shall be more than one, the Vice Presidents in the order
determined by the Board of Directors) shall perform the duties of
the President and when so performing shall have all the powers of
and be subject to all the restrictions upon the President. The
Board of Directors may assign to any Vice President the title of
Executive Vice President, Senior Vice President or any other
title selected by the Board of Directors.
3.10 Secretary and Assistant Secretaries
The Secretary shall perform such duties and shall have such
powers as the Board of Directors or the President may from time
to time prescribe. In addition, the Secretary shall perform such
duties and have such powers as are incident to the office of the
secretary, including without limitation the duty and power to
give notices of all meetings of stockholders and special meetings
of the board of Directors, to attend all meetings of stockholders
and the Board of Directors and keep a record of the proceedings,
to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records
and the corporate seal and to affix and attest to the same on
documents.
Any Assistant Secretary shall perform such duties and posses
such powers as the Board of Directors, the President or the
Secretary may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Secretary, the
Assistant Secretary, (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of
the Secretary.
In the absence of the Secretary or any Assistant Secretary
at any meeting of stockholders or directors, the person presiding
at the meeting shall designate a temporary secretary to keep, a
record of the meeting.
3.11 Treasurer and Assistant Treasurers
The Treasurer shall perform such duties and shall have such
powers as may from time to time be assigned to him by the Board
of Directors or the President. In addition, the Treasurer shall
perform such duties and have such powers as are incident to the
office of treasurer, including without limitation the duty and
power to keep and be responsible for all funds and securities of
the corporation, to deposit funds of the corporation in
depositories selected in accordance with these By-Laws, to
disburse such funds as ordered by the Board of Directors, to make
proper accounts of such funds, and to render as required by the
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Board of Directors statements of all such transactions and of the
financial condition of the corporation.
The Assistant Treasurers shall perform such duties and
possess such powers as the Board of Directors, the President or
the Treasurer may from time to time prescribe. In the event of
the absence, inability or refusal to act of the Treasurer, the
Assistant Treasurer, (or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of
the Treasurer.
3.12 Bonded Officers
The Board of Directors may require any officer to give the
corporation a bond in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors upon such
terms and conditions as the Board of Directors may specify,
including without limitation a bond for the faithful performance
of his duties and for the restoration to the corporation of all
property in his possession or under his control belonging to the
corporation.
3.13 Salaries
Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or
allowed from time to time by the Board of Directors.
ARTICLE 4 - Capital Stock
4.1 Issuance of Stock
Unless otherwise voted by the stockholders and subject to
the provisions of the Certificate of Incorporation, the whole or
any part of any unissued balance of the authorized capital stock
of the corporation or the whole or any of any unissued balance of
the authorized capital stock of the corporation held in its
treasury may be issued, sold, transferred or otherwise disposed
of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may
determine.
4.2 Certificates of Stock
Every holder of stock of the corporation shall be entitled
to have a certificate, in such form as may be prescribed by law
and by the Board of Directors certifying the number and class of
shares owned by him in the corporation. Each such certificate
shall be signed by, or in the name of the corporation by, the
Chairman or Vice-Chairman, if any, of the Board of Directors, or
the President or a Vice President, and the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary
of the corporation. Any or all of the signatures on the
certificate may be a facsimile.
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Each certificate for shares of stock which are subject to
any restriction on transfer pursuant to the Certificate of
Incorporation, the By-Laws, applicable securities laws or any
agreement among any number of shareholders or among such holders
and the corporation shall have conspicuously noted on the face or
back of the certificate either the full text of the restriction
or a statement of the existence of such restriction.
4.3 Transfers
Subject to the restrictions, if any, stated or noted on the
stock certificates, shares of stock may be transferred on the
books of the corporation by the surrender to the corporation of
its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power
of attorney properly executed, and with such proof of authority
or the authenticity of signature as the corporation or its
transfer agent may reasonably require. Except as may be
otherwise required by law, by the Certificate of Incorporation or
by these By-Laws, the corporation shall be entitled to treat the
record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and
the right to vote with respect to such stock, regardless of any
transfer, pledge or other disposition of such stock until the
shares have been transferred on the books of the corporation in
accordance with the requirements of these By-Laws.
4.4 Lost, Stolen or Destroyed Certificates
The corporation may issue a new certificate of stock in
place of any previously issued certificate alleged to have been
lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of
reasonable evidence of such loss, theft or destruction and the
giving of such indemnity as the Board of Directors may require
for the protection of the corporation or any transfer agent or
registrar.
4.5 Record Date
The Board of Directors may fix in advance a date as a record
date for the determination of the stockholders entitled to notice
of or to vote at any meeting of stockholders or to express
consent (or dissent) to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other
lawful action. Such record date shall not be more than 60 nor
less than 10 days before the date of such meeting, nor more than
60 days prior to any other action to which such record date
releases.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day before
the day on which notice is given, or, if notice is waived, at the
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close of business on the day before the day on which the meeting
is held. The record date for determining stockholders entitled
to express consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is
expressed. The record date for determining stockholders for any
other purpose shall be at the close of business on the day on
which the Board of Directors adopts the resolution relating to
such purpose.
A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
ARTICLE 5 - Indemnification
The corporation shall, to the fullest extent permitted by
Section 145 or the General Corporation Law of Delaware, as that
section may be amended and supplemented from time to time,
indemnify any director, officer or trustee which it shall have
power to indemnify under the section against any expenses,
liabilities or other matters referred to in or covered by that
section. The indemnification provided for in this Article (i)
shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any by-law, agreement or vote
of stockholders or disinterested directors or otherwise, both as
to action in their official capacities and as to action in
another capacity while holding such office, (ii) shall continue
as to a person who has ceased to be a director, officer or
trustee and (iii) shall inure to the benefit of the heirs,
executors and administrators of such a person. The corporation's
obligation to provide indemnification under this Article shall be
offset to the extent of any other source of indemnification or
any otherwise applicable insurance coverage under a policy
maintained by the corporation or any other person.
Expenses incurred by a director of the Corporation in
defending a civil or criminal action, suit or proceeding by
reason of the fact that he is or was a director of the
Corporation (or was serving at the Company's request as a
director or officer of another corporation) shall be paid by the
corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of such director to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Corporation as authorized by relevant sections of the general
Corporation Law of Delaware.
To assure indemnification under this Article of all such
persons who are determined by the corporation or otherwise to be
or to have been "fiduciaries" of any employee benefit plan of the
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corporation which may exist from time to time, such section 145
shall, for the purposes of this Article, be interpreted as
follows: an "other enterprise" shall be deemed to include such
an employee benefit plan, including, without limitation, any plan
of the corporation which is governed by the Act of Congress
entitled "Employee Retirement Income Security Act of 1974," as
amended from time to time; the corporation shall be deemed to
have requested a person to serve an employee benefit plan where
the performance by such person of his duties to the corporation
also imposes duties on, or otherwise involves services by, such
person to the plan or participants or beneficiaries of the plan;
excise taxes assessed on a person with respect to an employee
benefit plan pursuant to such Act of Congress shall be deemed
"fines"; and action taken or omitted by a person with respect to
an employee benefit plan in the performance of such person's
duties for a purpose reasonably believed by such person to be in
the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the
best interest of the corporation.
ARTICLE 6 - General Provisions
6.1 Fiscal Year
Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall
begin on the 1st day of January in each year and end on the 31st
day of December in each year.
6.2 Corporate Seal
The corporate seal shall be in such form as shall be
approved by the Board of Directors.
6.3 Execution of instruments
The President or the Treasurer shall have power to execute
and deliver on behalf and in the name of the corporation any
instrument requiring the signature of an officer of the
corporation, except as otherwise provided in these By-Laws, or
where the execution and delivery of such an instrument shall be
expressly delegated by the Board of Directors to some other
officer or agent of the corporation.
6.4 Waiver of Notice
Whenever any notice whatsoever is required to be given by
law, by the Certificate of Incorporation or by these By-Laws, a
waiver of such notice either in writing signed by the person
entitled to such notice or such person's duly authorized
attorney, or by telegraph, cable or any other available method,
whether before, at or after the time stated in such waiver, or
the appearance of such person or persons at such meeting in
person or by proxy, shall be deemed equivalent to such notice.
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6.5 Voting of Securities
Except as the directors may otherwise designate, the
President or Treasurer may waive notice of, and act as, or
appoint any person or persons to act as, proxy or attorney-in-
fact for this corporation (with or without power of substitution)
at, any meeting of stockholders or shareholders of any other
corporation or organization, the securities of which may be held
by this corporation.
6.6 Evidence of Authority
A certificate by the Secretary, or an Assistant Secretary,
or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or
representative of the corporation shall as to all persons who
rely on the certificate in good faith be conclusive evidence of
such action.
6.7 Certificate of Incorporation
All references in these By-Laws to the Certificate of
Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from
time to time.
6.8 Transactions with Interested Parties
No contract or transaction between the corporation and one
or more of the directors or officers, or between the corporation
and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors or a committee of the Board of
Directors which authorizes the contract or transaction or solely
because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board or
committee in good faith authorizes the contract or transaction by
the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a
quorum;
(2) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee of the Board of
Directors, or the stockholders.
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Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors
or of a committee which authorizes the contract or transaction.
6.9 Severability
Any determination that any provision of these By-Laws is for
any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these By-Laws.
6.10 Pronouns
All pronouns used in these By-Laws shall be deemed to refer
to the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons may require.
ARTICLE 7 - Amendments
7.1 By the Board of Directors. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the
affirmative vote of a majority of the directors present at any
regular or special meeting of the Board of Directors at which a
quorum is present.
7.2 By the Stockholders
These By-Laws may be altered, amended or repealed or new by-
laws may be adopted by the affirmative vote of the holders of a
majority of the shares of the capital stock of the corporation
issued and outstanding and entitled to vote at any regular
meeting of stockholders, or at any special meeting of
stockholders, provided notice of such alteration, amendment,
repeal or adoption of new By-Laws shall have been stated in the
notice of such special meeting.
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BY-LAWS EXHIBIT B-72
OF
NCP GEM INCORPORATED
ARTICLE I - Stockholders
1.1 Place of Meetings
All meetings of the stockholders shall be held at such
place within or without the State of Delaware as may be
designated from time to time by the Board of Directors or the
President or, if not so designated, at the registered office of
the corporation.
1.2 Annual Meeting
The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may
properly be brought before the meeting shall be held on the
second Wednesday in November of each year beginning in the year
1994, at a time fixed by the Board of Directors or the President.
If this date shall fall upon a legal holiday at the place of the
meeting, then such meeting shall be held on the next succeeding
business day at the same hour. If no annual meeting is held in
accordance with the foregoing provisions, the Board of Directors
shall cause the meeting to be held as soon thereafter as
convenient.
1.3 Special Meetings
Special meetings of stockholders may be called at any
time by the President or by the Board of Directors. Special
meetings of stockholders shall be called by the President or
Secretary upon the written request of one ore more stockholders
who hold in the aggregate at least ten percent (10%) of the
shares of the capital stock entitled to vote at the meeting; such
request must state the purpose or purposes of the proposed
meeting. Business transacted at any special meeting of
stockholders shall be limited to matters relating to the purpose
or purposes stated in the notice of meeting.
1.4 Notice of Meetings
Except as otherwise provided by law, written notice of each
meeting of stockholders, whether annual or special, shall be
given not less than ten (10) nor more than sixty (60) days before
the date of the meeting to each stockholder entitled to vote at
such meeting. The notices of all meetings shall state the place,
date and hour of the meeting. The notice of special meeting
shall state, in addition, the purpose or purposes for which the
meeting is called. If mailed, notice is given when deposited in
the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the
corporation.
1.5 Voting List
The officer who has charge of the stock ledger of the
corporation shall prepare, at least ten (10) days before every
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meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours,
for a period of at least ten (10) days prior to the meeting, at a
place within the city where the meeting is to be held. The list
shall also be produced and kept at the time and place of the
meeting during the whole time of the meeting, and may be
inspected by any stockholder who is present.
1.6 Quorum
Except as otherwise provided by law, the Certificate of
Incorporation of these By-Laws, the holders of a majority of the
shares of the capital stock of the corporation issued and
outstanding and entitled to vote at the meeting, present in
person or represented by proxy, shall constitute a quorum for the
transaction of business.
1.7 Adjournments
Any meeting of stockholders may be adjourned to another time
and to any other place at which a meeting of stockholders may be
held under these By-Laws by the stockholders present or
represented at the meeting and entitled to vote, although less
than a quorum, or, if no stockholder is present, by any officer
entitled to preside at or to act as Secretary of such meeting.
It shall not be necessary to notify any stockholder of any
adjournment of less than thirty (30) days if the time and place
of the adjourned meeting are announced at the meeting at which
adjournment is taken, unless after the adjournment a new record
date is fixed for the adjourned meeting, At the adjourned
meeting, the corporation may transact any business which might
have been transacted at the original meeting.
1.8 Voting and Proxies
Each stockholder shall have one (1) vote for each share of
stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless
otherwise provided in the Certificate of Incorporation. Each
stockholder of record entitled to vote at a meeting of
stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may vote or express such
consent or dissent in person or may authorize another person or
persons to vote or act for him by written proxy executed by the
stockholder or his authorized agent and delivered to the
Secretary of the corporation. No such proxy shall be voted or
acted upon after three years from the date of its execution,
unless the proxy expressly provides for a longer period.
1.9 Action at Meeting
When a quorum is present at any meeting, the holders of a
majority of the stock present or represented and voting on a
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matter (or if there are two or more classes of stock entitled to
vote as separate classes, then in the case of each such class,
the holders of a majority of the stock of that class present or
represented and voting on a matter) shall decide any matter to be
voted upon by the stockholders at such meeting, except when a
different vote is required by express provision of law, the
Certificate of Incorporation or these By-Laws. Any election by
stockholders shall be determined by a plurality of the votes cast
by the stockholders entitled to vote at the election.
1.10 Action Without Meeting
Any action required or permitted to be taken at any annual
or special meeting of stockholders of the corporation may be
taken without a meeting, without prior notice and without a vote,
if a consent in writing, setting forth the action so taken, is
signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to
vote on such action were present and voted. Prompt notice of the
taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders
who have not consented in writing.
ARTICLE 2 - Directors
2.1 General Powers
The business and affairs of the corporation shall be managed
by or under the direction of a Board of Directors, who may
exercise all of the powers of the corporation except as otherwise
provided by law, the Certificate of Incorporation or these By-
Laws. In the event of a vacancy in the Board of Directors, the
remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is
filled.
2.2 Number: Election: Tenure and Qualification
The number of directors which shall constitute the whole
Board shall be fixed by resolution of the Board of Directors, the
number to be not fewer than one (1) nor more than ten (10), with
the number currently fixed at three (3). Each director shall be
elected by the stockholders at the annual meeting and shall hold
office until the next annual meeting and until his successor is
elected and qualified, or until his earlier death, resignation or
removal. Directors need not be stockholders of the corporation.
2.3 Enlargement of the Board
The number of the Board of Directors may be increased at any
time by vote of a majority of the directors then in office.
2.4 Vacancies
Unless and until filled by the stockholders, any vacancy in
the Board of Directors, however occurring, including a vacancy
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resulting from an enlargement of the Board, may be filled by vote
of a majority of the directors then in office, although less than
a quorum, or by a sole remaining director. A director elected to
fill a vacancy shall be elected for the unexpired term of his
predecessor in office, or a director chosen to fill a position
resulting from an increase in the number of directors shall hold
office until the next annual meeting of stockholders and until
his successor is elected and qualified, or until his earlier
death, resignation or removal.
2.5 Resignation and Removal
Any director may resign by delivering his written
resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time
or upon the happening of some other event.
Any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors.
2.6 Regular Meetings
Regular meetings of the Board of Directors may be held
without notice at such time and place, within or without the
State of Delaware, as shall be determined from time to time by
the Board of Directors; provided that any director who is absent
when such a determination is made shall be given notice of the
determination. A regular meeting of the Board of Directors may
be held without notice immediately after and at the same place as
the annual meeting of stockholders.
2.7 Special Meetings
Special meetings of the Board of Directors may be held at
any time and place, within or without the State of Delaware,
designated in a call by the Chairman of the board, President, two
or more directors, or by one director in the event that there is
only a single director in office.
2.8 Notice of Special Meetings
Notice of any special meeting of directors shall be given to
each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be given to each
director in person, by telephone or by telegram sent to his
business or home address at least forty-eight (48) hours in
advance of the meeting, or by written notice mailed to his
business or home address at least seventy-two (72) hours in
advance of the meeting. A notice or waiver of notice of a
meeting of the Board of Directors need not specify the purposes
of the meeting.
2.9 Meetings by Telephone Conference Calls
Directors or any members of any committee designated by the
directors may participate in a meeting of the Board of Directors
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or such committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation by such means shall constitute presence in persons
at such meeting.
2.10 Quorum
A majority of the number of directors fixed pursuant to
Section 2.2 shall constitute a quorum at all meetings of the
Board of Directors. In the event one or more of the directors
shall be disqualified to vote at any meeting, then the required
quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than
one-third (1/3) of the number so fixed constitute a quorum. In
the absence of a quorum at any such meeting, a majority of the
directors present may adjourn the meeting from time to time
without further notice other than announcement at the meeting,
until a quorum shall be present.
2.11 Action at Meeting
At any meeting of the Board of Directors at which quorum is
present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is
specified by law, the Certificate of Incorporation or these By-
Laws.
2.12 Action by Consent
Any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting, of all members of the
Board or committee, as the case may be, consent to the action in
writing, and the written consents are filed with the minutes of
proceedings of the Board or committee.
2.13 Removal
Any one or more or all of the directors may be removed, with
or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
2.14 Committees
The Board of Directors may, be resolution passed by a
majority of the whole Board, designate one or more committees,
each committee to consist of one or more of the directors of the
corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the
member or members of the committee present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent
or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors and subject
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to the provisions of the General Corporation Law of the State of
Delaware, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the
business and affairs of the corporation and may authorize the
seal of the corporation to be affixed to all papers which may
require it. Each such committee shall keep minutes and make such
reports as the Board of Directors may from time to time request.
Except as the Board of Directors may otherwise determine, any
committee may make rules for the conduct of its business, but
unless otherwise provided by the directors in such rules, its
business shall be conducted as nearly as possible in the same
manner as is provided in these By-Laws for the Board of
Directors.
2.15 Compensation of Directors
Directors may be paid such compensation for their services
and such reimbursement for expenses of attendance at meetings as
the Board of Directors may from time to time determine. No such
payment shall preclude any director from serving the corporation
or any of its parent of subsidiary corporations in any other
capacity and receiving compensation for such service.
ARTICLE 3 - Officers
3.1 Enumeration
The officers of the corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with
such other titles as the Board of Directors shall determine,
including a Chairman of the Board, a Vice Chairman of the Board,
and one or more Vice Presidents, Assistant Treasurers and
Assistant Secretaries. The Board of Directors may appoint such
other officers as it may deem appropriate.
3.2 Election
The President, Treasurer and Secretary shall be elected
annually by the Board of Directors at its first meeting following
the annual meeting of stockholders. Other officers may be
appointed by the Board of Directors at such meeting or at any
other meeting.
3.3 Qualification
The President need not be a director. No officer need be a
stockholder. Any two or more offices may be held by the same
person.
3.4 Tenure
Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, each officer shall hold office
until his successor is elected and qualified, unless a different
term is specified in the vote choosing or appointing him, or
until his earlier death, resignation or removal.
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3.5 Resignation and Removal
Any officer may resign by delivering his written resignation
to the corporation at its principal office or to the President or
or Secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon
the happening of some other event.
Board of Directors, or a committee duly authorized to do so,
may remove any officer with or without cause. Except as the
Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as
an officer for any period following his resignation or removal,
or any right to damages on account of such removal, whether his
compensation be by month or by the year or otherwise, unless such
compensation is expressly provided in a duly authorized written
agreement with the corporation.
3.6 Vacancies
The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled
for such period as it may determine any offices other than those
of President, Treasurer and Secretary. Each such successor shall
hold office for the unexpired term of his predecessor and until
his successor is elected and qualified, or until his earlier
death, resignation or removal.
3.7 Chairman of the Board and Vice-Chairman of the Board
If the Board of Directors appoints a Chairman of the Board,
he shall, when present, preside at all meetings of the Board of
Directors. He shall perform such duties and possess such powers
as are usually vested in the office of the Chairman of the Board
or as may be vested in him by the Board of Directors. If the
Board of Directors appoints a Vice-Chairman of the Board, he
shall, in the absence or disability of the Chairman of the Board,
perform the duties and exercise the powers of the Chairman of the
Board and shall perform such other duties and possess such other
powers as may from time to time be vested in him by the Board of
Directors.
3.8 President
The President shall be the chief operating officer of the
corporation. He shall also be the chief executive officer of the
corporation unless such title is assigned to a Chairman of the
Board. The President shall, subject to the direction of the
Board of Directors, have general supervision and control of the
business of the corporation. Unless otherwise provided by the
directors, he shall preside at all meetings of the stockholders
and of the Board of Directors (except as provided in Section 3.7
above). The President shall perform such other duties and shall
have such other powers as the Board of Directors may from time to
time prescribe.
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3.9 Vice Presidents
Any Vice President shall perform such duties and possess
such powers as the Board of Directors or the President may from
time to time prescribe. In the event of the absence, inability,
or refusal to act of the President, the Vice President (or if
there shall be more than one, the Vice Presidents in the order
determined by the Board of Directors) shall perform the duties of
the President and when so performing shall have all the powers of
and be subject to all the restrictions upon the President. The
Board of Directors may assign to any Vice President the title of
Executive Vice President, Senior Vice President or any other
title selected by the Board of Directors.
3.10 Secretary and Assistant Secretaries
The Secretary shall perform such duties and shall have such
powers as the Board of Directors or the President may from time
to time prescribe. In addition, the Secretary shall perform such
duties and have such powers as are incident to the office of the
secretary, including without limitation the duty and power to
give notices of all meetings of stockholders and special meetings
of the board of Directors, to attend all meetings of stockholders
and the Board of Directors and keep a record of the proceedings,
to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records
and the corporate seal and to affix and attest to the same on
documents.
Any Assistant Secretary shall perform such duties and posses
such powers as the Board of Directors, the President or the
Secretary may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Secretary, the
Assistant Secretary, (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of
the Secretary.
In the absence of the Secretary or any Assistant Secretary
at any meeting of stockholders or directors, the person presiding
at the meeting shall designate a temporary secretary to keep, a
record of the meeting.
3.11 Treasurer and Assistant Treasurers
The Treasurer shall perform such duties and shall have such
powers as may from time to time be assigned to him by the Board
of Directors or the President. In addition, the Treasurer shall
perform such duties and have such powers as are incident to the
office of treasurer, including without limitation the duty and
power to keep and be responsible for all funds and securities of
the corporation, to deposit funds of the corporation in
depositories selected in accordance with these By-Laws, to
disburse such funds as ordered by the Board of Directors, to make
proper accounts of such funds, and to render as required by the
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Board of Directors statements of all such transactions and of the
financial condition of the corporation.
The Assistant Treasurers shall perform such duties and
possess such powers as the Board of Directors, the President or
the Treasurer may from time to time prescribe. In the event of
the absence, inability or refusal to act of the Treasurer, the
Assistant Treasurer, (or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of
the Treasurer.
3.12 Bonded Officers
The Board of Directors may require any officer to give the
corporation a bond in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors upon such
terms and conditions as the Board of Directors may specify,
including without limitation a bond for the faithful performance
of his duties and for the restoration to the corporation of all
property in his possession or under his control belonging to the
corporation.
3.13 Salaries
Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or
allowed from time to time by the Board of Directors.
ARTICLE 4 - Capital Stock
4.1 Issuance of Stock
Unless otherwise voted by the stockholders and subject to
the provisions of the Certificate of Incorporation, the whole or
any part of any unissued balance of the authorized capital stock
of the corporation or the whole or any of any unissued balance of
the authorized capital stock of the corporation held in its
treasury may be issued, sold, transferred or otherwise disposed
of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may
determine.
4.2 Certificates of Stock
Every holder of stock of the corporation shall be entitled
to have a certificate, in such form as may be prescribed by law
and by the Board of Directors certifying the number and class of
shares owned by him in the corporation. Each such certificate
shall be signed by, or in the name of the corporation by, the
Chairman or Vice-Chairman, if any, of the Board of Directors, or
the President or a Vice President, and the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary
of the corporation. Any or all of the signatures on the
certificate may be a facsimile.
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Each certificate for shares of stock which are subject to
any restriction on transfer pursuant to the Certificate of
Incorporation, the By-Laws, applicable securities laws or any
agreement among any number of shareholders or among such holders
and the corporation shall have conspicuously noted on the face or
back of the certificate either the full text of the restriction
or a statement of the existence of such restriction.
4.3 Transfers
Subject to the restrictions, if any, stated or noted on the
stock certificates, shares of stock may be transferred on the
books of the corporation by the surrender to the corporation of
its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power
of attorney properly executed, and with such proof of authority
or the authenticity of signature as the corporation or its
transfer agent may reasonably require. Except as may be
otherwise required by law, by the Certificate of Incorporation or
by these By-Laws, the corporation shall be entitled to treat the
record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and
the right to vote with respect to such stock, regardless of any
transfer, pledge or other disposition of such stock until the
shares have been transferred on the books of the corporation in
accordance with the requirements of these By-Laws.
4.4 Lost, Stolen or Destroyed Certificates
The corporation may issue a new certificate of stock in
place of any previously issued certificate alleged to have been
lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of
reasonable evidence of such loss, theft or destruction and the
giving of such indemnity as the Board of Directors may require
for the protection of the corporation or any transfer agent or
registrar.
4.5 Record Date
The Board of Directors may fix in advance a date as a record
date for the determination of the stockholders entitled to notice
of or to vote at any meeting of stockholders or to express
consent (or dissent) to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other
lawful action. Such record date shall not be more than 60 nor
less than 10 days before the date of such meeting, nor more than
60 days prior to any other action to which such record date
releases.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day before
the day on which notice is given, or, if notice is waived, at the
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close of business on the day before the day on which the meeting
is held. The record date for determining stockholders entitled
to express consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is
expressed. The record date for determining stockholders for any
other purpose shall be at the close of business on the day on
which the Board of Directors adopts the resolution relating to
such purpose.
A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
ARTICLE 5 - Indemnification
The corporation shall, to the fullest extent permitted by
Section 145 or the General Corporation Law of Delaware, as that
section may be amended and supplemented from time to time,
indemnify any director, officer or trustee which it shall have
power to indemnify under the section against any expenses,
liabilities or other matters referred to in or covered by that
section. The indemnification provided for in this Article (i)
shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any by-law, agreement or vote
of stockholders or disinterested directors or otherwise, both as
to action in their official capacities and as to action in
another capacity while holding such office, (ii) shall continue
as to a person who has ceased to be a director, officer or
trustee and (iii) shall inure to the benefit of the heirs,
executors and administrators of such a person. The corporation's
obligation to provide indemnification under this Article shall be
offset to the extent of any other source of indemnification or
any otherwise applicable insurance coverage under a policy
maintained by the corporation or any other person.
Expenses incurred by a director of the Corporation in
defending a civil or criminal action, suit or proceeding by
reason of the fact that he is or was a director of the
Corporation (or was serving at the Company's request as a
director or officer of another corporation) shall be paid by the
corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of such director to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Corporation as authorized by relevant sections of the general
Corporation Law of Delaware.
To assure indemnification under this Article of all such
persons who are determined by the corporation or otherwise to be
or to have been "fiduciaries" of any employee benefit plan of the
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corporation which may exist from time to time, such section 145
shall, for the purposes of this Article, be interpreted as
follows: an "other enterprise" shall be deemed to include such
an employee benefit plan, including, without limitation, any plan
of the corporation which is governed by the Act of Congress
entitled "Employee Retirement Income Security Act of 1974," as
amended from time to time; the corporation shall be deemed to
have requested a person to serve an employee benefit plan where
the performance by such person of his duties to the corporation
also imposes duties on, or otherwise involves services by, such
person to the plan or participants or beneficiaries of the plan;
excise taxes assessed on a person with respect to an employee
benefit plan pursuant to such Act of Congress shall be deemed
"fines"; and action taken or omitted by a person with respect to
an employee benefit plan in the performance of such person's
duties for a purpose reasonably believed by such person to be in
the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the
best interest of the corporation.
ARTICLE 6 - General Provisions
6.1 Fiscal Year
Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall
begin on the 1st day of January in each year and end on the 31st
day of December in each year.
6.2 Corporate Seal
The corporate seal shall be in such form as shall be
approved by the Board of Directors.
6.3 Execution of instruments
The President or the Treasurer shall have power to execute
and deliver on behalf and in the name of the corporation any
instrument requiring the signature of an officer of the
corporation, except as otherwise provided in these By-Laws, or
where the execution and delivery of such an instrument shall be
expressly delegated by the Board of Directors to some other
officer or agent of the corporation.
6.4 Waiver of Notice
Whenever any notice whatsoever is required to be given by
law, by the Certificate of Incorporation or by these By-Laws, a
waiver of such notice either in writing signed by the person
entitled to such notice or such person's duly authorized
attorney, or by telegraph, cable or any other available method,
whether before, at or after the time stated in such waiver, or
the appearance of such person or persons at such meeting in
person or by proxy, shall be deemed equivalent to such notice.
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6.5 Voting of Securities
Except as the directors may otherwise designate, the
President or Treasurer may waive notice of, and act as, or
appoint any person or persons to act as, proxy or attorney-in-
fact for this corporation (with or without power of substitution)
at, any meeting of stockholders or shareholders of any other
corporation or organization, the securities of which may be held
by this corporation.
6.6 Evidence of Authority
A certificate by the Secretary, or an Assistant Secretary,
or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or
representative of the corporation shall as to all persons who
rely on the certificate in good faith be conclusive evidence of
such action.
6.7 Certificate of Incorporation
All references in these By-Laws to the Certificate of
Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from
time to time.
6.8 Transactions with Interested Parties
No contract or transaction between the corporation and one
or more of the directors or officers, or between the corporation
and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors or a committee of the Board of
Directors which authorizes the contract or transaction or solely
because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board or
committee in good faith authorizes the contract or transaction by
the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a
quorum;
(2) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee of the Board of
Directors, or the stockholders.
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Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors
or of a committee which authorizes the contract or transaction.
6.9 Severability
Any determination that any provision of these By-Laws is for
any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these By-Laws.
6.10 Pronouns
All pronouns used in these By-Laws shall be deemed to refer
to the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons may require.
ARTICLE 7 - Amendments
7.1 By the Board of Directors. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the
affirmative vote of a majority of the directors present at any
regular or special meeting of the Board of Directors at which a
quorum is present.
7.2 By the Stockholders
These By-Laws may be altered, amended or repealed or new by-
laws may be adopted by the affirmative vote of the holders of a
majority of the shares of the capital stock of the corporation
issued and outstanding and entitled to vote at any regular
meeting of stockholders, or at any special meeting of
stockholders, provided notice of such alteration, amendment,
repeal or adoption of new By-Laws shall have been stated in the
notice of such special meeting.
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Exhibit B-73
BY-LAWS
OF
UMATILLA GROVES INCORPORATED
ARTICLE I - Stockholders
1.1 Place of Meetings
All meetings of the stockholders shall be held at such
place within or without the State of Delaware as may be
designated from time to time by the Board of Directors or the
President or, if not so designated, at the registered office of
the corporation.
1.2 Annual Meeting
The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may
properly be brought before the meeting shall be held on the
second Wednesday in November of each year beginning in the year
1994, at a time fixed by the Board of Directors or the President.
If this date shall fall upon a legal holiday at the place of the
meeting, then such meeting shall be held on the next succeeding
business day at the same hour. If no annual meeting is held in
accordance with the foregoing provisions, the Board of Directors
shall cause the meeting to be held as soon thereafter as
convenient.
1.3 Special Meetings
Special meetings of stockholders may be called at any
time by the President or by the Board of Directors. Special
meetings of stockholders shall be called by the President or
Secretary upon the written request of one ore more stockholders
who hold in the aggregate at least ten percent (10%) of the
shares of the capital stock entitled to vote at the meeting; such
request must state the purpose or purposes of the proposed
meeting. Business transacted at any special meeting of
stockholders shall be limited to matters relating to the purpose
or purposes stated in the notice of meeting.
1.4 Notice of Meetings
Except as otherwise provided by law, written notice of each
meeting of stockholders, whether annual or special, shall be
given not less than ten (10) nor more than sixty (60) days before
the date of the meeting to each stockholder entitled to vote at
such meeting. The notices of all meetings shall state the place,
date and hour of the meeting. The notice of special meeting
shall state, in addition, the purpose or purposes for which the
meeting is called. If mailed, notice is given when deposited in
the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the
corporation.
1.5 Voting List
The officer who has charge of the stock ledger of the
corporation shall prepare, at least ten (10) days before every
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meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours,
for a period of at least ten (10) days prior to the meeting, at a
place within the city where the meeting is to be held. The list
shall also be produced and kept at the time and place of the
meeting during the whole time of the meeting, and may be
inspected by any stockholder who is present.
1.6 Quorum
Except as otherwise provided by law, the Certificate of
Incorporation of these By-Laws, the holders of a majority of the
shares of the capital stock of the corporation issued and
outstanding and entitled to vote at the meeting, present in
person or represented by proxy, shall constitute a quorum for the
transaction of business.
1.7 Adjournments
Any meeting of stockholders may be adjourned to another time
and to any other place at which a meeting of stockholders may be
held under these By-Laws by the stockholders present or
represented at the meeting and entitled to vote, although less
than a quorum, or, if no stockholder is present, by any officer
entitled to preside at or to act as Secretary of such meeting.
It shall not be necessary to notify any stockholder of any
adjournment of less than thirty (30) days if the time and place
of the adjourned meeting are announced at the meeting at which
adjournment is taken, unless after the adjournment a new record
date is fixed for the adjourned meeting, At the adjourned
meeting, the corporation may transact any business which might
have been transacted at the original meeting.
1.8 Voting and Proxies
Each stockholder shall have one (1) vote for each share of
stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless
otherwise provided in the Certificate of Incorporation. Each
stockholder of record entitled to vote at a meeting of
stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may vote or express such
consent or dissent in person or may authorize another person or
persons to vote or act for him by written proxy executed by the
stockholder or his authorized agent and delivered to the
Secretary of the corporation. No such proxy shall be voted or
acted upon after three years from the date of its execution,
unless the proxy expressly provides for a longer period.
1.9 Action at Meeting
When a quorum is present at any meeting, the holders of a
majority of the stock present or represented and voting on a
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matter (or if there are two or more classes of stock entitled to
vote as separate classes, then in the case of each such class,
the holders of a majority of the stock of that class present or
represented and voting on a matter) shall decide any matter to be
voted upon by the stockholders at such meeting, except when a
different vote is required by express provision of law, the
Certificate of Incorporation or these By-Laws. Any election by
stockholders shall be determined by a plurality of the votes cast
by the stockholders entitled to vote at the election.
1.10 Action Without Meeting
Any action required or permitted to be taken at any annual
or special meeting of stockholders of the corporation may be
taken without a meeting, without prior notice and without a vote,
if a consent in writing, setting forth the action so taken, is
signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to
vote on such action were present and voted. Prompt notice of the
taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders
who have not consented in writing.
ARTICLE 2 - Directors
2.1 General Powers
The business and affairs of the corporation shall be managed
by or under the direction of a Board of Directors, who may
exercise all of the powers of the corporation except as otherwise
provided by law, the Certificate of Incorporation or these By-
Laws. In the event of a vacancy in the Board of Directors, the
remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is
filled.
2.2 Number: Election: Tenure and Qualification
The number of directors which shall constitute the whole
Board shall be fixed by resolution of the Board of Directors, the
number to be not fewer than one (1) nor more than ten (10), with
the number currently fixed at three (3). Each director shall be
elected by the stockholders at the annual meeting and shall hold
office until the next annual meeting and until his successor is
elected and qualified, or until his earlier death, resignation or
removal. Directors need not be stockholders of the corporation.
2.3 Enlargement of the Board
The number of the Board of Directors may be increased at any
time by vote of a majority of the directors then in office.
2.4 Vacancies
Unless and until filled by the stockholders, any vacancy in
the Board of Directors, however occurring, including a vacancy
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resulting from an enlargement of the Board, may be filled by vote
of a majority of the directors then in office, although less than
a quorum, or by a sole remaining director. A director elected to
fill a vacancy shall be elected for the unexpired term of his
predecessor in office, or a director chosen to fill a position
resulting from an increase in the number of directors shall hold
office until the next annual meeting of stockholders and until
his successor is elected and qualified, or until his earlier
death, resignation or removal.
2.5 Resignation and Removal
Any director may resign by delivering his written
resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time
or upon the happening of some other event.
Any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors.
2.6 Regular Meetings
Regular meetings of the Board of Directors may be held
without notice at such time and place, within or without the
State of Delaware, as shall be determined from time to time by
the Board of Directors; provided that any director who is absent
when such a determination is made shall be given notice of the
determination. A regular meeting of the Board of Directors may
be held without notice immediately after and at the same place as
the annual meeting of stockholders.
2.7 Special Meetings
Special meetings of the Board of Directors may be held at
any time and place, within or without the State of Delaware,
designated in a call by the Chairman of the board, President, two
or more directors, or by one director in the event that there is
only a single director in office.
2.8 Notice of Special Meetings
Notice of any special meeting of directors shall be given to
each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be given to each
director in person, by telephone or by telegram sent to his
business or home address at least forty-eight (48) hours in
advance of the meeting, or by written notice mailed to his
business or home address at least seventy-two (72) hours in
advance of the meeting. A notice or waiver of notice of a
meeting of the Board of Directors need not specify the purposes
of the meeting.
2.9 Meetings by Telephone Conference Calls
Directors or any members of any committee designated by the
directors may participate in a meeting of the Board of Directors
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or such committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation by such means shall constitute presence in persons
at such meeting.
2.10 Quorum
A majority of the number of directors fixed pursuant to
Section 2.2 shall constitute a quorum at all meetings of the
Board of Directors. In the event one or more of the directors
shall be disqualified to vote at any meeting, then the required
quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than
one-third (1/3) of the number so fixed constitute a quorum. In
the absence of a quorum at any such meeting, a majority of the
directors present may adjourn the meeting from time to time
without further notice other than announcement at the meeting,
until a quorum shall be present.
2.11 Action at Meeting
At any meeting of the Board of Directors at which quorum is
present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is
specified by law, the Certificate of Incorporation or these By-
Laws.
2.12 Action by Consent
Any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting, of all members of the
Board or committee, as the case may be, consent to the action in
writing, and the written consents are filed with the minutes of
proceedings of the Board or committee.
2.13 Removal
Any one or more or all of the directors may be removed, with
or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
2.14 Committees
The Board of Directors may, be resolution passed by a
majority of the whole Board, designate one or more committees,
each committee to consist of one or more of the directors of the
corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the
member or members of the committee present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent
or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors and subject
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to the provisions of the General Corporation Law of the State of
Delaware, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the
business and affairs of the corporation and may authorize the
seal of the corporation to be affixed to all papers which may
require it. Each such committee shall keep minutes and make such
reports as the Board of Directors may from time to time request.
Except as the Board of Directors may otherwise determine, any
committee may make rules for the conduct of its business, but
unless otherwise provided by the directors in such rules, its
business shall be conducted as nearly as possible in the same
manner as is provided in these By-Laws for the Board of
Directors.
2.15 Compensation of Directors
Directors may be paid such compensation for their services
and such reimbursement for expenses of attendance at meetings as
the Board of Directors may from time to time determine. No such
payment shall preclude any director from serving the corporation
or any of its parent of subsidiary corporations in any other
capacity and receiving compensation for such service.
ARTICLE 3 - Officers
3.1 Enumeration
The officers of the corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with
such other titles as the Board of Directors shall determine,
including a Chairman of the Board, a Vice Chairman of the Board,
and one or more Vice Presidents, Assistant Treasurers and
Assistant Secretaries. The Board of Directors may appoint such
other officers as it may deem appropriate.
3.2 Election
The President, Treasurer and Secretary shall be elected
annually by the Board of Directors at its first meeting following
the annual meeting of stockholders. Other officers may be
appointed by the Board of Directors at such meeting or at any
other meeting.
3.3 Qualification
The President need not be a director. No officer need be a
stockholder. Any two or more offices may be held by the same
person.
3.4 Tenure
Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, each officer shall hold office
until his successor is elected and qualified, unless a different
term is specified in the vote choosing or appointing him, or
until his earlier death, resignation or removal.
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3.5 Resignation and Removal
Any officer may resign by delivering his written resignation
to the corporation at its principal office or to the President or
or Secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon
the happening of some other event.
Board of Directors, or a committee duly authorized to do so,
may remove any officer with or without cause. Except as the
Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as
an officer for any period following his resignation or removal,
or any right to damages on account of such removal, whether his
compensation be by month or by the year or otherwise, unless such
compensation is expressly provided in a duly authorized written
agreement with the corporation.
3.6 Vacancies
The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled
for such period as it may determine any offices other than those
of President, Treasurer and Secretary. Each such successor shall
hold office for the unexpired term of his predecessor and until
his successor is elected and qualified, or until his earlier
death, resignation or removal.
3.7 Chairman of the Board and Vice-Chairman of the Board
If the Board of Directors appoints a Chairman of the Board,
he shall, when present, preside at all meetings of the Board of
Directors. He shall perform such duties and possess such powers
as are usually vested in the office of the Chairman of the Board
or as may be vested in him by the Board of Directors. If the
Board of Directors appoints a Vice-Chairman of the Board, he
shall, in the absence or disability of the Chairman of the Board,
perform the duties and exercise the powers of the Chairman of the
Board and shall perform such other duties and possess such other
powers as may from time to time be vested in him by the Board of
Directors.
3.8 President
The President shall be the chief operating officer of the
corporation. He shall also be the chief executive officer of the
corporation unless such title is assigned to a Chairman of the
Board. The President shall, subject to the direction of the
Board of Directors, have general supervision and control of the
business of the corporation. Unless otherwise provided by the
directors, he shall preside at all meetings of the stockholders
and of the Board of Directors (except as provided in Section 3.7
above). The President shall perform such other duties and shall
have such other powers as the Board of Directors may from time to
time prescribe.
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3.9 Vice Presidents
Any Vice President shall perform such duties and possess
such powers as the Board of Directors or the President may from
time to time prescribe. In the event of the absence, inability,
or refusal to act of the President, the Vice President (or if
there shall be more than one, the Vice Presidents in the order
determined by the Board of Directors) shall perform the duties of
the President and when so performing shall have all the powers of
and be subject to all the restrictions upon the President. The
Board of Directors may assign to any Vice President the title of
Executive Vice President, Senior Vice President or any other
title selected by the Board of Directors.
3.10 Secretary and Assistant Secretaries
The Secretary shall perform such duties and shall have such
powers as the Board of Directors or the President may from time
to time prescribe. In addition, the Secretary shall perform such
duties and have such powers as are incident to the office of the
secretary, including without limitation the duty and power to
give notices of all meetings of stockholders and special meetings
of the board of Directors, to attend all meetings of stockholders
and the Board of Directors and keep a record of the proceedings,
to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records
and the corporate seal and to affix and attest to the same on
documents.
Any Assistant Secretary shall perform such duties and posses
such powers as the Board of Directors, the President or the
Secretary may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Secretary, the
Assistant Secretary, (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of
the Secretary.
In the absence of the Secretary or any Assistant Secretary
at any meeting of stockholders or directors, the person presiding
at the meeting shall designate a temporary secretary to keep, a
record of the meeting.
3.11 Treasurer and Assistant Treasurers
The Treasurer shall perform such duties and shall have such
powers as may from time to time be assigned to him by the Board
of Directors or the President. In addition, the Treasurer shall
perform such duties and have such powers as are incident to the
office of treasurer, including without limitation the duty and
power to keep and be responsible for all funds and securities of
the corporation, to deposit funds of the corporation in
depositories selected in accordance with these By-Laws, to
disburse such funds as ordered by the Board of Directors, to make
proper accounts of such funds, and to render as required by the
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Board of Directors statements of all such transactions and of the
financial condition of the corporation.
The Assistant Treasurers shall perform such duties and
possess such powers as the Board of Directors, the President or
the Treasurer may from time to time prescribe. In the event of
the absence, inability or refusal to act of the Treasurer, the
Assistant Treasurer, (or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of
the Treasurer.
3.12 Bonded Officers
The Board of Directors may require any officer to give the
corporation a bond in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors upon such
terms and conditions as the Board of Directors may specify,
including without limitation a bond for the faithful performance
of his duties and for the restoration to the corporation of all
property in his possession or under his control belonging to the
corporation.
3.13 Salaries
Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or
allowed from time to time by the Board of Directors.
ARTICLE 4 - Capital Stock
4.1 Issuance of Stock
Unless otherwise voted by the stockholders and subject to
the provisions of the Certificate of Incorporation, the whole or
any part of any unissued balance of the authorized capital stock
of the corporation or the whole or any of any unissued balance of
the authorized capital stock of the corporation held in its
treasury may be issued, sold, transferred or otherwise disposed
of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may
determine.
4.2 Certificates of Stock
Every holder of stock of the corporation shall be entitled
to have a certificate, in such form as may be prescribed by law
and by the Board of Directors certifying the number and class of
shares owned by him in the corporation. Each such certificate
shall be signed by, or in the name of the corporation by, the
Chairman or Vice-Chairman, if any, of the Board of Directors, or
the President or a Vice President, and the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary
of the corporation. Any or all of the signatures on the
certificate may be a facsimile.
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Each certificate for shares of stock which are subject to
any restriction on transfer pursuant to the Certificate of
Incorporation, the By-Laws, applicable securities laws or any
agreement among any number of shareholders or among such holders
and the corporation shall have conspicuously noted on the face or
back of the certificate either the full text of the restriction
or a statement of the existence of such restriction.
4.3 Transfers
Subject to the restrictions, if any, stated or noted on the
stock certificates, shares of stock may be transferred on the
books of the corporation by the surrender to the corporation of
its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power
of attorney properly executed, and with such proof of authority
or the authenticity of signature as the corporation or its
transfer agent may reasonably require. Except as may be
otherwise required by law, by the Certificate of Incorporation or
by these By-Laws, the corporation shall be entitled to treat the
record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and
the right to vote with respect to such stock, regardless of any
transfer, pledge or other disposition of such stock until the
shares have been transferred on the books of the corporation in
accordance with the requirements of these By-Laws.
4.4 Lost, Stolen or Destroyed Certificates
The corporation may issue a new certificate of stock in
place of any previously issued certificate alleged to have been
lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of
reasonable evidence of such loss, theft or destruction and the
giving of such indemnity as the Board of Directors may require
for the protection of the corporation or any transfer agent or
registrar.
4.5 Record Date
The Board of Directors may fix in advance a date as a record
date for the determination of the stockholders entitled to notice
of or to vote at any meeting of stockholders or to express
consent (or dissent) to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other
lawful action. Such record date shall not be more than 60 nor
less than 10 days before the date of such meeting, nor more than
60 days prior to any other action to which such record date
releases.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day before
the day on which notice is given, or, if notice is waived, at the
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close of business on the day before the day on which the meeting
is held. The record date for determining stockholders entitled
to express consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is
expressed. The record date for determining stockholders for any
other purpose shall be at the close of business on the day on
which the Board of Directors adopts the resolution relating to
such purpose.
A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
ARTICLE 5 - Indemnification
The corporation shall, to the fullest extent permitted by
Section 145 or the General Corporation Law of Delaware, as that
section may be amended and supplemented from time to time,
indemnify any director, officer or trustee which it shall have
power to indemnify under the section against any expenses,
liabilities or other matters referred to in or covered by that
section. The indemnification provided for in this Article (i)
shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any by-law, agreement or vote
of stockholders or disinterested directors or otherwise, both as
to action in their official capacities and as to action in
another capacity while holding such office, (ii) shall continue
as to a person who has ceased to be a director, officer or
trustee and (iii) shall inure to the benefit of the heirs,
executors and administrators of such a person. The corporation's
obligation to provide indemnification under this Article shall be
offset to the extent of any other source of indemnification or
any otherwise applicable insurance coverage under a policy
maintained by the corporation or any other person.
Expenses incurred by a director of the Corporation in
defending a civil or criminal action, suit or proceeding by
reason of the fact that he is or was a director of the
Corporation (or was serving at the Company's request as a
director or officer of another corporation) shall be paid by the
corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of such director to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Corporation as authorized by relevant sections of the general
Corporation Law of Delaware.
To assure indemnification under this Article of all such
persons who are determined by the corporation or otherwise to be
or to have been "fiduciaries" of any employee benefit plan of the
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corporation which may exist from time to time, such section 145
shall, for the purposes of this Article, be interpreted as
follows: an "other enterprise" shall be deemed to include such
an employee benefit plan, including, without limitation, any plan
of the corporation which is governed by the Act of Congress
entitled "Employee Retirement Income Security Act of 1974," as
amended from time to time; the corporation shall be deemed to
have requested a person to serve an employee benefit plan where
the performance by such person of his duties to the corporation
also imposes duties on, or otherwise involves services by, such
person to the plan or participants or beneficiaries of the plan;
excise taxes assessed on a person with respect to an employee
benefit plan pursuant to such Act of Congress shall be deemed
"fines"; and action taken or omitted by a person with respect to
an employee benefit plan in the performance of such person's
duties for a purpose reasonably believed by such person to be in
the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the
best interest of the corporation.
ARTICLE 6 - General Provisions
6.1 Fiscal Year
Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall
begin on the 1st day of January in each year and end on the 31st
day of December in each year.
6.2 Corporate Seal
The corporate seal shall be in such form as shall be
approved by the Board of Directors.
6.3 Execution of instruments
The President or the Treasurer shall have power to execute
and deliver on behalf and in the name of the corporation any
instrument requiring the signature of an officer of the
corporation, except as otherwise provided in these By-Laws, or
where the execution and delivery of such an instrument shall be
expressly delegated by the Board of Directors to some other
officer or agent of the corporation.
6.4 Waiver of Notice
Whenever any notice whatsoever is required to be given by
law, by the Certificate of Incorporation or by these By-Laws, a
waiver of such notice either in writing signed by the person
entitled to such notice or such person's duly authorized
attorney, or by telegraph, cable or any other available method,
whether before, at or after the time stated in such waiver, or
the appearance of such person or persons at such meeting in
person or by proxy, shall be deemed equivalent to such notice.
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6.5 Voting of Securities
Except as the directors may otherwise designate, the
President or Treasurer may waive notice of, and act as, or
appoint any person or persons to act as, proxy or attorney-in-
fact for this corporation (with or without power of substitution)
at, any meeting of stockholders or shareholders of any other
corporation or organization, the securities of which may be held
by this corporation.
6.6 Evidence of Authority
A certificate by the Secretary, or an Assistant Secretary,
or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or
representative of the corporation shall as to all persons who
rely on the certificate in good faith be conclusive evidence of
such action.
6.7 Certificate of Incorporation
All references in these By-Laws to the Certificate of
Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from
time to time.
6.8 Transactions with Interested Parties
No contract or transaction between the corporation and one
or more of the directors or officers, or between the corporation
and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors or a committee of the Board of
Directors which authorizes the contract or transaction or solely
because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board or
committee in good faith authorizes the contract or transaction by
the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a
quorum;
(2) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee of the Board of
Directors, or the stockholders.
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Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors
or of a committee which authorizes the contract or transaction.
6.9 Severability
Any determination that any provision of these By-Laws is for
any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these By-Laws.
6.10 Pronouns
All pronouns used in these By-Laws shall be deemed to refer
to the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons may require.
ARTICLE 7 - Amendments
7.1 By the Board of Directors. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the
affirmative vote of a majority of the directors present at any
regular or special meeting of the Board of Directors at which a
quorum is present.
7.2 By the Stockholders
These By-Laws may be altered, amended or repealed or new by-
laws may be adopted by the affirmative vote of the holders of a
majority of the shares of the capital stock of the corporation
issued and outstanding and entitled to vote at any regular
meeting of stockholders, or at any special meeting of
stockholders, provided notice of such alteration, amendment,
repeal or adoption of new By-Laws shall have been stated in the
notice of such special meeting.
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Exhibit B-74
BY-LAWS
OF
NCP DADE POWER INCORPORATED
ARTICLE I - Stockholders
1.1 Place of Meetings
All meetings of the stockholders shall be held at such
place within or without the State of Delaware as may be
designated from time to time by the Board of Directors or the
President or, if not so designated, at the registered office of
the corporation.
1.2 Annual Meeting
The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may
properly be brought before the meeting shall be held on the
second Wednesday in November of each year beginning in the year
1994, at a time fixed by the Board of Directors or the President.
If this date shall fall upon a legal holiday at the place of the
meeting, then such meeting shall be held on the next succeeding
business day at the same hour. If no annual meeting is held in
accordance with the foregoing provisions, the Board of Directors
shall cause the meeting to be held as soon thereafter as
convenient.
1.3 Special Meetings
Special meetings of stockholders may be called at any
time by the President or by the Board of Directors. Special
meetings of stockholders shall be called by the President or
Secretary upon the written request of one ore more stockholders
who hold in the aggregate at least ten percent (10%) of the
shares of the capital stock entitled to vote at the meeting; such
request must state the purpose or purposes of the proposed
meeting. Business transacted at any special meeting of
stockholders shall be limited to matters relating to the purpose
or purposes stated in the notice of meeting.
1.4 Notice of Meetings
Except as otherwise provided by law, written notice of each
meeting of stockholders, whether annual or special, shall be
given not less than ten (10) nor more than sixty (60) days before
the date of the meeting to each stockholder entitled to vote at
such meeting. The notices of all meetings shall state the place,
date and hour of the meeting. The notice of special meeting
shall state, in addition, the purpose or purposes for which the
meeting is called. If mailed, notice is given when deposited in
the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the
corporation.
1.5 Voting List
The officer who has charge of the stock ledger of the
corporation shall prepare, at least ten (10) days before every
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meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours,
for a period of at least ten (10) days prior to the meeting, at a
place within the city where the meeting is to be held. The list
shall also be produced and kept at the time and place of the
meeting during the whole time of the meeting, and may be
inspected by any stockholder who is present.
1.6 Quorum
Except as otherwise provided by law, the Certificate of
Incorporation of these By-Laws, the holders of a majority of the
shares of the capital stock of the corporation issued and
outstanding and entitled to vote at the meeting, present in
person or represented by proxy, shall constitute a quorum for the
transaction of business.
1.7 Adjournments
Any meeting of stockholders may be adjourned to another time
and to any other place at which a meeting of stockholders may be
held under these By-Laws by the stockholders present or
represented at the meeting and entitled to vote, although less
than a quorum, or, if no stockholder is present, by any officer
entitled to preside at or to act as Secretary of such meeting.
It shall not be necessary to notify any stockholder of any
adjournment of less than thirty (30) days if the time and place
of the adjourned meeting are announced at the meeting at which
adjournment is taken, unless after the adjournment a new record
date is fixed for the adjourned meeting, At the adjourned
meeting, the corporation may transact any business which might
have been transacted at the original meeting.
1.8 Voting and Proxies
Each stockholder shall have one (1) vote for each share of
stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless
otherwise provided in the Certificate of Incorporation. Each
stockholder of record entitled to vote at a meeting of
stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may vote or express such
consent or dissent in person or may authorize another person or
persons to vote or act for him by written proxy executed by the
stockholder or his authorized agent and delivered to the
Secretary of the corporation. No such proxy shall be voted or
acted upon after three years from the date of its execution,
unless the proxy expressly provides for a longer period.
1.9 Action at Meeting
When a quorum is present at any meeting, the holders of a
majority of the stock present or represented and voting on a
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matter (or if there are two or more classes of stock entitled to
vote as separate classes, then in the case of each such class,
the holders of a majority of the stock of that class present or
represented and voting on a matter) shall decide any matter to be
voted upon by the stockholders at such meeting, except when a
different vote is required by express provision of law, the
Certificate of Incorporation or these By-Laws. Any election by
stockholders shall be determined by a plurality of the votes cast
by the stockholders entitled to vote at the election.
1.10 Action Without Meeting
Any action required or permitted to be taken at any annual
or special meeting of stockholders of the corporation may be
taken without a meeting, without prior notice and without a vote,
if a consent in writing, setting forth the action so taken, is
signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to
vote on such action were present and voted. Prompt notice of the
taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders
who have not consented in writing.
ARTICLE 2 - Directors
2.1 General Powers
The business and affairs of the corporation shall be managed
by or under the direction of a Board of Directors, who may
exercise all of the powers of the corporation except as otherwise
provided by law, the Certificate of Incorporation or these By-
Laws. In the event of a vacancy in the Board of Directors, the
remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is
filled.
2.2 Number: Election: Tenure and Qualification
The number of directors which shall constitute the whole
Board shall be fixed by resolution of the Board of Directors, the
number to be not fewer than one (1) nor more than ten (10), with
the number currently fixed at three (3). Each director shall be
elected by the stockholders at the annual meeting and shall hold
office until the next annual meeting and until his successor is
elected and qualified, or until his earlier death, resignation or
removal. Directors need not be stockholders of the corporation.
2.3 Enlargement of the Board
The number of the Board of Directors may be increased at any
time by vote of a majority of the directors then in office.
2.4 Vacancies
Unless and until filled by the stockholders, any vacancy in
the Board of Directors, however occurring, including a vacancy
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resulting from an enlargement of the Board, may be filled by vote
of a majority of the directors then in office, although less than
a quorum, or by a sole remaining director. A director elected to
fill a vacancy shall be elected for the unexpired term of his
predecessor in office, or a director chosen to fill a position
resulting from an increase in the number of directors shall hold
office until the next annual meeting of stockholders and until
his successor is elected and qualified, or until his earlier
death, resignation or removal.
2.5 Resignation and Removal
Any director may resign by delivering his written
resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time
or upon the happening of some other event.
Any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors.
2.6 Regular Meetings
Regular meetings of the Board of Directors may be held
without notice at such time and place, within or without the
State of Delaware, as shall be determined from time to time by
the Board of Directors; provided that any director who is absent
when such a determination is made shall be given notice of the
determination. A regular meeting of the Board of Directors may
be held without notice immediately after and at the same place as
the annual meeting of stockholders.
2.7 Special Meetings
Special meetings of the Board of Directors may be held at
any time and place, within or without the State of Delaware,
designated in a call by the Chairman of the board, President, two
or more directors, or by one director in the event that there is
only a single director in office.
2.8 Notice of Special Meetings
Notice of any special meeting of directors shall be given to
each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be given to each
director in person, by telephone or by telegram sent to his
business or home address at least forty-eight (48) hours in
advance of the meeting, or by written notice mailed to his
business or home address at least seventy-two (72) hours in
advance of the meeting. A notice or waiver of notice of a
meeting of the Board of Directors need not specify the purposes
of the meeting.
2.9 Meetings by Telephone Conference Calls
Directors or any members of any committee designated by the
directors may participate in a meeting of the Board of Directors
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or such committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation by such means shall constitute presence in persons
at such meeting.
2.10 Quorum
A majority of the number of directors fixed pursuant to
Section 2.2 shall constitute a quorum at all meetings of the
Board of Directors. In the event one or more of the directors
shall be disqualified to vote at any meeting, then the required
quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than
one-third (1/3) of the number so fixed constitute a quorum. In
the absence of a quorum at any such meeting, a majority of the
directors present may adjourn the meeting from time to time
without further notice other than announcement at the meeting,
until a quorum shall be present.
2.11 Action at Meeting
At any meeting of the Board of Directors at which quorum is
present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is
specified by law, the Certificate of Incorporation or these By-
Laws.
2.12 Action by Consent
Any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting, of all members of the
Board or committee, as the case may be, consent to the action in
writing, and the written consents are filed with the minutes of
proceedings of the Board or committee.
2.13 Removal
Any one or more or all of the directors may be removed, with
or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
2.14 Committees
The Board of Directors may, be resolution passed by a
majority of the whole Board, designate one or more committees,
each committee to consist of one or more of the directors of the
corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the
member or members of the committee present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent
or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors and subject
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to the provisions of the General Corporation Law of the State of
Delaware, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the
business and affairs of the corporation and may authorize the
seal of the corporation to be affixed to all papers which may
require it. Each such committee shall keep minutes and make such
reports as the Board of Directors may from time to time request.
Except as the Board of Directors may otherwise determine, any
committee may make rules for the conduct of its business, but
unless otherwise provided by the directors in such rules, its
business shall be conducted as nearly as possible in the same
manner as is provided in these By-Laws for the Board of
Directors.
2.15 Compensation of Directors
Directors may be paid such compensation for their services
and such reimbursement for expenses of attendance at meetings as
the Board of Directors may from time to time determine. No such
payment shall preclude any director from serving the corporation
or any of its parent of subsidiary corporations in any other
capacity and receiving compensation for such service.
ARTICLE 3 - Officers
3.1 Enumeration
The officers of the corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with
such other titles as the Board of Directors shall determine,
including a Chairman of the Board, a Vice Chairman of the Board,
and one or more Vice Presidents, Assistant Treasurers and
Assistant Secretaries. The Board of Directors may appoint such
other officers as it may deem appropriate.
3.2 Election
The President, Treasurer and Secretary shall be elected
annually by the Board of Directors at its first meeting following
the annual meeting of stockholders. Other officers may be
appointed by the Board of Directors at such meeting or at any
other meeting.
3.3 Qualification
The President need not be a director. No officer need be a
stockholder. Any two or more offices may be held by the same
person.
3.4 Tenure
Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, each officer shall hold office
until his successor is elected and qualified, unless a different
term is specified in the vote choosing or appointing him, or
until his earlier death, resignation or removal.
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3.5 Resignation and Removal
Any officer may resign by delivering his written resignation
to the corporation at its principal office or to the President or
or Secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon
the happening of some other event.
Board of Directors, or a committee duly authorized to do so,
may remove any officer with or without cause. Except as the
Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as
an officer for any period following his resignation or removal,
or any right to damages on account of such removal, whether his
compensation be by month or by the year or otherwise, unless such
compensation is expressly provided in a duly authorized written
agreement with the corporation.
3.6 Vacancies
The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled
for such period as it may determine any offices other than those
of President, Treasurer and Secretary. Each such successor shall
hold office for the unexpired term of his predecessor and until
his successor is elected and qualified, or until his earlier
death, resignation or removal.
3.7 Chairman of the Board and Vice-Chairman of the Board
If the Board of Directors appoints a Chairman of the Board,
he shall, when present, preside at all meetings of the Board of
Directors. He shall perform such duties and possess such powers
as are usually vested in the office of the Chairman of the Board
or as may be vested in him by the Board of Directors. If the
Board of Directors appoints a Vice-Chairman of the Board, he
shall, in the absence or disability of the Chairman of the Board,
perform the duties and exercise the powers of the Chairman of the
Board and shall perform such other duties and possess such other
powers as may from time to time be vested in him by the Board of
Directors.
3.8 President
The President shall be the chief operating officer of the
corporation. He shall also be the chief executive officer of the
corporation unless such title is assigned to a Chairman of the
Board. The President shall, subject to the direction of the
Board of Directors, have general supervision and control of the
business of the corporation. Unless otherwise provided by the
directors, he shall preside at all meetings of the stockholders
and of the Board of Directors (except as provided in Section 3.7
above). The President shall perform such other duties and shall
have such other powers as the Board of Directors may from time to
time prescribe.
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3.9 Vice Presidents
Any Vice President shall perform such duties and possess
such powers as the Board of Directors or the President may from
time to time prescribe. In the event of the absence, inability,
or refusal to act of the President, the Vice President (or if
there shall be more than one, the Vice Presidents in the order
determined by the Board of Directors) shall perform the duties of
the President and when so performing shall have all the powers of
and be subject to all the restrictions upon the President. The
Board of Directors may assign to any Vice President the title of
Executive Vice President, Senior Vice President or any other
title selected by the Board of Directors.
3.10 Secretary and Assistant Secretaries
The Secretary shall perform such duties and shall have such
powers as the Board of Directors or the President may from time
to time prescribe. In addition, the Secretary shall perform such
duties and have such powers as are incident to the office of the
secretary, including without limitation the duty and power to
give notices of all meetings of stockholders and special meetings
of the board of Directors, to attend all meetings of stockholders
and the Board of Directors and keep a record of the proceedings,
to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records
and the corporate seal and to affix and attest to the same on
documents.
Any Assistant Secretary shall perform such duties and posses
such powers as the Board of Directors, the President or the
Secretary may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Secretary, the
Assistant Secretary, (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of
the Secretary.
In the absence of the Secretary or any Assistant Secretary
at any meeting of stockholders or directors, the person presiding
at the meeting shall designate a temporary secretary to keep, a
record of the meeting.
3.11 Treasurer and Assistant Treasurers
The Treasurer shall perform such duties and shall have such
powers as may from time to time be assigned to him by the Board
of Directors or the President. In addition, the Treasurer shall
perform such duties and have such powers as are incident to the
office of treasurer, including without limitation the duty and
power to keep and be responsible for all funds and securities of
the corporation, to deposit funds of the corporation in
depositories selected in accordance with these By-Laws, to
disburse such funds as ordered by the Board of Directors, to make
proper accounts of such funds, and to render as required by the
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Board of Directors statements of all such transactions and of the
financial condition of the corporation.
The Assistant Treasurers shall perform such duties and
possess such powers as the Board of Directors, the President or
the Treasurer may from time to time prescribe. In the event of
the absence, inability or refusal to act of the Treasurer, the
Assistant Treasurer, (or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of
the Treasurer.
3.12 Bonded Officers
The Board of Directors may require any officer to give the
corporation a bond in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors upon such
terms and conditions as the Board of Directors may specify,
including without limitation a bond for the faithful performance
of his duties and for the restoration to the corporation of all
property in his possession or under his control belonging to the
corporation.
3.13 Salaries
Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or
allowed from time to time by the Board of Directors.
ARTICLE 4 - Capital Stock
4.1 Issuance of Stock
Unless otherwise voted by the stockholders and subject to
the provisions of the Certificate of Incorporation, the whole or
any part of any unissued balance of the authorized capital stock
of the corporation or the whole or any of any unissued balance of
the authorized capital stock of the corporation held in its
treasury may be issued, sold, transferred or otherwise disposed
of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may
determine.
4.2 Certificates of Stock
Every holder of stock of the corporation shall be entitled
to have a certificate, in such form as may be prescribed by law
and by the Board of Directors certifying the number and class of
shares owned by him in the corporation. Each such certificate
shall be signed by, or in the name of the corporation by, the
Chairman or Vice-Chairman, if any, of the Board of Directors, or
the President or a Vice President, and the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary
of the corporation. Any or all of the signatures on the
certificate may be a facsimile.
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Each certificate for shares of stock which are subject to
any restriction on transfer pursuant to the Certificate of
Incorporation, the By-Laws, applicable securities laws or any
agreement among any number of shareholders or among such holders
and the corporation shall have conspicuously noted on the face or
back of the certificate either the full text of the restriction
or a statement of the existence of such restriction.
4.3 Transfers
Subject to the restrictions, if any, stated or noted on the
stock certificates, shares of stock may be transferred on the
books of the corporation by the surrender to the corporation of
its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power
of attorney properly executed, and with such proof of authority
or the authenticity of signature as the corporation or its
transfer agent may reasonably require. Except as may be
otherwise required by law, by the Certificate of Incorporation or
by these By-Laws, the corporation shall be entitled to treat the
record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and
the right to vote with respect to such stock, regardless of any
transfer, pledge or other disposition of such stock until the
shares have been transferred on the books of the corporation in
accordance with the requirements of these By-Laws.
4.4 Lost, Stolen or Destroyed Certificates
The corporation may issue a new certificate of stock in
place of any previously issued certificate alleged to have been
lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of
reasonable evidence of such loss, theft or destruction and the
giving of such indemnity as the Board of Directors may require
for the protection of the corporation or any transfer agent or
registrar.
4.5 Record Date
The Board of Directors may fix in advance a date as a record
date for the determination of the stockholders entitled to notice
of or to vote at any meeting of stockholders or to express
consent (or dissent) to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other
lawful action. Such record date shall not be more than 60 nor
less than 10 days before the date of such meeting, nor more than
60 days prior to any other action to which such record date
releases.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day before
the day on which notice is given, or, if notice is waived, at the
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close of business on the day before the day on which the meeting
is held. The record date for determining stockholders entitled
to express consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is
expressed. The record date for determining stockholders for any
other purpose shall be at the close of business on the day on
which the Board of Directors adopts the resolution relating to
such purpose.
A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
ARTICLE 5 - Indemnification
The corporation shall, to the fullest extent permitted by
Section 145 or the General Corporation Law of Delaware, as that
section may be amended and supplemented from time to time,
indemnify any director, officer or trustee which it shall have
power to indemnify under the section against any expenses,
liabilities or other matters referred to in or covered by that
section. The indemnification provided for in this Article (i)
shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any by-law, agreement or vote
of stockholders or disinterested directors or otherwise, both as
to action in their official capacities and as to action in
another capacity while holding such office, (ii) shall continue
as to a person who has ceased to be a director, officer or
trustee and (iii) shall inure to the benefit of the heirs,
executors and administrators of such a person. The corporation's
obligation to provide indemnification under this Article shall be
offset to the extent of any other source of indemnification or
any otherwise applicable insurance coverage under a policy
maintained by the corporation or any other person.
Expenses incurred by a director of the Corporation in
defending a civil or criminal action, suit or proceeding by
reason of the fact that he is or was a director of the
Corporation (or was serving at the Company's request as a
director or officer of another corporation) shall be paid by the
corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of such director to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Corporation as authorized by relevant sections of the general
Corporation Law of Delaware.
To assure indemnification under this Article of all such
persons who are determined by the corporation or otherwise to be
or to have been "fiduciaries" of any employee benefit plan of the
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corporation which may exist from time to time, such section 145
shall, for the purposes of this Article, be interpreted as
follows: an "other enterprise" shall be deemed to include such
an employee benefit plan, including, without limitation, any plan
of the corporation which is governed by the Act of Congress
entitled "Employee Retirement Income Security Act of 1974," as
amended from time to time; the corporation shall be deemed to
have requested a person to serve an employee benefit plan where
the performance by such person of his duties to the corporation
also imposes duties on, or otherwise involves services by, such
person to the plan or participants or beneficiaries of the plan;
excise taxes assessed on a person with respect to an employee
benefit plan pursuant to such Act of Congress shall be deemed
"fines"; and action taken or omitted by a person with respect to
an employee benefit plan in the performance of such person's
duties for a purpose reasonably believed by such person to be in
the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the
best interest of the corporation.
ARTICLE 6 - General Provisions
6.1 Fiscal Year
Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall
begin on the 1st day of January in each year and end on the 31st
day of December in each year.
6.2 Corporate Seal
The corporate seal shall be in such form as shall be
approved by the Board of Directors.
6.3 Execution of instruments
The President or the Treasurer shall have power to execute
and deliver on behalf and in the name of the corporation any
instrument requiring the signature of an officer of the
corporation, except as otherwise provided in these By-Laws, or
where the execution and delivery of such an instrument shall be
expressly delegated by the Board of Directors to some other
officer or agent of the corporation.
6.4 Waiver of Notice
Whenever any notice whatsoever is required to be given by
law, by the Certificate of Incorporation or by these By-Laws, a
waiver of such notice either in writing signed by the person
entitled to such notice or such person's duly authorized
attorney, or by telegraph, cable or any other available method,
whether before, at or after the time stated in such waiver, or
the appearance of such person or persons at such meeting in
person or by proxy, shall be deemed equivalent to such notice.
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6.5 Voting of Securities
Except as the directors may otherwise designate, the
President or Treasurer may waive notice of, and act as, or
appoint any person or persons to act as, proxy or attorney-in-
fact for this corporation (with or without power of substitution)
at, any meeting of stockholders or shareholders of any other
corporation or organization, the securities of which may be held
by this corporation.
6.6 Evidence of Authority
A certificate by the Secretary, or an Assistant Secretary,
or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or
representative of the corporation shall as to all persons who
rely on the certificate in good faith be conclusive evidence of
such action.
6.7 Certificate of Incorporation
All references in these By-Laws to the Certificate of
Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from
time to time.
6.8 Transactions with Interested Parties
No contract or transaction between the corporation and one
or more of the directors or officers, or between the corporation
and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors or a committee of the Board of
Directors which authorizes the contract or transaction or solely
because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board or
committee in good faith authorizes the contract or transaction by
the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a
quorum;
(2) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee of the Board of
Directors, or the stockholders.
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Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors
or of a committee which authorizes the contract or transaction.
6.9 Severability
Any determination that any provision of these By-Laws is for
any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these By-Laws.
6.10 Pronouns
All pronouns used in these By-Laws shall be deemed to refer
to the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons may require.
ARTICLE 7 - Amendments
7.1 By the Board of Directors. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the
affirmative vote of a majority of the directors present at any
regular or special meeting of the Board of Directors at which a
quorum is present.
7.2 By the Stockholders
These By-Laws may be altered, amended or repealed or new by-
laws may be adopted by the affirmative vote of the holders of a
majority of the shares of the capital stock of the corporation
issued and outstanding and entitled to vote at any regular
meeting of stockholders, or at any special meeting of
stockholders, provided notice of such alteration, amendment,
repeal or adoption of new By-Laws shall have been stated in the
notice of such special meeting.
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Exhibit B-75
BY-LAWS
OF
NCP PASCO INCORPORATED
ARTICLE I - Stockholders
1.1 Place of Meetings
All meetings of the stockholders shall be held at such
place within or without the State of Delaware as may be
designated from time to time by the Board of Directors or the
President or, if not so designated, at the registered office of
the corporation.
1.2 Annual Meeting
The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may
properly be brought before the meeting shall be held on the
second Wednesday in November of each year beginning in the year
1994, at a time fixed by the Board of Directors or the President.
If this date shall fall upon a legal holiday at the place of the
meeting, then such meeting shall be held on the next succeeding
business day at the same hour. If no annual meeting is held in
accordance with the foregoing provisions, the Board of Directors
shall cause the meeting to be held as soon thereafter as
convenient.
1.3 Special Meetings
Special meetings of stockholders may be called at any
time by the President or by the Board of Directors. Special
meetings of stockholders shall be called by the President or
Secretary upon the written request of one ore more stockholders
who hold in the aggregate at least ten percent (10%) of the
shares of the capital stock entitled to vote at the meeting; such
request must state the purpose or purposes of the proposed
meeting. Business transacted at any special meeting of
stockholders shall be limited to matters relating to the purpose
or purposes stated in the notice of meeting.
1.4 Notice of Meetings
Except as otherwise provided by law, written notice of each
meeting of stockholders, whether annual or special, shall be
given not less than ten (10) nor more than sixty (60) days before
the date of the meeting to each stockholder entitled to vote at
such meeting. The notices of all meetings shall state the place,
date and hour of the meeting. The notice of special meeting
shall state, in addition, the purpose or purposes for which the
meeting is called. If mailed, notice is given when deposited in
the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the
corporation.
1.5 Voting List
The officer who has charge of the stock ledger of the
corporation shall prepare, at least ten (10) days before every
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meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours,
for a period of at least ten (10) days prior to the meeting, at a
place within the city where the meeting is to be held. The list
shall also be produced and kept at the time and place of the
meeting during the whole time of the meeting, and may be
inspected by any stockholder who is present.
1.6 Quorum
Except as otherwise provided by law, the Certificate of
Incorporation of these By-Laws, the holders of a majority of the
shares of the capital stock of the corporation issued and
outstanding and entitled to vote at the meeting, present in
person or represented by proxy, shall constitute a quorum for the
transaction of business.
1.7 Adjournments
Any meeting of stockholders may be adjourned to another time
and to any other place at which a meeting of stockholders may be
held under these By-Laws by the stockholders present or
represented at the meeting and entitled to vote, although less
than a quorum, or, if no stockholder is present, by any officer
entitled to preside at or to act as Secretary of such meeting.
It shall not be necessary to notify any stockholder of any
adjournment of less than thirty (30) days if the time and place
of the adjourned meeting are announced at the meeting at which
adjournment is taken, unless after the adjournment a new record
date is fixed for the adjourned meeting, At the adjourned
meeting, the corporation may transact any business which might
have been transacted at the original meeting.
1.8 Voting and Proxies
Each stockholder shall have one (1) vote for each share of
stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless
otherwise provided in the Certificate of Incorporation. Each
stockholder of record entitled to vote at a meeting of
stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may vote or express such
consent or dissent in person or may authorize another person or
persons to vote or act for him by written proxy executed by the
stockholder or his authorized agent and delivered to the
Secretary of the corporation. No such proxy shall be voted or
acted upon after three years from the date of its execution,
unless the proxy expressly provides for a longer period.
1.9 Action at Meeting
When a quorum is present at any meeting, the holders of a
majority of the stock present or represented and voting on a
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matter (or if there are two or more classes of stock entitled to
vote as separate classes, then in the case of each such class,
the holders of a majority of the stock of that class present or
represented and voting on a matter) shall decide any matter to be
voted upon by the stockholders at such meeting, except when a
different vote is required by express provision of law, the
Certificate of Incorporation or these By-Laws. Any election by
stockholders shall be determined by a plurality of the votes cast
by the stockholders entitled to vote at the election.
1.10 Action Without Meeting
Any action required or permitted to be taken at any annual
or special meeting of stockholders of the corporation may be
taken without a meeting, without prior notice and without a vote,
if a consent in writing, setting forth the action so taken, is
signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to
vote on such action were present and voted. Prompt notice of the
taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders
who have not consented in writing.
ARTICLE 2 - Directors
2.1 General Powers
The business and affairs of the corporation shall be managed
by or under the direction of a Board of Directors, who may
exercise all of the powers of the corporation except as otherwise
provided by law, the Certificate of Incorporation or these By-
Laws. In the event of a vacancy in the Board of Directors, the
remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is
filled.
2.2 Number: Election: Tenure and Qualification
The number of directors which shall constitute the whole
Board shall be fixed by resolution of the Board of Directors, the
number to be not fewer than one (1) nor more than ten (10), with
the number currently fixed at three (3). Each director shall be
elected by the stockholders at the annual meeting and shall hold
office until the next annual meeting and until his successor is
elected and qualified, or until his earlier death, resignation or
removal. Directors need not be stockholders of the corporation.
2.3 Enlargement of the Board
The number of the Board of Directors may be increased at any
time by vote of a majority of the directors then in office.
2.4 Vacancies
Unless and until filled by the stockholders, any vacancy in
the Board of Directors, however occurring, including a vacancy
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resulting from an enlargement of the Board, may be filled by vote
of a majority of the directors then in office, although less than
a quorum, or by a sole remaining director. A director elected to
fill a vacancy shall be elected for the unexpired term of his
predecessor in office, or a director chosen to fill a position
resulting from an increase in the number of directors shall hold
office until the next annual meeting of stockholders and until
his successor is elected and qualified, or until his earlier
death, resignation or removal.
2.5 Resignation and Removal
Any director may resign by delivering his written
resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time
or upon the happening of some other event.
Any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors.
2.6 Regular Meetings
Regular meetings of the Board of Directors may be held
without notice at such time and place, within or without the
State of Delaware, as shall be determined from time to time by
the Board of Directors; provided that any director who is absent
when such a determination is made shall be given notice of the
determination. A regular meeting of the Board of Directors may
be held without notice immediately after and at the same place as
the annual meeting of stockholders.
2.7 Special Meetings
Special meetings of the Board of Directors may be held at
any time and place, within or without the State of Delaware,
designated in a call by the Chairman of the board, President, two
or more directors, or by one director in the event that there is
only a single director in office.
2.8 Notice of Special Meetings
Notice of any special meeting of directors shall be given to
each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be given to each
director in person, by telephone or by telegram sent to his
business or home address at least forty-eight (48) hours in
advance of the meeting, or by written notice mailed to his
business or home address at least seventy-two (72) hours in
advance of the meeting. A notice or waiver of notice of a
meeting of the Board of Directors need not specify the purposes
of the meeting.
2.9 Meetings by Telephone Conference Calls
Directors or any members of any committee designated by the
directors may participate in a meeting of the Board of Directors
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or such committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation by such means shall constitute presence in persons
at such meeting.
2.10 Quorum
A majority of the number of directors fixed pursuant to
Section 2.2 shall constitute a quorum at all meetings of the
Board of Directors. In the event one or more of the directors
shall be disqualified to vote at any meeting, then the required
quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than
one-third (1/3) of the number so fixed constitute a quorum. In
the absence of a quorum at any such meeting, a majority of the
directors present may adjourn the meeting from time to time
without further notice other than announcement at the meeting,
until a quorum shall be present.
2.11 Action at Meeting
At any meeting of the Board of Directors at which quorum is
present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is
specified by law, the Certificate of Incorporation or these By-
Laws.
2.12 Action by Consent
Any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting, of all members of the
Board or committee, as the case may be, consent to the action in
writing, and the written consents are filed with the minutes of
proceedings of the Board or committee.
2.13 Removal
Any one or more or all of the directors may be removed, with
or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
2.14 Committees
The Board of Directors may, be resolution passed by a
majority of the whole Board, designate one or more committees,
each committee to consist of one or more of the directors of the
corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the
member or members of the committee present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent
or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors and subject
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to the provisions of the General Corporation Law of the State of
Delaware, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the
business and affairs of the corporation and may authorize the
seal of the corporation to be affixed to all papers which may
require it. Each such committee shall keep minutes and make such
reports as the Board of Directors may from time to time request.
Except as the Board of Directors may otherwise determine, any
committee may make rules for the conduct of its business, but
unless otherwise provided by the directors in such rules, its
business shall be conducted as nearly as possible in the same
manner as is provided in these By-Laws for the Board of
Directors.
2.15 Compensation of Directors
Directors may be paid such compensation for their services
and such reimbursement for expenses of attendance at meetings as
the Board of Directors may from time to time determine. No such
payment shall preclude any director from serving the corporation
or any of its parent of subsidiary corporations in any other
capacity and receiving compensation for such service.
ARTICLE 3 - Officers
3.1 Enumeration
The officers of the corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with
such other titles as the Board of Directors shall determine,
including a Chairman of the Board, a Vice Chairman of the Board,
and one or more Vice Presidents, Assistant Treasurers and
Assistant Secretaries. The Board of Directors may appoint such
other officers as it may deem appropriate.
3.2 Election
The President, Treasurer and Secretary shall be elected
annually by the Board of Directors at its first meeting following
the annual meeting of stockholders. Other officers may be
appointed by the Board of Directors at such meeting or at any
other meeting.
3.3 Qualification
The President need not be a director. No officer need be a
stockholder. Any two or more offices may be held by the same
person.
3.4 Tenure
Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, each officer shall hold office
until his successor is elected and qualified, unless a different
term is specified in the vote choosing or appointing him, or
until his earlier death, resignation or removal.
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3.5 Resignation and Removal
Any officer may resign by delivering his written resignation
to the corporation at its principal office or to the President or
or Secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon
the happening of some other event.
Board of Directors, or a committee duly authorized to do so,
may remove any officer with or without cause. Except as the
Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as
an officer for any period following his resignation or removal,
or any right to damages on account of such removal, whether his
compensation be by month or by the year or otherwise, unless such
compensation is expressly provided in a duly authorized written
agreement with the corporation.
3.6 Vacancies
The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled
for such period as it may determine any offices other than those
of President, Treasurer and Secretary. Each such successor shall
hold office for the unexpired term of his predecessor and until
his successor is elected and qualified, or until his earlier
death, resignation or removal.
3.7 Chairman of the Board and Vice-Chairman of the Board
If the Board of Directors appoints a Chairman of the Board,
he shall, when present, preside at all meetings of the Board of
Directors. He shall perform such duties and possess such powers
as are usually vested in the office of the Chairman of the Board
or as may be vested in him by the Board of Directors. If the
Board of Directors appoints a Vice-Chairman of the Board, he
shall, in the absence or disability of the Chairman of the Board,
perform the duties and exercise the powers of the Chairman of the
Board and shall perform such other duties and possess such other
powers as may from time to time be vested in him by the Board of
Directors.
3.8 President
The President shall be the chief operating officer of the
corporation. He shall also be the chief executive officer of the
corporation unless such title is assigned to a Chairman of the
Board. The President shall, subject to the direction of the
Board of Directors, have general supervision and control of the
business of the corporation. Unless otherwise provided by the
directors, he shall preside at all meetings of the stockholders
and of the Board of Directors (except as provided in Section 3.7
above). The President shall perform such other duties and shall
have such other powers as the Board of Directors may from time to
time prescribe.
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3.9 Vice Presidents
Any Vice President shall perform such duties and possess
such powers as the Board of Directors or the President may from
time to time prescribe. In the event of the absence, inability,
or refusal to act of the President, the Vice President (or if
there shall be more than one, the Vice Presidents in the order
determined by the Board of Directors) shall perform the duties of
the President and when so performing shall have all the powers of
and be subject to all the restrictions upon the President. The
Board of Directors may assign to any Vice President the title of
Executive Vice President, Senior Vice President or any other
title selected by the Board of Directors.
3.10 Secretary and Assistant Secretaries
The Secretary shall perform such duties and shall have such
powers as the Board of Directors or the President may from time
to time prescribe. In addition, the Secretary shall perform such
duties and have such powers as are incident to the office of the
secretary, including without limitation the duty and power to
give notices of all meetings of stockholders and special meetings
of the board of Directors, to attend all meetings of stockholders
and the Board of Directors and keep a record of the proceedings,
to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records
and the corporate seal and to affix and attest to the same on
documents.
Any Assistant Secretary shall perform such duties and posses
such powers as the Board of Directors, the President or the
Secretary may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Secretary, the
Assistant Secretary, (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of
the Secretary.
In the absence of the Secretary or any Assistant Secretary
at any meeting of stockholders or directors, the person presiding
at the meeting shall designate a temporary secretary to keep, a
record of the meeting.
3.11 Treasurer and Assistant Treasurers
The Treasurer shall perform such duties and shall have such
powers as may from time to time be assigned to him by the Board
of Directors or the President. In addition, the Treasurer shall
perform such duties and have such powers as are incident to the
office of treasurer, including without limitation the duty and
power to keep and be responsible for all funds and securities of
the corporation, to deposit funds of the corporation in
depositories selected in accordance with these By-Laws, to
disburse such funds as ordered by the Board of Directors, to make
proper accounts of such funds, and to render as required by the
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Board of Directors statements of all such transactions and of the
financial condition of the corporation.
The Assistant Treasurers shall perform such duties and
possess such powers as the Board of Directors, the President or
the Treasurer may from time to time prescribe. In the event of
the absence, inability or refusal to act of the Treasurer, the
Assistant Treasurer, (or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of
the Treasurer.
3.12 Bonded Officers
The Board of Directors may require any officer to give the
corporation a bond in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors upon such
terms and conditions as the Board of Directors may specify,
including without limitation a bond for the faithful performance
of his duties and for the restoration to the corporation of all
property in his possession or under his control belonging to the
corporation.
3.13 Salaries
Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or
allowed from time to time by the Board of Directors.
ARTICLE 4 - Capital Stock
4.1 Issuance of Stock
Unless otherwise voted by the stockholders and subject to
the provisions of the Certificate of Incorporation, the whole or
any part of any unissued balance of the authorized capital stock
of the corporation or the whole or any of any unissued balance of
the authorized capital stock of the corporation held in its
treasury may be issued, sold, transferred or otherwise disposed
of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may
determine.
4.2 Certificates of Stock
Every holder of stock of the corporation shall be entitled
to have a certificate, in such form as may be prescribed by law
and by the Board of Directors certifying the number and class of
shares owned by him in the corporation. Each such certificate
shall be signed by, or in the name of the corporation by, the
Chairman or Vice-Chairman, if any, of the Board of Directors, or
the President or a Vice President, and the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary
of the corporation. Any or all of the signatures on the
certificate may be a facsimile.
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Each certificate for shares of stock which are subject to
any restriction on transfer pursuant to the Certificate of
Incorporation, the By-Laws, applicable securities laws or any
agreement among any number of shareholders or among such holders
and the corporation shall have conspicuously noted on the face or
back of the certificate either the full text of the restriction
or a statement of the existence of such restriction.
4.3 Transfers
Subject to the restrictions, if any, stated or noted on the
stock certificates, shares of stock may be transferred on the
books of the corporation by the surrender to the corporation of
its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power
of attorney properly executed, and with such proof of authority
or the authenticity of signature as the corporation or its
transfer agent may reasonably require. Except as may be
otherwise required by law, by the Certificate of Incorporation or
by these By-Laws, the corporation shall be entitled to treat the
record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and
the right to vote with respect to such stock, regardless of any
transfer, pledge or other disposition of such stock until the
shares have been transferred on the books of the corporation in
accordance with the requirements of these By-Laws.
4.4 Lost, Stolen or Destroyed Certificates
The corporation may issue a new certificate of stock in
place of any previously issued certificate alleged to have been
lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of
reasonable evidence of such loss, theft or destruction and the
giving of such indemnity as the Board of Directors may require
for the protection of the corporation or any transfer agent or
registrar.
4.5 Record Date
The Board of Directors may fix in advance a date as a record
date for the determination of the stockholders entitled to notice
of or to vote at any meeting of stockholders or to express
consent (or dissent) to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other
lawful action. Such record date shall not be more than 60 nor
less than 10 days before the date of such meeting, nor more than
60 days prior to any other action to which such record date
releases.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day before
the day on which notice is given, or, if notice is waived, at the
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close of business on the day before the day on which the meeting
is held. The record date for determining stockholders entitled
to express consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is
expressed. The record date for determining stockholders for any
other purpose shall be at the close of business on the day on
which the Board of Directors adopts the resolution relating to
such purpose.
A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
ARTICLE 5 - Indemnification
The corporation shall, to the fullest extent permitted by
Section 145 or the General Corporation Law of Delaware, as that
section may be amended and supplemented from time to time,
indemnify any director, officer or trustee which it shall have
power to indemnify under the section against any expenses,
liabilities or other matters referred to in or covered by that
section. The indemnification provided for in this Article (i)
shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any by-law, agreement or vote
of stockholders or disinterested directors or otherwise, both as
to action in their official capacities and as to action in
another capacity while holding such office, (ii) shall continue
as to a person who has ceased to be a director, officer or
trustee and (iii) shall inure to the benefit of the heirs,
executors and administrators of such a person. The corporation's
obligation to provide indemnification under this Article shall be
offset to the extent of any other source of indemnification or
any otherwise applicable insurance coverage under a policy
maintained by the corporation or any other person.
Expenses incurred by a director of the Corporation in
defending a civil or criminal action, suit or proceeding by
reason of the fact that he is or was a director of the
Corporation (or was serving at the Company's request as a
director or officer of another corporation) shall be paid by the
corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of such director to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Corporation as authorized by relevant sections of the general
Corporation Law of Delaware.
To assure indemnification under this Article of all such
persons who are determined by the corporation or otherwise to be
or to have been "fiduciaries" of any employee benefit plan of the
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corporation which may exist from time to time, such section 145
shall, for the purposes of this Article, be interpreted as
follows: an "other enterprise" shall be deemed to include such
an employee benefit plan, including, without limitation, any plan
of the corporation which is governed by the Act of Congress
entitled "Employee Retirement Income Security Act of 1974," as
amended from time to time; the corporation shall be deemed to
have requested a person to serve an employee benefit plan where
the performance by such person of his duties to the corporation
also imposes duties on, or otherwise involves services by, such
person to the plan or participants or beneficiaries of the plan;
excise taxes assessed on a person with respect to an employee
benefit plan pursuant to such Act of Congress shall be deemed
"fines"; and action taken or omitted by a person with respect to
an employee benefit plan in the performance of such person's
duties for a purpose reasonably believed by such person to be in
the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the
best interest of the corporation.
ARTICLE 6 - General Provisions
6.1 Fiscal Year
Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall
begin on the 1st day of January in each year and end on the 31st
day of December in each year.
6.2 Corporate Seal
The corporate seal shall be in such form as shall be
approved by the Board of Directors.
6.3 Execution of instruments
The President or the Treasurer shall have power to execute
and deliver on behalf and in the name of the corporation any
instrument requiring the signature of an officer of the
corporation, except as otherwise provided in these By-Laws, or
where the execution and delivery of such an instrument shall be
expressly delegated by the Board of Directors to some other
officer or agent of the corporation.
6.4 Waiver of Notice
Whenever any notice whatsoever is required to be given by
law, by the Certificate of Incorporation or by these By-Laws, a
waiver of such notice either in writing signed by the person
entitled to such notice or such person's duly authorized
attorney, or by telegraph, cable or any other available method,
whether before, at or after the time stated in such waiver, or
the appearance of such person or persons at such meeting in
person or by proxy, shall be deemed equivalent to such notice.
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6.5 Voting of Securities
Except as the directors may otherwise designate, the
President or Treasurer may waive notice of, and act as, or
appoint any person or persons to act as, proxy or attorney-in-
fact for this corporation (with or without power of substitution)
at, any meeting of stockholders or shareholders of any other
corporation or organization, the securities of which may be held
by this corporation.
6.6 Evidence of Authority
A certificate by the Secretary, or an Assistant Secretary,
or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or
representative of the corporation shall as to all persons who
rely on the certificate in good faith be conclusive evidence of
such action.
6.7 Certificate of Incorporation
All references in these By-Laws to the Certificate of
Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from
time to time.
6.8 Transactions with Interested Parties
No contract or transaction between the corporation and one
or more of the directors or officers, or between the corporation
and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors or a committee of the Board of
Directors which authorizes the contract or transaction or solely
because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board or
committee in good faith authorizes the contract or transaction by
the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a
quorum;
(2) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee of the Board of
Directors, or the stockholders.
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Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors
or of a committee which authorizes the contract or transaction.
6.9 Severability
Any determination that any provision of these By-Laws is for
any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these By-Laws.
6.10 Pronouns
All pronouns used in these By-Laws shall be deemed to refer
to the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons may require.
ARTICLE 7 - Amendments
7.1 By the Board of Directors. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the
affirmative vote of a majority of the directors present at any
regular or special meeting of the Board of Directors at which a
quorum is present.
7.2 By the Stockholders
These By-Laws may be altered, amended or repealed or new by-
laws may be adopted by the affirmative vote of the holders of a
majority of the shares of the capital stock of the corporation
issued and outstanding and entitled to vote at any regular
meeting of stockholders, or at any special meeting of
stockholders, provided notice of such alteration, amendment,
repeal or adoption of new By-Laws shall have been stated in the
notice of such special meeting.
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Exhibit B-76
BY-LAWS
OF
COMMERCE COGENERATION CORPORATION
(formerly known as Ada Management Corporation)
Amended through
October, 3, 1992<PAGE>
BY-LAWS
OF
COMMERCE COGENERATION CORPORATION
ARTICLE 1 - Offices
1.01 Principal Office
The principal executive office of Commerce Cogeneration
Corporation (the "Corporation") shall be at 1100 Towne & Country
Drive, Suite 800, in the City of Orange, County of Orange, State
of California.
1.02 Other Offices
The Corporation may also have offices at such other
places as the Board of Directors may from time to time designate,
or as the business of the Corporation may require.
ARTICLE 2 - Shareholders' Meetings
2.01 Annual Meetings
The annual meeting of the shareholders of the Corporation
for the election of directors to succeed those whose terms expire
and for the transaction of such other business as may properly
come before the meetings shall be held each year on such date and
at such time as shall be fixed by the Board of Directors at the
principle officer of the Corporation, or at such other place as
may be determined by the Board of Directors. If the annual
meeting of the shareholders be not held as herein prescribed, the
election of directors may be held at any meeting thereafter
called pursuant to these By-Laws.
2.02 Special Meetings
Special Meetings of the shareholders, for any purpose
whatsoever, unless otherwise prescribed by statute, may be called
at any time by the President, or by the Board of Directors, or by
one or more shareholders holding not less than ten percent (10%)
of the voting power of the Corporation.
2.03 Place
All meetings of the shareholders shall be at any place
within or without the State of California designated either by
the Board of Directors or by written consent of each person
entitled to vote thereat, signed either before of after the
meeting. In the absence of any such designation, shareholders
meetings shall be held at the principal executive office of the
Corporation.
2.04 Notice
Notice of meetings of the shareholders of the Corporation
shall be given in writing to each shareholder entitled to vote,
either personally or by first-class mail or telegraphic or other
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means of written communication, charges prepaid, addressed to the
shareholder at his address appearing on the books of the
Corporation or given by the shareholder to the Corporation for
the purpose of notice. Notice of any such meeting of
shareholders shall be sent to each shareholder entitled thereto
not less than ten (10) nor more than sixty (60) days before the
date of the meeting. Said notice shall state the place, date and
hour of the meeting and, (1) in the case of a special meeting,
the general nature of the business to be transacted, and no other
such business may be transacted, or (2) in the case of annual
meetings, those matters which the Board of Directors, at the time
of the mailing of the notice, intends to present for action by
the shareholders. In the case of any meeting at which directors
are to be elected, the notice shall also state the names of the
nominees intended at the time of the mailing of the notice to be
presented by management for election.
Subject to this Sections 2.04 and to Section 601(f) of the
California Corporations Code, any proper matter may be presented
at any meeting for action by the shareholders.
2.05 Adjournment of Meeting
Any shareholders' meeting may be adjourned from time to time
by the vote of the holders of a majority of the voting shares
present at the meeting either in person or by proxy. Notice of
any adjourned meeting need not be given if the time and place
thereof are announced at the meeting at which the adjournment is
taken, unless (i) a meeting is adjourned for forth-five (45) days
or more from the date of the original meeting or (ii) after the
adjournment a new record date is fixed for the adjourned meeting.
2.06 Quorum
The presence in person or by proxy of the persons entitled
to vote a majority of the shares entitled to vote at any meeting
constitutes a quorum for the transaction of business. The
shareholders present at a duly called or held meeting at which a
quorum is present may continue to transact business until
adjournment, notwithstanding the withdraw of enough shareholders
to leave less than quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares
required to constitute a quorum.
In the absence of a quorum, any meeting of shareholders may
be adjourned from time to time by the vote of a majority of the
shares, represented either in person or by proxy, but no other
business may be transacted, except as provided above.
2.07 Consent to Shareholder Action
Except as provided below, any action which may be taken at
any meeting of shareholders may be taken without a meeting and
without prior notice, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding
shares having not less than the minimum number of votes that
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would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and
voted. All such consents shall be filed with the Secretary of
the Corporation and shall be maintained in the corporate records.
Notwithstanding the foregoing, (1) unless the consents of
all shareholders entitled to vote have been solicited in writing,
notice of any shareholder approval without a meeting by less than
unanimous written consent shall be given as required under
Section 603(b) of the California Corporations Code, and (2)
subject to Section 305(b) of the California Corporations Code
regarding the filling of vacancies, directors may not be elected
by written consent except by unanimous written consent of all
shares entitled to vote for the election of directors.
Any written consent may be revoked by a writing received by
the Secretary of the Corporation prior to the time that written
consents of the number of shares required to authorize the
proposed action have been filed with the Secretary.
2.08 Wavier of Notice
The transactions of any meeting of shareholders, however
called and noticed, and wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice,
if a quorum is present either in person or by proxy, and if,
either before or after the meeting, each of the persons entitled
to vote, not present in person or by proxy. signs a written
waiver of notice, or a consent to the holding of the meeting, or
an approval of the minutes thereof. All such waivers, consents,
and approvals shall be filed with the corporate records or made a
part of the minutes of the meeting.
Attendance of a person at a meeting shall constitute a
waiver of notice of and presence at such meeting, except as
provided in Section 601(e) of the California Corporations Code.
Neither the business to be transacted at nor the purpose of
any regular or special meeting of shareholders need be specified
in any written waiver of notice, consent to the holding of the
meeting or approval of the minutes thereof, except as provided in
Section 601(f) of the California Corporations Code.
2.09 Voting
Every Shareholder of record shall be entitled at any meeting
of shareholders to one vote on each matter submitted to a vote of
the shareholders for every share of stock standing in such
shareholder's name on the books of the corporation and qualified
to vote. For all actions by the shareholders, the affirmative
vote of a majority of the number of issued and outstanding shares
of common stock shall be required unless the vote of a different
number of voting by classes is required hereunder or by the
Articles of Incorporation.
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The voting at all meetings of shareholders need not be by
ballot, but any qualified shareholder before the voting begins
may demand a stock vote whereupon such stock vote shall be taken
by ballot, each of which shall state the name of the shareholder
voting and the number of shares voted by such shareholder, and if
such ballot be cast by a proxy, it shall also state the name of
such proxy.
2.10 Proxies
At any meeting of the shareholders, every shareholder having
the right to vote shall be entitled to vote in person, or by one
ore more agents authorized by a written proxy subscribed by such
shareholder. No such proxy shall be valid after the expiration
of eleven (11) months from the date thereof unless otherwise
provided in the proxy. Every proxy continues in full force and
effect until revoked by the person executing it prior to the vote
pursuant thereto, except as otherwise provided in Section 705 of
the California Corporation Code, a proxy which states that it is
irrevocable and is held by a person specified in Section 705(e)
of the California Corporations Code is irrevocable for the period
specified therein.
2.11 Cumulative Voting for Election of Directors
Provided the candidate's name has been placed in nomination
prior to the voting and at least one shareholder has given notice
at the meeting prior to the voting of the shareholder's intention
to cumulate the shareholders' votes, every shareholder entitled
to vote at any election for directors may cumulate such
shareholder's votes and give one candidate a number of votes
equal to the number of directors to be elected multiplied by the
number of votes to which such shareholder's shares are normally
entitled, or distribute such shareholder's votes on the same
principle among as many candidates as such shareholder thinks
fit. The candidates receiving the highest number of votes of the
shares entitled to be voted for them up to the number of
directors to be elected by such shares are elected.
3.01 Powers
Subject to any limitations in the Articles of Incorporation
of these By-Laws and to any provision of the California
Corporations Code requiring shareholder authorization or approval
for a particular action, the business and affairs of the
Corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the Board of Directors.
The Board of Directors may delegate the management of the day-to-
day operation of the business of the Corporation to a management
company or other person provided that the business and affairs of
the Corporation shall be managed and all corporate powers shall
be exercised under the ultimate direction of the Board of
Directors.
3.02 Number, Tenure and Qualifications
The authorized number of directors of the Board of Directors
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shall be three (3) until changed by amendment of the Articles of
Incorporation or amendment of the By-Laws approved by the
shareholders.
Each Director shall hold office until the next annual
meeting of shareholders and until a successor has been elected
and qualified. If any such annual meeting is not held, or the
directors are not elected thereat, the directors may be elected
at any special meeting of shareholders held for that purpose.
Directors need not be shareholders.
3.03 Regular Meetings
A regular annual meeting of the Board of Directors shall be
held without other notice than this By-Law immediately after, and
at the same place as, the annual meeting of shareholders. The
Board of Directors may provide for other regular meetings from
time to time by resolution.
3.04 Special Meetings
Special meetings of the Board of Directors may be called at
any time by the President or any Vice President, or Secretary or
any two (2) directors. Notice of the time and place of all
special meetings of the Board of Directors shall be delivered
personally or by telephone or telegraph to each director at least
forty-eight (48) hours before the meeting, or sent to each
director by first-class mail, postage prepaid, at least four (4)
days before the meeting. Such notice need not specify the
purpose of the meeting. Notice of any meeting of the Board of
Directors need not be given to any director who signs a waiver of
notice or a consent to holding the meeting or an approval of the
minutes thereof, whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such director. All such
waivers, consents and approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
3.05 Place of Meetings
Meetings of the Board of Directors may be held at any place,
within or without the State of California, which has been
designated in the notice, or, if not stated in the notice or
there is no notice, the principle executive office of the
Corporation or as designated by resolution duly adopted by the
Board of Directors.
3.06 Participation by Telephone
Members of the Board of Directors may participate in a
meeting through use of conference telephone or similar
communications equipment, so long as all members participating in
such meeting can hear one another.
3.07 Quorum
A quorum at all meetings of the Board of Directors shall be
three (3). Whether or not a quorum is present, a majority of the
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directors present may adjourn any meeting to another time and
place. If a meeting is adjourned for more than twenty-four (24)
hours, notice of any adjournment to another time or place shall
be given prior to the time of the adjourned meeting to the
directors who were not present at the time of adjournment.
3.08 Action at Meeting
Subject to Sections 310 and 317(e) of the California
Corporation Code, every act or decision done or made by a
majority of the directors present at a meeting duly held at which
a quorum is present is the act of the Board of Directors.
Directors present at a meeting at which a quorum is initially
present may continue to transact business notwithstanding the
loss of a quorum due to the withdrawal of directors, if any
action taken is approved by at least a majority of the required
quorum for such meeting.
3.09 Action Without Meeting
Any action required or permitted to be taken by the Board of
Directors may be taken without a meeting, if all members of the
Board shall individually or collectively consent in wiring to
such action. Such written consent or consents shall be filed
with the minutes of the proceedings of the Board. Such action by
written consent shall have the same force and effect as a
unanimous vote of such directors.
3.10 Declaration of Vacancy; Removal
The Board of Directors may declare vacant the office of a
director who has been declared of unsound mind by an order of
court or who has been convicted of a felony.
Any or all the directors may be removed without cause by a
vote of shareholders holding a majority of the outstanding shares
entitled to vote at an election of directions; provided, however,
that unless the entire Board is removed, no director may be
removed when the votes cast against removal, or not consenting in
writing to such removal, would be sufficient to elect such
director if voted cumulatively at an election at which (i) the
same total number of votes were cast (or, if such action is taken
by written consent, all shares entitled to vote were voted) and
(ii) the entire number of directors authorized at the time of the
director's most recent election were then being elected.
In the event that an office of a director is so declared
vacant or in the event that the Board or any one or more
directors is so removed, new directors may be elected at the same
meeting.
3.11 Resignations
Any director may resign effective upon giving written notice
to the President, the Secretary or the Board of Directors of the
Corporation, unless the notice specifies a later time for the
effectiveness of such resignation. If the resignation is
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effective at a future time, a successor may be elected to take
office when the resignation becomes effective.
3.12 Vacancies
Except for the vacancy created by the removal of a director,
vacancies in the Board of Directors, whether caused by
resignation, death or otherwise, may be filed by resolution of
the Board of Directors, or if the number of directors then in
office is less than a quorum, (i) by the unanimous written
consent of the directors then in office, (ii) by the approval of
a majority of the directors then in office at a meeting held
pursuant to notice or waivers of notice complying with Section
307 of the California Corporations Code, or (iii) by a sole
remaining director. Each director so elected shall hold office
until his successor is elected at an annual, regular or special
meeting of the shareholders.
Vacancies created by the removal of a director may be filled
only by approval of the shareholders. The shareholders may elect
a director at any time to fill any vacancy not filled by the
directors. Any such election by written consent requires the
consent of a majority of the outstanding shares entitled to vote.
3.13 Compensation
No stated salary shall be paid directors, as such, for their
services, but, by resolution of the Board of Directors, a fixed
sum and expenses of attendance, if any, may be allowed for
attendance at each regular or special meeting of the Board;
provided that nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special
or standing committees may be allowed like compensation for
attending committee meetings.
3.14 Committees
The Board of Directors may, by resolution adopted by a
majority of the authorized number of directors, designate one or
more committees, each consisting of two (2) or more directors, to
service at the pleasure of the Board of Directors. The Board of
Directors may designate one or more directors as alternate
members of any committee, who may replace any absent member at
any meeting of the committee. The appointment of members or
alternate members of a committee requires the vote of a majority
of the authorized number of directors. Any such committee, to
the extent provided in the resolution of the Board of Directors,
shall have all the authority of the Board of Directors, except
with respect to (a) the approval of any action requiring
shareholder's approval or approval of the outstanding shares, (b)
the filling of vacancies on the Board or on any committee, (c)
the fixing of compensation of directors for serving on the Board
or on any committee, (d) the adoption, amendment or repeal of By-
Laws, (e) the amendment or repeal of any resolution of the Board
which by its express terms is not so amendable or repealable, (f)
-7-<PAGE>
a distribution to shareholders, except at a rate or in a periodic
amount or within a price range determined by the Board, and (g)
the appointment of other committees of the Board or the members
thereof.
ARTICLE 3 - Officers
4.01 Number and Term
The officers of the Corporation shall be a Chairman of the
Board and Chief Executive Officer, a President and Chief
Operating Officer, one or more Vice Presidents, a Secretary and a
Chief Financial Officer, all of shall be chosen by the Board of
Directors. In addition, the Board of Directors may appoint such
other officers as may be deemed expedient for the proper conduct
of the business of the Corporation, each of whom shall have such
authority and perform such duties as the Board of Directors may
from time to time determine.
The officers to be appointed by the Board of Directors shall
be chosen annually at the regular meeting of the Board of
Directors held after the annual meeting of shareholders and shall
serve at the pleasure of the Board of Directors. If officers are
not chosen at such meeting of the Board of Directors, they shall
be chosen as soon thereafter as shall be convenient. Each
officer shall hold office until hid successor has been duly
chosen or until his removal or resignation.
4.02 Inability to Act
In the case of the extended absence or inability to act of
any officer of the Corporation and of any person herein
authorized to act in his place, the Board of Directors may from
time to time delegate the powers or duties of such officer to any
other officer, or any director or other person whom it may
select.
4.03 Removal and Resignation
Subject to any rights of an officer under any contract of
employment, any officer chosen by the Board of Directors may be
removed at any time, with or without cause, by the affirmative
vote of a majority of all the members of the Board of Directors.
Subject to the rights of the Corporation under any contact
to which the officer is a party, any officer chosen by the Board
of Directors may resign at any time effective upon receipt of
written notice of said resignation by the President, the
Secretary or the Board of Directors, unless a different time is
specified therein.
4.40 Vacancies
A vacancy occurring in any office for any reason may be
filled by resolution of the Board of Directors for the unexpired
portion of the term.
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4.05 Chairman of the Board
The Chairman of the Board of Directors shall be the Chief
Executive Officer of the Corporation and shall preside at all
meetings of the Board of Directors.
4.06 President
The President shall be the General Manager and Chief
Operating Officer of the Corporation, subject to the control of
the Board of Directors, and as such shall preside at all meetings
of shareholders, shall have general supervision of the affairs of
the Corporation, shall make reports to the Board of Directors and
shareholders, and shall perform all such other duties as are
incident to such officer or are properly required by the Board of
Directors.
4.07 Vice President
In the extended absence of the President, or in the event of
such officer's death, disability or refusal to act, the Vice
President, or in the event there be more than one Vice President,
the Vice Presidents in the order designated at the time of their
selection, shall perform the duties of President, and when so
acting, shall have all the powers and be subject to all
restrictions upon the President. Each Vice President shall have
such powers and discharge such duties as may be assigned from
time to time by the President or by the Board of Directors.
4.08 Secretary
The Secretary shall see that notices for all meetings are
given in accordance with the provisions of these By-Laws and as
required by law, and shall keep minutes of all meeting, shall
have charge of the seal and the corporate books, and shall make
such reports and perform such other duties as are incident to
such officer, or as are properly required by the President or by
the Board of Directors.
The Assistant Secretary or the Assistant Secretaries, if
any, in the order of their seniority, shall, in the absence or
disability of the Secretary, or in the event of such officer's
refusal to act, perform the duties and exercise the powers of the
Secretary, and shall have such powers and discharge such duties
as may be assigned from time to time by the President or by the
Board of Directors.
4.09 Chief Financial Officer
The Chief Financial Officer may also be referred to by the
alternate title of "Treasurer". The Chief Financial Officer
shall have custody of all moneys and securities of the
Corporation and shall keep regular books of account. Such
officer shall disburse the funds of the Corporation in payment of
the just demands against the Corporation, or as may be ordered by
the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Board of Directors from
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time to time as may be required of such officer, an account of
all transactions as Chief Financial Officer and of the financial
condition of the Corporation. Such officer shall perform all
duties incident to such officer or which are properly required by
the President or by the Board of Directors.
The Assistant Treasurer or the Assistant Treasurers, if any,
in the order of their seniority, shall, the absence or disability
of the Chief Financial Officer, or in the event of such officer's
refusal to act, perform the duties and exercise the powers of the
Chief Financial Officer, and shall have such powers and discharge
such duties as may be assigned from time to time by the President
or by the Board of Directors.
4.10 Salaries
The salaries of the officers shall be fixed from time to
time by the Board of Directors and no officer shall be prevented
from receiving such salary by reason of the fact that such
officer is also a director of the Corporation.
ARTICLE 5 - Miscellaneous
5.01 Record Date and Closing of Stock Books
The Board of Directors may fix, in advance, a record date to
determine the shareholders entitled to notice of any meeting or
to vote or entitled to receive payment of any dividend or
distribution or any allotment of any rights or entitlement to
exercise any rights in respect to any other lawful action. The
record date so fixed shall not be more than sixty (60) days prior
to any other action.
If no record date is fixed:
(1) The record date for determining shareholders entitled
to notice of or to vote at a meeting of shareholders shall be at
the close of business on the business day next preceding the day
on which notice is given or, if notice is waived, at the close of
business on the business day next preceding the day on which the
meeting is held;
(ii) The record date for determining shareholders entitled
to give consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors has been taken,
shall be the day on which the first written consent is given;
and;
(iii)The record date for determining shareholders for any
other purpose shall be at the close of business on the day on
which the Board of Directors adopts the resolution relating
thereto, or the sixtieth (60th) day prior to the date of such
other action, whichever is later.
-10-<PAGE>
When a record date is so fixed, then, subject to the
provisions of the General Corporation Laws of the state of
California, only shareholders of record at the close of business
on that date are entitled to notice of and to vote or to receive
the dividend, distribution, or allotment of rights, or to
exercise the rights, as the case may be, notwithstanding any
transfer of any shares on the books of the Corporation after the
record date.
A determination of shareholders of record entitled to notice
of or to vote at a meeting of shareholders shall apply to any
adjournment of the meeting, but the Board of Directors shall fix
a new record date if the meeting is adjourned for more than
forth-five (45) days from the date set at the original meeting.
The Board of Directors may close the books of the
Corporation against transfers of shares during the whole or any
part of a period of not more than sixty (60) days prior to the
date of a shareholders' meeting, the date when the right to any
dividend, distribution, or allotment of rights vests, or the
effective date of any change, conversion or exchange of shares.
5.02 Certificates
Certificates of stock shall be issued in numerical order and
each shareholder shall be entitled to have a certificate signed
in the name of the Corporation by the President or a Vice
President, and by the Chief Financial Officer or an Assistant
Treasurer, the Secretary or an Assistant Secretary, certifying
the number of shares and the class or series of shares owned by
such shareholder. Any or all of the signatures on the
certificate may be facsimile. Prior to the due presentment for
registration of transfer in the stock transfer book of the
Corporation, the registered owner shall be treated as the person
exclusively entitled to vote, to receive notifications and
otherwise to exercise all the rights and powers of an owner,
except as expressly provided otherwise by the laws of the State
of California.
5.03 Representation of Shares in Other Corporations
Shares of other corporations standing in the name of this
Corporation may be voted or represented and all incidents thereto
may be exercised on behalf of the Corporation by the President or
any Vice President and the Chief Financial Officer or an
Assistant Treasurer or the Secretary or an Assistant Secretary.
5.04 Fiscal Year
The fiscal year of the Corporation shall end on the 31st day
of December.
5.05 Annual Reports
The Annual Report to shareholders, described in the
California Corporations Code, is expressly waived and dispensed
with.
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5.06 Amendments
These By-Laws may be adopted, amended, or repealed by the
vote or the written consent of shareholders entitled to exercise
a majority or the voting power of the Corporation. Subject to
the right of shareholders to adopt, amend, or repeal these Bi-
Laws, these Bi-Laws may be adopted, amended, or repealed by the
Board of Directors, except that an amendment to these Bi-Laws
changing the authorized number of directors may be adopted by the
Board of Directors only as permitted under Section 212 of the
California Corporations Code.
5.07 Liability of Directors
The liability of the directors of the Corporation for
monetary damages shall be eliminated to the fullest extent
permitted under California law.
5.08 Indemnification of Corporate Agents
The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any proceeding by
reason of the fact that such person is or was an agent of the
Corporation, against expenses, judgements, fines, settlements and
other amounts, actually and reasonably incurred in connection
with such proceedings, to the fullest extend permissible by the
provisions of Section 317 of the California Corporations Code,
and the Corporation shall advance the expenses reasonably
expected to be incurred by such agent in defending any such
proceeding upon receipt of the undertaking required by
subdivision (f) of such Section 317. The terms "agent",
"Proceeding" and "expenses" as used in this Section 5.08 shall
have the same meaning as such terms in such Section 317.
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Exhibit B-77
BYLAWS
OF
NCP BROOKLYN POWER INCORPORATED
ARTICLE I
Offices
Section 1.1. Registered Office. The registered
office shall be established and maintained with Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, City of
Wilmington, County of New Castle, Delaware. The Corporation
Trust Company shall be the registered agent of this corporation
in charge thereof.
Section 1.2. Other Offices. The corporation may
have other offices, either within or without the State of
Delaware, at such place or places as the Board of Directors may
from time to time determine or the business of the corporation
may require.
ARTICLE II
Meetings of Stockholders
Section 2.1. Annual Meetings. An annual
meeting of stockholders shall be held for the election of
directors on the second Wednesday of November in each year at
10:00 A.M., or such other date or time as may be fixed by the
Board of Directors; provided, however, that should said day fall
upon a legal holiday, such annual meeting of stockholders shall
be held at the same time on the next succeeding day which is a
full business day, at the City of Santa Ana, State of California.
Any other proper business may be transacted at the annual
meeting.
Section 2.2. Special Meetings. Special meetings
of stockholders for any purpose or purposes may be called at any
time by the Board of Directors, or by a committee of the Board of
Directors which has been duly designated by the Board of
Directors, and whose powers and authority, as expressly provided
in a resolution of the Board of Directors, include the power to
call such meetings, or by one or more stockholders holding in the
aggregate shares entitled to cast not less than ten percent of
the votes at such meeting.
1<PAGE>
Section 2.3. Notice of Meetings. Whenever
stockholders are required or permitted to take any action at a
meeting, a written notice of the meeting shall be given which
shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the
meeting is called. Unless otherwise provided by law, the written
notice of any meeting shall be given not less than ten nor more
than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his
or her address as it appears on the records of the corporation.
Section 2.4. Adjournments. Any meeting of
stockholders, annual or special may adjourn from time to time to
reconvene at the same or some other place, and notice need not be
given of any such adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken.
At the adjourned meeting the corporation may transact any
business which might have been transacted at the original
meeting. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for theadjourned
meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 2.5. Quorum. At each meeting of
stockholders, except where otherwise provided by law or the
Certificate of Incorporation of these Bylaws, the holders of a
majority of the outstanding shares of stock entitled to vote at
the meeting, present in person or by proxy, shall constitute a
quorum. In the absence of a quorum, the stockholders so present
may, by majority vote, adjourn the meeting from time to time in
the manner provided in Section 2.4 of these Bylaws until a quorum
shall attend. Shares of its own stock belonging to the
corporation or to another corporation, if a majority of the
shares entitled to vote in the election of directors of such
other corporation is held, directly or indirectly, by the
corporation, shall neither be entitled to vote nor be counted for
quorum purposes; provided, however, that the foregoing shall not
limit the right of any corporation to vote stock, including but
not limited to its own stock, held by it in a fiduciary capacity.
Section 2.6. Organization. Meetings of
stockholders shall be presided over by the Chairman of the Board,
if any, or in his or her absence by the Vice Chairman of the
Board, if any, or in his or her absence by the President, or in
his or her absence by a Vice President, or in the absence of the
foregoing persons by a chairman designated by the Board of
Directors, or in the absence of such designation, by a chairman
chosen at the meeting. The Secretary shall act as secretary of
the meeting, but in his or her absence the chairman of the
meeting may appoint any person to act as secretary of the
meeting.
2<PAGE>
Section 2.7. Voting; Proxies. Each stockholder
entitled to vote at any meeting of stockholders shall be entitled
to one vote for each share of stock held by him or her which has
voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders or to express
consent or dissent to corporate action in writing without a
meeting may authorize another person or persons to act for him or
her by proxy, but not such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a
longer period. A duly executed proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is
coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy which is
not irrevocable by attending the meeting and voting in person or
by filing an instrument in writing revoking the proxy or another
duly executed proxy bearing a later date with the Secretary of
the corporation. All elections of directors shall be by written
ballot. Voting at meetings of stockholders need not be conducted
by inspectors of election unless the holders of a majority of the
outstanding shares of all classes of stock entitled to vote
thereon present in person or by proxy at such meeting shall so
determine. At all meetings of stockholders for the election of
directors a plurality of the votes cast shall be sufficient to
elect directors. All other elections and questions shall, unless
otherwise provided by law or by the Certificate of Incorporation
of these Bylaws, be decided by the vote of the holders of a
majority of the outstanding shares of stock entitled to vote
thereon present in person or by proxy at the meeting, expect that
procedural matters relating to the conduct of a meeting shall be
determined by a plurality of the votes cast at the meeting with
respect to such matter.
Section 2.8. Fixing Date for Determination of
Stockholders of Record. In order that the corporation may
determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be
more than sixty nor less than ten days before the date of such
meeting, nor more than ten days after the date upon which the
resolution fixing a record date for consent is adopted, nor than
sixty days prior to any other action. If no record date is
fixed: (1) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at
the close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting
is held; (2) the record date for determining stockholders
entitled to express consent to corporate action in writing
3<PAGE>
without a meeting, when no prior action by the Board of Directors
is necessary, shall be the first date on which a signed written
consent is delivered to the corporation; (3) the record date for
determining stockholders for any other purpose shall be at the
close of business on the date on which the Board of Directors
adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice or to vote at a meeting
of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
Section 2.9. List of Stockholders Entitled to
Vote. The Secretary shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the whole
time thereof and may be inspected by any stockholder who is
present. Upon the willful neglect or refusal of the directors to
produce such a list at any meeting for the election of directors,
they shall be ineligible for election to any office at such
meeting. The stock ledger shall be the only evidence as to who
are the stockholders entitled to examine the stock ledger, the
list of stockholders referred to in this Section or the books of
the corporation, or to vote in person or by proxy it any meeting
of stockholders.
Section 2.10. Business Conducted at Meetings of
Stockholders; Stockholder Proposals. Any action required by law
to be taken at any annual or special meeting of stockholders, or
any action which may be taken at any such annual or special
meeting, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at
a meeting at which all shares entitled to vote thereon were
present and voted and shall be delivered to the corporation.
Every written consent shall bear the date of signature and no
written consent shall be effective unless, within sixty days of
the earliest dated consent delivered to the corporation, written
consents signed by a sufficient number of holders to take action
are delivered to the corporation. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not
consented in writing.
4<PAGE>
ARTICLE III
Board of Directors
Section 3.1. Number; Qualifications. The authorized
number of directors shall not be less than one nor more than 10,
until changed by an amendment to this bylaw, duly adopted by the
vote or written consent of holders of a majority of the
outstanding shares entitled to vote. The exact number of
directors shall be three until changed, within the limits
specified, by the stockholders or the Board of Directors, as
provided in Section 8.6. Directors need not be stockholders.
Section 3.2 Election; Resignation; Removal; Vacancies.
The Board of Directors shall initially consist of the persons
elected a such by the incorporator and thereafter shall be
elected at the annual meeting of stockholders. Each director
shall be elected to serve for one year and until his or her
successor is elected and qualified. Any director may resign at
any time upon written notice to the corporation. Any director
may be removed, at any time, either with or without cause, by the
affirmative vote of the holders of a majority of the shares
entitled to vote for the election of directors. Any vacancy
occurring in the Board of Directors for any cause may be filled
by a majority of the remaining members of the Board of Directors,
although such majority is less than a quorum, or by a plurality
of the votes cast at a meeting of stockholders, and each director
so elected shall hold office until the expiration of the term of
office of the director whom he or she has replaced, and until his
or her successor is elected and qualified.
Section 3.3. Regular Meeting. Regular meetings of
the Board of Directors may be held at such places within or
without the State of Delaware and at such times as the Board of
Directors may from time to time determine, and if so determined
notices thereof need not be given.
Section 3.4. Special Meetings; Notice. Special
meetings of the Board of Directors may be held at any time or
place within or without the State of Delaware whenever called by
the Chairman of the Board, if any, by the Vice Chairman of the
Board, if any, by the President or by any two directors. Two
day's notice of special meeting shall be given by the person or
persons calling the meeting. Notice may be given in writing by
mail, telegram, telex, facsimile or personal delivery, or orally
in person or by telephone.
Section 3.5. Telephonic Meetings Permitted. Members
of the Board of Directors, or any committee designated by the
Board of Directors, may participate in a meeting of such Board or
committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation in such a meeting shall constitute presence in
person at such meeting.
5<PAGE>
Section 3.6. Quorum; Vote Required for Action. At
all meetings of the Board of Directors, a majority of the whole
Board of Directors shall constitute a quorum for the transaction
of business. The vote of a majority of the directors present at
a meeting at which a quorum is present shall be the act of the
Board of Directors, expect in cases in which the Certificate of
Incorporation or these Bylaws require the vote of a greater
number.
Section 3.7. Organization. Meetings of the Board of
Directors shall be presided over by the Chairman of the Board, if
any, or in his or her absence by the Vice Chairman of the Board,
if any, or in his or her absence by the President, or in their
absence by a chairman chosen at the meeting. The Secretary shall
act as secretary of the meeting, but in his or her absence the
chairman of the meeting may appoint any person to act as
secretary of the meeting.
Section 3.8. Action Without Meeting. Unless
otherwise restricted by the Certificate of Incorporation or these
Bylaws, any action required or permitted to be taken at any
meeting of the Board of Directors, or of any committee thereof,
may be taken without a meeting if all members of the Board of
Directors or such committee, as the case may be, consent thereto
in writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Director or committee.
ARTICLE IV
Committees
Section 4.1. Committees. The Board of Directors may,
by resolution passed by a majority of the whole Board of
Directors, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The
Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the
absence or disqualification of a member of the committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not he or she or they
constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in place of any such
absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors, shall have
and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee
shall have power or authority in reference to amending the
Certificate of Incorporation of the corporation, adopting an
agreement of merger or consolidation, recommending to the
6<PAGE>
stockholders the sale, lease or exchange of all or substantially
all of the corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of
dissolution, or amending these Bylaws; and, unless the resolution
expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of
stock.
Section 4.2. Committee Rules. Unless the Board of
Directors otherwise provides, each committee designated by the
Board may make, alter and repeal rules for the conduct of its
business. In the absence of such rules each committee shall
conduct its business in the same manner as the Board of Directors
conducts its business pursuant to Article III of these Bylaws.
ARTICLE V
Officers
Section 5.1 Executive Officers; Election;
Qualifications; Term of Office; Resignation; Removal; Vacancies.
The Board of Directors shall choose a President and Secretary,
and it may, if it so determines, choose a Chairman of the Board
and a Vice Chairman of the Board from among its members. The
Board of Directors may also choose one or more Vice Presidents,
one or more Assistant Secretaries, a Treasurer and one or more
Assistant Treasurers. Each such officer shall hold office until
the first meeting of the Board of Directors after the annual
meeting of stockholders next succeeding his or her election, and
until his or her successor is elected and qualified or until his
or her earlier resignation or removal. Any officer may resign at
any time upon written notice to the corporation. The Board of
Directors may remove any officer with or without cause at any
time, but such removal shall be without prejudice to the
contractual rights of such officer, if any, with the corporation.
Any number of officers may be held by the same person. Any
vacancy occurring in any office of the corporation by death,
resignation, removal or otherwise may be filled for the unexpired
portion of the term by the Board of Directors at any regular or
special meeting.
Section 5.2. Other officers and Agents. The Board of
Directors may appoint such other officers and agents as it may
deem advisable, who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
Section 5.3. Chairman. The Chairman of the Board of
Directors, if there be one shall preside at all meetings of the
stockholders, if present thereat, and shall preside at all
meetings of the Board of Directors and he or she shall have and
perform, such other duties as from time to time may be assigned
to him or her by the Board of Directors.
7<PAGE>
Section 5.4. Vice Chairman. The Vice Chairman of the
Board of Directors, if there be one, shall, in the absence of the
Chairman of the Board of Directors, preside at all meetings of
the Board of Directors and he or she shall have and perform such
other duties as from time to time may be assigned to him or her
by the Board of Directors. In addition, the Vice Chairman shall,
in the absence of the Chairman, preside at all meetings of the
stockholders if present thereat.
Section 5.5. President. The President shall have and
perform such other powers and duties as may be assigned to him or
her by the Board of Directors, the Chairman, or the Vice
Chairman. The President shall be the Chief Executive Officer of
the corporation and shall have the general powers and duties of
supervision and management as generally pertain to the office of
Chief Executive and as are usually vested in the chief executive
officer of a corporation, including general supervision,
direction, and control of the business of the corporation. In
addition, the President shall, in the absence of the Chairman and
the Vice Chairman, preside at all meetings of the stockholders if
present thereat, and, in the absence of the Chairman and Vice
Chairman of the Board of Directors, at all meetings of the Board
of Directors.
Section 5.6. Vice President. Each Vice President
shall have such powers and shall have and perform such duties as
shall be assigned to him or her by the Board of Directors. In
the absence or disability of the President, the Vice Presidents,
in order of their rank as fixed by the Board of Directors, or, if
not ranked, a Vice President designated by the Board of
Directors, shall perform all the duties of the President, when so
acting shall have all the powers of, and be subject to all the
restrictions upon the President.
Section 5.7. Treasurer. The Treasurer shall be the
Chief Financial Officer of the corporation and have or supervise
the custody of the corporate funds and securities and shall keep,
or cause to be kept, full and accurate account of receipts and
disbursements in books belonging to the corporation. He or she
shall deposit, or cause to be deposited, all monies and other
valuables in the name and to the credit of the corporation in
such depositaries as may be designated by the Board of Directors.
The Treasurer shall supervise disbursement of funds of the
corporation as may be ordered by the Board of Directors, the
Chairman, Vice Chairman, or the President, shall render to the
President and Board of Directors at the regular meetings of the
Board of Directors, or whenever they may request it, an account
of all his or her transactions as Treasurer and of the financial
condition of the corporation and shall have and perform such
other powers and duties as may from time to time be assigned to
him or her by the Board of Directors.
8<PAGE>
Section 5.8. Secretary. The Secretary shall give, or
cause to be given, notice of all meetings of stockholders and
directors, and all other notices required by law or by these
Bylaws. He or she shall record, or cause to be recorded, minutes
of the meetings of the stockholders, the Board of Directors and
committees of the Board of Directors in minute books to be kept
by him or her for that purpose, and shall perform such other
duties as may be assigned to him or her by the Board of
Directors. He or she shall keep, or cause to be kept, at the
principal executive office or at the office of the corporation's
transfer agent or registrar, a share register or duplicate share
register showing the names of all stockholders and their
addresses, the number and classes of shares held by each, the
number and date of certificates issued for the same, and the
number and date of cancellation of every certificate surrendered
for cancellation. He or she shall have the custody of the seal
of the corporation and shall affix the same to all instruments
requiring it, when authorized by the Board of Directors, the
Chairman, the Vice Chairman, or the President, and attest the
same.
Section 5.9. Assistant Treasurers and Assistant
Secretaries. Assistant Treasurers and Assistant Secretaries, if
any, shall be elected and shall have such powers and shall
perform such duties as shall be assigned to them, respectively,
by the Board of Directors.
ARTICLE VI
Stock
Section 6.1. Certificates. Every holder of stock
shall be entitled to have a certificate signed by or in the name
of the corporation by the Chairman or Vice Chairman of the Board
of Directors, if any, or the President or a Vice President, and
by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, of the corporation, representing the
number of shares registered. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is
issued, it may be issued by the corporation with the same effect
as if he or she were such officer, transfer agent or registrar at
the date of issue.
Section 6.2. Transfer of Shares. The shares of stock
of the corporation shall be transferable only upon its books by
the holders thereof in person or by their duly authorized
attorneys or legal representatives, and upon such transfer the
old certificates shall be surrendered to the corporation by the
delivery thereof to the person in charge of the stock transfer
books and ledgers, or to such other person as the Board of
9<PAGE>
Directors may designate, by whom they shall be cancelled, and new
certificates shall thereupon be issued. A record shall be made
of each transfer.
Section 6.3. Lost Stolen or Destroyed Stock
Certificates; Issuance of New Certificates. The corporation may
issue a new certificate of stock in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the corporation may require the owner of the lost,
stolen or destroyed certificate, or his or her legal
representative, to give the corporation a bond sufficient to
indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VII
Indemnification of Directors and Officers
Section 7.1. Right to Indemnification. Each person
who was or is threatened to be made a party to or is involved in
any action, suit, or proceeding, whether civil, criminal,
administrative or investigative ("proceeding"), by reason of the
fact that he or she or a person of whom he or she is the legal
representative, is or was a director, officer, or employee of the
corporation or is or was serving at the request of the
corporation as a director, officer, or employee of another
corporation, or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in
an official capacity as a director, officer, or employee or in
any other capacity while serving as a director, officer, or
employee, shall be indemnified and held harmless by the
corporation to the fullest extent authorized by Delaware Law, as
the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendments
permits the corporation to provide broader indemnification rights
than said Law permitted the corporation to provide prior to such
amendment) against all expenses, liability, loss (including
attorneys' fees, judgements fines, ERISA excise taxes, or
penalties), amounts paid or to be paid in settlement and amounts
expended in seeking indemnification granted to such person under
applicable law, these Bylaws or any agreement with the
corporation reasonably incurred or suffered by such person in
connection therewith, and such indemnification shall continue as
to a person who has ceased to be a director, officer, or employee
and shall inure to the benefit of his or her heirs, executors,
and administrators; provided, however, that, except as provided
in Section 7.2 of this Article VII, the corporation shall
indemnify any such person seeking indemnity in connection with an
action, suit, or proceeding (or part thereof) initiated by such
person only if such action, suit or proceeding (or part thereof)
was authorized by the Board of Directors of the corporation.
10<PAGE>
Such right shall be a contract right and shall include the right
to be paid by the corporation expenses incurred in defendng any
such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law then so
requires, the payment of such expenses incurred by a director or
officer of the corporation in his or her capacity as a director
or officer (and not in any other capacity in which service was or
is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit
plan) in advance of the final disposition of such proceeding,
shall be made only upon delivery to the corporation of an
undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it should be determined
ultimately that such director or officer is not entitled to be
indemnified under this Section or otherwise.
Section 7.2. Right of Claimant to Bring Suit. If a
claim for indemnification under Section 7.1 is not paid in full
by the corporation within twenty days after a written claim has
been received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the
unpaid amount of the claim and, if such suit is not frivolous or
brought in bad faith, the claimant shall be entitled to be paid
also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding
in advance of its final disposition where the required
undertaking, if any, has been tendered to this corporation) that
the claimant has not met the standards of conduct which make it
permissible under the Delaware General Corporation Law of the
corporation to indemnify the claimant for the amount claimed, but
the burden of proving such defense shall be on the corporation.
Neither the failure of the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard
of conduct set forth in the Delaware Corporation Law, nor an
actual determination by the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that
the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that
claimant has not met the applicable standard of conduct.
Section 7.3. Non-Exclusivity of Rights. The rights
conferred on any person in Sections 7.1 and 7.2 shall not be
exclusive of any other right which such persons may have or
hereafter acquire under any statute, provision of the Certificate
of Incorporation, these Bylaws, agreement, vote of stockholders
or disinterested directors, or otherwise.
11<PAGE>
Section 7.4. Insurance. The corporation shall
maintain insurance to the extent reasonably available, as its
expense, to protect itself any such director, officer, employee
or agent of the corporation or another corporation, partnership,
joint venture, trust or other enterprise against any such
expense, liability or loss, whether or not the corporation would
have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
Section 7.5. Effect of Amendment. Any amendment,
repeal, or modification or any provision of this Article VI by
the stockholders and the directors of the corporation shall not
adversely affect any right or protection of a director or officer
of the corporation existing at the time of such amendment, repeal
or modification.
ARTICLE VIII
Miscellaneous
Section 8.1. Fiscal Year. The fiscal year of the
corporation shall be determined by resolution of the Board of
Directors.
Section 8.2. Seal. The corporate seal shall have the
name of the corporation inscribed thereon and shall be in such
form as may be approved from time to time by the Board of
Directors.
Section 8.3. Waiver of Notice of Meetings of
Stockholders, Directors and Committees. Any written waiver of
notice, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends
a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business
to be transacted at, nor the purpose of any regular or special
meeting of the stockholders, directors, or members of a committee
of directors need be specified in any written waiver of notice.
Section 8.4. Interested Directors. No contract or
transaction between the corporation and one or more of its
directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in
which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or
transaction, or solely because his, her or their votes are
counted for such purpose, if: (1) the material facts as to his or
12<PAGE>
her relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee in good
faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (2) the
material facts as to his or her relationship or interest and as
to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or (3) the contract or transaction is fair as to
the corporation as of the time it is authorized, approved or
ratified by the Board of Directors, a committee thereof, or the
stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or
transaction.
Section 8.5. Form of Records. Any records maintained
by the corporation in the regular course of its business,
including its stock ledger, books of account, and minute books,
may be kept on, or be in the form of, punch cards, magnetic tape,
photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into
clearly legible form within a reasonable time. The corporation
shall so convert any records so kept upon the request of any
person entitled to inspect the same.
Section 8.6. Amendment of Bylaws. These bylaws may
be altered, amended or repealed, and new bylaws made, by the
stockholders by the vote of the holders of not less than a
majority of the outstanding shares entitled to vote, or by the
Board of Directors.
13<PAGE>
Exhibit B-89
________________________
EI POWER, INC.
By-Laws
(May 2, 1994)
________________________<PAGE>
BY-LAWS
Offices
1. The principal office of EI POWER, INC. (the
"Corporation") shall be in Parsippany, New Jersey. The
Corporation may also have offices at such other places as the
Board of Directors may from time to time designate or the
business of the Corporation may require.
Seal
2. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization, and the
words "Corporate Seal" and "Delaware". If authorized by the
Board of Directors, the corporate seal may be affixed to any
certificates of stock, bonds, debentures, notes or other
engraved, lithographed or printed instruments, by engraving,
lithographing or printing thereon such seal or a facsimile
thereof, and such seal or facsimile thereof so engraved,
lithographed or printed thereon shall have the same force and
effect, for all purposes, as if such corporate seal had been
affixed thereto by indentation.
Stockholders' Meetings
3. All meetings of stockholders shall be held at the
principal office of the Corporation or at such other place as
shall be stated in the notice of the meeting. Such meetings
shall be presided over by the chief executive officer of the
Corporation, or, in his absence, by such other officer as shall
have been designated for the purpose by the Board of Directors,
except when by statute the election of a presiding officer is
required.
4. Annual meetings of stockholders shall be held during
the month of May in each year on such day and at such time as
shall be determined by the Board of Directors and specified in
the notice of the meeting. At the annual meeting, the
stockholders entitled to vote shall elect by ballot a Board of
Directors and transact such other business as may properly be
brought before the meeting.
5. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the
shares of stock of the Corporation issued and outstanding and
entitled to vote, present in person or by proxy, shall be
requisite for, and shall constitute a quorum at, any meeting of
the stockholders. If, however, the holders of a majority of such
shares of stock shall not be present or represented by proxy at
any such meeting, the stockholders entitled to vote thereat,
present in person or by proxy, shall have power, by vote of the
holders of a majority of the shares of capital stock present or
represented at the meeting, to adjourn the meeting from time to
time without notice other than announcement at the meeting, until
the holders of the amount of stock requisite to constitute a <PAGE>
quorum, as aforesaid, shall be present in person or by proxy. At
any adjourned meeting at which such quorum shall be present, in
person or by proxy, any business may be transacted which might
have been transacted at the meeting as originally noticed.
6. At each meeting of stockholders each holder of record
of shares of capital stock then entitled to vote shall be
entitled to vote in person, or by proxy appointed by instrument
executed in writing by such stockholders or by his duly
authorized attorney; but no proxy shall be valid after the
expiration of eleven months from the date of its execution unless
the stockholder executing it shall have specified therein the
length of time it is to continue in force, which shall be for
some specified period. Except as otherwise provided by law or by
the Certificate of Incorporation, each holder of record of shares
of capital stock entitled to vote at any meeting of stockholders
shall be entitled to one vote for every share of capital stock
standing in his name on the books of the Corporation. Shares of
capital stock of the Corporation belonging to the Corporation or
to a corporation controlled by the Corporation through stock
ownership or through majority representation on the board of
directors thereof, shall not be voted. All elections shall be
determined by a plurality vote, and, except as otherwise provided
by law or by the Certificate of Incorporation all other matters
shall be determined by a vote of the holders of a majority of the
shares of the capital stock present or represented at a meeting
and voting on such questions.
7. Special meetings of the stockholders for any purpose
or purposes, unless otherwise prescribed by law, may be called by
the Chairman or by the President, and shall be called by the
chief executive officer or Secretary at the request in writing of
any three members of the Board of Directors, or at the request in
writing of holders of record of ten percent of the shares of
capital stock of the Corporation issued and outstanding.
Business transacted at all special meetings of the stockholders
shall be confined to the purposes stated in the call.
8. (a) Notice of every meeting of stockholders,
setting forth the time and the place and briefly the purpose or
purposes thereof, shall be mailed, not less than ten nor more
than fifty days prior to such meeting, to each stockholder of
record (at his address appearing on the stock books of the
Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be
mailed to some other address, in which case it shall be mailed to
the address designated in such request) as of a date fixed by the
Board of Directors pursuant to Section 41 of the By-Laws. Except
as otherwise provided by law, the Certificate of Incorporation or
the By-Laws, items of business, in addition to those specified in
the notice of meeting, may be transacted at the annual meeting.<PAGE>
(b) Whenever by any provision of law, the vote of
stockholders at a meeting thereof is required or permitted to be
taken in connection with any corporate action, the meeting and
vote of stockholders may be dispensed with, if all the
stockholders who would have been entitled to vote upon the action
if such meeting were held, shall consent in writing to such
corporate action being taken, and all such consents shall be
filed with the Secretary of the Corporation. However, this
section shall not be construed to alter or modify any provision
of law or of the Certificate of Incorporation under which the
written consent of the holders of less than all outstanding
shares is sufficient for corporate action.
Directors
9. The business and affairs of the Corporation shall be
managed by its Board of Directors, which shall consist of not
less than one nor more than six directors as shall be fixed from
time to time by a resolution adopted by a majority of the entire
Board of Directors; provided, however, that no decrease in the
number of directors constituting the entire Board of Directors
shall shorten the term of any incumbent director. Each director
shall be at least twenty-one years of age. Directors need not be
stockholders of the Corporation. Directors shall be elected at
the annual meeting of stockholders, or, if any such election
shall not be held, at a stockholders' meeting called and held in
accordance with the provisions of the General Corporation Law of
the State of Delaware. Each director shall serve until the next
annual meeting of stockholders and thereafter until his successor
shall have been elected and shall qualify.
10. In addition to the powers and authority by the By-
Laws expressly conferred upon it, the Board of Directors may
exercise all such powers of the Corporation and do all such
lawful acts and things as are not by law or by the Certificate of
Incorporation, or by the By-Laws directed or required to be
exercised or done by the stockholders.
11. Unless otherwise required by law, in the absence of
fraud no contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation
and any corporation, partnership, association or other
organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for such reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors which authorize the contract or
transaction, or solely because his votes are counted for such
purpose if:
(a) The material facts as to his interest and as to
the contract or transaction are disclosed or are known to the
Board of Directors, and the Board in good faith authorizes the <PAGE>
contract or transaction by a vote sufficient for such purposes
without counting the vote of the interested director or
directors; or
(b) The material facts as to his interest and as to
the contract or transaction are disclosed or known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(c) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified
by the Board of Directors or the stockholders.
No director or officer shall be liable to account to
the Corporation for any profit realized by him from or through
any such contract or transaction of the Corporation by reason of
his interest as aforesaid in such contract or transaction if such
contract or transaction shall be authorized, approved or ratified
as aforesaid.
No contract or other transaction between the
Corporation and any of its affiliates shall in any case be void
or voidable or otherwise affected because of the fact that
directors or officers of the Corporation are directors or
officers of such affiliate, nor shall any such director or
officer, because of such relation, be deemed interested in such
contract or other transaction under any of the provisions of this
Section 11, nor shall any such director be liable to account
because of such relation. For the purposes of this Section 11,
the term "affiliate" shall mean any corporation which is an
"affiliate" of the Corporation within the meaning of the Public
Utility Holding Company Act of 1935, as said Act shall at the
time be in effect.
Nothing herein shall create liability in any of the
events described in this Section 11 or prevent the authorization,
ratification or approval, in any other manner provided by law, of
any contract or transaction described in this Section 11.
Meetings of the Board of Directors
12. Regular meetings of the Board of Directors may be
held without notice except for the purpose of taking action on
matters as to which notice is in the By-Laws required to be
given, at such time and place as shall from time to time be
designated by the Board. Special meetings of the Board of
Directors may be called by the Chairman or by the President or in
the absence or disability of the Chairman and the President, by a
Vice President, or by any two directors, and may be held at the
time and place designated in the call and notice of the meeting.<PAGE>
13. Except as otherwise provided by the By-Laws, any item
or business may be transacted at any meeting of the Board of
Directors, whether or not such item of business shall have been
specified in the notice of meeting. Where notice of any meeting
of the Board of Directors is required to be given by the By-Laws,
the Secretary or other officer performing his duties shall give
notice either personally or by telephone or telecopy at least
twenty-four hours before the meeting, or by mail at least three
days before the meeting. Meetings may be held at any time and
place without notice if all the directors are present or if those
not present waive notice in writing either before or after the
meeting.
14. At all meetings of the Board of Directors a majority
of the directors in office shall be requisite for, and shall
constitute, a quorum for the transaction of business, and the act
of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors,
except as may be otherwise specifically provided by law or by the
Certificate of Incorporation, as amended, or by the By-Laws.
15. Any regular or special meeting may be adjourned to
any time or place by a majority of the directors present at the
meeting, whether or not a quorum shall be present at such
meeting, and no notice of the adjourned meeting shall be required
other than announcement at the meeting.
Committees
16. The Board of Directors may, by the vote of a majority
of the directors in office, create an Executive Committee,
consisting of two or more members, of whom one shall be the chief
executive officer of the Corporation. The other members of the
Executive Committee shall be designated by the Board of Directors
from their number, shall hold office for such period as the Board
of Directors shall determine and may be removed at any time by
the Board of Directors. When a member of the Executive
Committee ceases to be a director, he shall cease to be a member
of the Executive Committee. The Executive Committee shall have
all the powers specifically granted to it by the By-Laws and,
between meetings of the Board of Directors, may also exercise all
the powers of the Board of Directors except such powers as the
Board of Directors may exercise by virtue of Section 10 of the
By-Laws. The Executive Committee shall have no power to revoke
any action taken by the Board of Directors, and shall be subject
to any restriction imposed by law, by the By-Laws, or by the
Board of Directors.
17. The Executive Committee shall cause to be kept
regular minutes of its proceedings, which may be transcribed in
the regular minute book of the Corporation, and all such
proceedings shall be reported to the Board of Directors at its
next succeeding meeting. A majority of the Executive Committee
shall constitute a quorum at any meeting. The Board of Directors<PAGE>
may by vote of a majority of the total number of directors
provided for in Section 9 of the By-Laws fill any vacancies in
the Executive Committee. The Executive Committee shall designate
one of its number as Chairman of the Executive Committee and may,
from time to time, prescribe rules and regulations for the
calling and conduct of meetings of the Committee, and other
matters relating to its procedure and the exercise of its powers.
18. From time to time the Board of Directors may appoint
any other committee or committees for any purpose or purposes,
which committee or committees shall have such powers and such
tenure of office as shall be specified in the resolution of
appointment. The chief executive officer of the Corporation
shall be a member ex officio of all committees of the Board.
Compensation and Reimbursement of Directors
and Members of the Executive Committee
19. Directors, other than salaried officers of the
Corporation or its affiliates, shall receive compensation and
benefits for their services as directors, at such rate or under
such conditions as shall be fixed from time to time by the Board,
and all directors shall be reimbursed for their reasonable
expenses, if any, of attendance at each regular or special
meeting of the Board of Directors.
20. Directors, other than salaried officers of the
Corporation or its affiliates, who are members of any committee
of the Board, shall receive compensation for their services as
such members as shall be fixed from time to time by the Board,
and shall be reimbursed for their reasonable expenses, if any, in
attending meetings of the Executive Committee or such other
Committees of the Board and of otherwise performing their duties
as members of such Committees.
Officers
21. The officers of the Corporation shall be chosen by a
vote of a majority of the directors in office and shall be a
President, one or more Vice Presidents, a Treasurer, a Secretary,
and a Comptroller, and may include a Chairman, one or more
Assistant Secretaries, one or more Assistant Treasurers, and one
or more Assistant Comptrollers. If a Chairman shall be chosen,
the Board of Directors shall designate either the Chairman or the
President as chief executive officer of the Corporation. If a
Chairman shall not be chosen, the President shall be the chief
executive officer of the Corporation. The Chairman and a
President who is designated chief executive officer of the
corporation shall be chosen from among the directors. A
President who is not chief executive officer of the Corporation,
and none of the other officers, need be a director. Neither the
Comptroller nor any Assistant Comptroller may occupy any other
office. With the above exceptions, any two offices may be
occupied and the duties thereof may be performed by one person. <PAGE>
22. The salary and other compensation of the chief
executive officer of the Corporation shall be determined from
time to time by the Board of Directors. The salaries and other
compensation of all other officers of the Corporation shall be
determined from time to time by the chief executive officer,
subject to the concurrence of the Chairman.
23. The salary or other compensation of all employees
other than officers of the Corporation shall be fixed by the
chief executive officer of the Corporation or by such other
officer as shall be designated for that purpose by the Board of
Directors.
24. The Board of Directors may appoint such officers and
such representatives or agents as shall be deemed necessary, who
shall hold office for such terms, exercise such powers, and
perform such duties as shall be determined from time to time by
the Board of Directors.
25. The officers of the Corporation shall hold office
until the first meeting of the Board of Directors after the next
succeeding annual meeting of stockholders and until their
respective successors are chosen and qualify. Any officer
elected pursuant to Section 21 of the By-Laws may be removed at
any time, with or without cause, by the vote of a majority of the
directors in office. Any other officer and any representative,
employee or agent of the Corporation may be removed at any time,
with or without cause, by action of the Board of Directors, by
the Executive Committee, or the chief executive officer of the
Corporation, or such other officer as shall have been designated
for that purpose by the chief executive officer of the
Corporation.
The Chairman
26. (a) If a Chairman shall be chosen by the Board of
Directors, he shall preside at all meetings of the Board at which
he shall be present.
(b) If a Chairman shall be chosen by the Board of
Directors and if he shall be designated by the Board as chief
executive officer of the Corporation:
(i)he shall have supervision, direction and control
of the conduct of the business of the Corporation,
subject, however, to the control of the Board of
Directors and the Executive Committee, if there be
one;
(ii)he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation, and, when authorized by the Board of<PAGE>
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(iii)he may, unless otherwise directed by the Board
of Directors pursuant to Section 36 of the By-Laws,
attend in person or by substitute or proxy
appointed by him and act and vote on behalf of the
Corporation at all meetings of stockholders of any
corporation in which the Corporation holds stock
and grant any consent, waiver, or power of attorney
in respect of such stock;
(iv)he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v)he shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
(c) If a Chairman shall be chosen by the Board of
Directors and if he shall not be designated by the Board as chief
executive officer of the Corporation:
(i)he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(ii)he shall have such other powers and perform
such other duties as may be prescribed from time to
time by law, by the By-Laws, or by the Board of
Directors.
The President
27. (a) If a Chairman shall not be chosen by the Board
of Directors, the President shall preside at all meetings of the
Board at which he shall be present.<PAGE>
(b) If the President shall be designated by the
Board of Directors as chief executive officer of the Corporation:
(i)he shall have supervision, direction and control
of the conduct of the business of the Corporation,
subject, however, to the control of the Board of
Directors and the Executive Committee if there be
one;
(ii)he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements, or
other instruments of any nature pertaining to the
business of the Corporation;
(iii)he may, unless otherwise directed by the Board
of Directors pursuant to Section 36 of the By-Laws,
attend in person or by substitute or proxy
appointed by him and act and vote on behalf of the
Corporation at all meetings of the stockholders of
any corporation in which the Corporation holds
stock and grant any consent, waiver, or power of
attorney in respect of such stock;
(iv)he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v)he shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
(c) If the Chairman shall be designated by the
Board of Directors as chief executive officer of the Corporation,
the President:
(i)shall be the chief operating officer of the
Corporation;
(ii)shall have supervision, direction and control
of the conduct of the business of the Corporation,
in the absence or disability of the Chairman,
subject, however, to the control of the Board of
Directors and the Executive Committee, if there be
one;<PAGE>
(iii)may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(iv)at the request or in the absence or disability
of the Chairman, may, unless otherwise directed by
the Board of Directors pursuant to Section 36 of
the By-Laws, attend in person or by substitute or
proxy appointed by him and act and vote on behalf
of the Corporation at all meetings of the
stockholders of any corporation in which the
Corporation holds stock and grant any consent,
waiver or power of attorney in respect of such
stock;
(v)at the request or in the absence or disability
of the Chairman, whenever in his opinion it may be
necessary or appropriate, shall prescribe the
duties of officers and employees of the Corporation
whose duties are not otherwise defined; and
(vi)shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
Vice President
28. (a) The Vice President shall, in the absence or
disability of the President, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 27(c)(ii) of the
By-Laws, have supervision, direction and control of the conduct
of the business of the Corporation, subject, however, to the
control of the Directors and the Executive Committee, if there be
one.
(b) He may sign in the name of and on behalf of the
Corporation any and all contracts, agreements or other
instruments pertaining to matters which arise in the ordinary
course of business of the Corporation, and when authorized by the
Board of Directors or the Executive Committee, if there be one,
except in cases where the signing thereof shall be expressly
delegated by the Board of Directors or the Executive Committee to
some other officer or agent of the Corporation.<PAGE>
(c) He may, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 27(c)(ii) of the
By-Laws, at the request or in the absence or disability of the
President or in case of the failure of the President to appoint a
substitute or proxy as provided in Subsections 27(b)(iii) and
27(c)(iv) of the By-Laws, unless otherwise directed by the Board
of Directors pursuant to Section 36 of the By-Laws, attend in
person or by substitute or proxy appointed by him and act and
vote on behalf of the Corporation at all meetings of the
stockholders of any corporation in which the Corporation holds
stock and grant any consent, waiver or power of attorney in
respect of such stock.
(d) He shall have such other powers and perform
such other duties as may be prescribed from time to time by law,
by the By-Laws, or by the Board of Directors.
(e) If there be more than one Vice President, the
Board of Directors may designate one or more of such Vice
Presidents as an Executive Vice President or a Senior Vice
President. The Board of Directors may assign to such Vice
Presidents their respective duties and may, if the President has
been designated chief executive officer of the Corporation or if
the President is acting pursuant to the provisions of Subsection
27(c)(ii) of the By-Laws, designate the order in which the
respective Vice Presidents shall have supervision, direction and
control of the business of the Corporation in the absence or
disability of the President.
The Secretary
29. (a) The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and
record all votes and the minutes of all proceedings in books to
be kept for that purpose; and he shall perform like duties for
the Executive Committee and any other committees created by the
Board of Directors.
(b) He shall give, or cause to be given, notice of
all meetings of the stockholders, the Board of Directors, or the
Executive Committee of which notice is required to be given by
law or by the By-Laws.
(c) He shall have such other powers and perform
such other duties as may be prescribed from time to time by law,
by the By-Laws, or the Board of Directors.
(d) Any records kept by the Secretary shall be the
property of the Corporation and shall be restored to the Corpora-
tion in case of his death, resignation, retirement or removal
from office.<PAGE>
(e) He shall be the custodian of the seal of the
Corporation and, pursuant to Section 43 of the By-Laws and in
other instances where the execution of documents on behalf of the
Corporation is authorized by the By-Laws or by the Board of
Directors, may affix the seal to all instruments requiring it and
attest the ensealing and the execution of such instruments.
(f) He shall have control of the stock ledger,
stock certificate book and all books containing minutes of any
meeting of the stockholders, Board of Directors, or Executive
Committee or other committee created by the Board of Directors,
and of all formal records and documents relating to the corporate
affairs of the Corporation.
(g) Any Assistant Secretary or Assistant Secretar-
ies shall assist the Secretary in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors.
The Treasurer
30. (a) The Treasurer shall be responsible for the
safekeeping of the corporate funds and securities of the Corpora-
tion, and shall maintain and keep in his custody full and
accurate accounts of receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and
other funds of the Corporation in the name and to the credit of
the Corporation, in such depositories as may be designated by the
Board of Directors.
(b) He shall disburse the funds of the Corporation
in such manner as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements.
(c) Pursuant to Section 45 of the By-Laws, he may,
when authorized by the Board of Directors, affix the seal to all
instruments requiring it and shall attest the ensealing and
execution of said instruments.
(d) He shall exhibit at all reasonable times his
accounts and records to any director of the Corporation upon
application during business hours at the office of the
Corporation where such accounts and records are kept.
(e) He shall render an account of all his
transactions as Treasurer at all regular meetings of the Board of
Directors, or whenever the Board may require it, and at such
other times as may be requested by the Board or by any director
of the Corporation.
(f) If required by the Board of Directors, he shall
give the Corporation a bond, the premium on which shall be paid <PAGE>
by the Corporation, in such form and amount and with such surety
or sureties as shall be satisfactory to the Board, for the
faithful performance of the duties of his office, and for the
restoration to the Corporation in case of his death, resignation,
retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
(g) He shall perform all duties generally incident
to the office of Treasurer, and shall have other powers and
duties as from time to time may be prescribed by law, by the By-
Laws, or by the Board of Directors.
(h) Any Assistant Treasurer or Assistant Treasurers
shall assist the Treasurer in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors. If
required by the Board of Directors, any Assistant Treasurer shall
give the Corporation a bond, the premium on which shall be paid
by the Corporation, similar to that which may be required to be
given by the Treasurer.
Comptroller
31. (a) The Comptroller of the Corporation shall be the
principal accounting officer of the Corporation and shall be
accountable and report directly to the Board of Directors. If
required by the Board of Directors, the Comptroller shall give
the Corporation a bond, the premium on which shall be paid by the
Corporation in such form and amount and with such surety or
sureties as shall be satisfactory to the Board, for the faithful
performance of the duties of his office.
(b) He shall keep or cause to be kept full and
complete books of account of all operations of the Corporation
and of its assets and liabilities.
(c) He shall have custody of all accounting records
of the Corporation other than the record of receipts and
disbursements and those relating to the deposit or custody of
money or securities of the Corporation, which shall be in the
custody of the Treasurer.
(d) He shall exhibit at all reasonable times his
books of account and records to any director of the Corporation
upon application during business hours at the office of the
Corporation where such books of account and records are kept.
(e) He shall render reports of the operations and
business and of the condition of the finances of the Corporation
at regular meetings of the Board of Directors, and at such other
times as he may be requested by the Board or any director of the
Corporation, and shall render a full financial report at the
annual meeting of the stockholders, if called upon to do so.<PAGE>
(f) He shall receive and keep in his custody an
original copy of each written contract made by or on behalf of
the Corporation.
(g) He shall receive periodic reports from the
Treasurer of the Corporation of all receipts and disbursements,
and shall see that correct vouchers are taken for all disburse-
ments for any purpose.
(h) He shall perform all duties generally incident
to the office of Comptroller, and shall have such other powers
and duties as from time to time may be prescribed by law, by the
By-Laws, or by the Board of Directors.
(i) Any Assistant Comptroller or Assistant
Comptrollers shall assist the Comptroller in the performance of
his duties, shall exercise his powers and duties at his request
or in his absence or disability and shall exercise such other
powers and duties as may be conferred or required by the Board of
Directors. If required by the Board of Directors, any Assistant
Comptroller shall give the Corporation a bond, the premium on
which shall be paid by the Corporation, similar to that which may
be required to be given by the Comptroller.
Vacancies
32. If the office of any director becomes vacant by
reason of death, resignation, retirement, disqualification, or
otherwise, the remaining directors, by the vote of a majority of
those then in office at a meeting, the notice of which shall have
specified the filling of such vacancy as one of its purposes may
choose a successor, who shall hold office for the unexpired term
in respect of which such vacancy occurs. If the office of any
officer of the Corporation shall become vacant for any reason,
the Board of Directors, at a meeting, the notice of which shall
have specified the filling of such vacancy as one of its
purposes, may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.
Pending action by the Board of Directors at such meeting, the
Board of Directors or the Executive Committee may choose a
successor temporarily to serve as an officer of the Corporation.
Resignations
33. Any officer or any director of the Corporation may
resign at any time, such resignation to be made in writing and
transmitted to the Secretary. Such resignation shall take effect
from the time of its acceptance, unless some time be fixed in the
resignation, and then from that time. Nothing herein shall be
deemed to relieve any officer from liability for breach of any
contract of employment resulting from any such resignation.
Duties of Officers May be Delegated
34. In case of the absence or disability of any officer
of the Corporation, or for any other reason the Board of <PAGE>
Directors may deem sufficient, the Board, by vote of a majority
of the total number of directors provided for in Section 9 of the
By-Laws may, notwithstanding any provisions of the By-Laws,
delegate or assign, for the time being, the powers or duties, or
any of them, of such officer to any other officer or to any
director.
Indemnification of Directors, Officers and Employees
35. (a) A director shall not be personally liable for
monetary damages as such for any action taken, or any failure to
take any action, unless the director has breached or failed to
perform the duties of his office under the General Corporation
Law of the State of Delaware, and the breach or failure to
perform constitutes self-dealing, willful misconduct or
recklessness. The provisions of this subsection (a) shall not
apply to the responsibility or liability of a director pursuant
to any criminal statute, or the liability of a director for the
payment of taxes pursuant to local, state or federal law.
(b) The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, whether
formal or informal, and whether brought by or in the right of the
Corporation or otherwise, by reason of the fact that he was a
director, officer or employee of the Corporation (and may
indemnify any person who was an agent of the Corporation), or a
person serving at the request of the Corporation as a director,
officer, partner, fiduciary or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, to the fullest extent permitted by law, including
without limitation indemnification against expenses (including
attorneys' fees and disbursements), damages, punitive damages,
judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection
with such proceeding to the fullest extent permitted by law.
(c) The Corporation shall pay the expenses
(including attorneys' fees and disbursements) actually and
reasonably incurred in defending a civil or criminal action, suit
or proceeding on behalf of any person entitled to indemnification
under subsection (b) in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such
person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation, and
may pay such expenses in advance on behalf of any agent on
receipt of a similar undertaking. The financial ability of such
person to make such repayment shall not be a prerequisite to the
making of an advance.
(d) For purposes of this Section: (i) the
Corporation shall be deemed to have requested an officer,
director, employee or agent to serve as fiduciary with respect to<PAGE>
an employee benefit plan where the performance by such person of
duties to the Corporation also imposes duties on, or otherwise
involves services by, such person as a fiduciary with respect to
the plan; (ii) excise taxes assessed with respect to any
transaction with an employee benefit plan shall be deemed
"fines"; and (iii) action taken or omitted by such person with
respect to any employee benefit plan in the performance of duties
for a purpose reasonably believed to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be
for a purpose which is not opposed to the best interests of the
Corporation.
(e) To further effect, satisfy or secure the
indemnification obligations provided herein or otherwise, the
Corporation may maintain insurance, obtain a letter of credit,
act as self-insurer, create a reserve, trust, escrow, cash
collateral or other fund or account, enter into indemnification
agreements, pledge or grant a security interest in any assets or
properties of the Corporation, or use any other mechanism or
arrangement whatsoever in such amounts, at such costs, and upon
such other terms and conditions as the Board of Directors shall
deem appropriate.
(f) All rights of indemnification under this
Section shall be deemed a contract between the Corporation and
the person entitled to indemnification under this Section
pursuant to which the Corporation and each such person intend to
be legally bound. Any repeal, amendment or modification hereof
shall be prospective only and shall not limit, but may expand,
any rights or obligations in respect of any proceeding whether
commenced prior to or after such change to the extent such
proceeding pertains to actions or failures to act occurring prior
to such change.
(g) The indemnification, as authorized by this
Section, shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any statute, agreement, vote of
shareholder, or disinterested directors or otherwise, both as to
action in an official capacity and as to action in any other
capacity while holding such office. The indemnification and
advancement of expenses provided by, or granted pursuant to, this
Section shall continue as to a person who has ceased to be an
officer, director, employee or agent in respect of matters
arising prior to such time, and shall inure to the benefit of the
heirs, executors and administrators of such person.
Stock of Other Corporations
36. The Board of Directors may authorize any director,
officer or other person on behalf of the Corporation to attend,
act and vote at meetings of the stockholders of any corporation
in which the Corporation shall hold stock, and to exercise <PAGE>
thereat any and all of the rights and powers incident to the
ownership of such stock and to execute waivers of notice of such
meetings and calls therefor.
Certificate of Stock
37. The certificates of stock of the Corporation shall be
numbered and shall be entered in the books of the Corporation as
they are issued. They shall exhibit the holder's name and number
of shares and may include his address. No fractional shares of
stock shall be issued. Certificates of stock shall be signed by
the Chairman, President or a Vice President and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the Corporation.
Where any certificate of stock is signed by a transfer agent or
transfer clerk, who may be but need not be an officer or employee
of the Corporation, and by a registrar, the signature of any such
Chairman, President, Vice President, Secretary, Assistant
Secretary, Treasurer, or Assistant Treasurer upon such
certificate who shall have ceased to be such before such
certificate of stock is issued, it may be issued by the
Corporation with the same effect as if such officer had not
ceased to be such at the date of its issue.
Transfer of Stock
38. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by
attorney, lawfully constituted in writing, and upon surrender of
the certificate therefor.
Fixing of Record Date
39. The Board of Directors is hereby authorized to fix a
time, not exceeding fifty (50) days preceding the date of any
meeting of stockholders or the date fixed for the payment of any
dividend or the making of any distribution, or for the delivery
of evidences of rights or evidences of interests arising out of
any change, conversion or exchange of capital stock, as a record
time for the determination of the stockholders entitled to notice
of and to vote at such meeting or entitled to receive any such
dividend, distribution, rights or interests as the case may be;
and all persons who are holders of record of capital stock at the
time so fixed and no others, shall be entitled to notice of and
to vote at such meeting, and only stockholders of record at such
time shall be entitled to receive any such notice, dividend,
distribution, rights or interests.
Registered Stockholders
40. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any
equitable or other claim to, or interest in, such share on the
part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by statutes of
the State of Delaware.<PAGE>
Lost Certificates
41. Any person claiming a certificate of stock to be lost
or destroyed shall make an affidavit or affirmation of that fact,
whereupon a new certificate may be issued of the same tenor and
for the same number of shares as the one alleged to be lost or
destroyed; provided, however, that the Board of Directors may
require, as a condition to the issuance of a new certificate, the
payment of the reasonable expenses of such issuance or the
furnishing of a bond of indemnity in such form and amount and
with such surety or sureties, or without surety, as the Board of
Directors shall determine, or both the payment of such expenses
and the furnishing of such bond, and may also require the
advertisement of such loss in such manner as the Board of
Directors may prescribe.
Inspection of Books
42. The Board of Directors may determine whether and to
what extent, and at what time the places and under what
conditions and regulations, the accounts and books of the
Corporation (other than the books required by statute to be open
to the inspection of stockholders), or any of them, shall be
open to the inspection of stockholders, and no stockholder shall
have any right to inspect any account or book or document of the
Corporation, except as such right may be conferred by statutes of
the State of Delaware or by the By-Laws or by resolution of the
Board of Directors or of the stockholders.
Checks, Notes, Bonds and Other Instruments
43. All checks or demands for money and notes of the
Corporation shall be signed by such person or persons (who may
but need not be an officer of officers of the Corporation) as the
Board of Directors may from time to time designate, either
directly or through such officers of the Corporation as shall, by
resolution of the Board of Directors, be authorized to designate
such person or persons. If authorized by the Board of Directors,
the signatures of such persons, or any of them, upon any checks
for the payment of money may be made by engraving, lithographing
or printing thereon a facsimile of such signatures, in lieu of
actual signatures, and such facsimile signatures so engraved,
lithographed or printed thereon shall have the same force and
effect as if such persons had actually signed the same.
44. All bonds, mortgages and other instruments requiring
a seal, when required in connection with matters which arise in
the ordinary course of business or when authorized by the Board
of Directors, shall be executed on behalf of the Corporation by
the Chairman or the President or a Vice President, and the seal
of the Corporation shall be thereupon affixed by the Secretary or
an Assistant Secretary or the Treasurer or an Assistant
Treasurer, who shall, when required, attest the ensealing and
execution of said instrument. If authorized by the Board of
Directors, a facsimile of the seal may be employed and such <PAGE>
facsimile of the seal may be engraved, lithographed or printed
and shall have the same force and effect as an impressed seal.
If authorized by the Board of Directors, the signatures of the
Chairman or the President or a Vice President and the Secretary
or an Assistant Secretary or the Treasurer or Assistant
Treasurer upon any engraved, lithographed or printed bonds,
debentures, notes or other instruments may be made by engraving,
lithographing or printing thereon a facsimile of such signatures,
in lieu of actual signatures, and such facsimile signatures so
engraved, lithographed or printed thereon shall have the same
force and effect as if such officers had actually signed the
same. In case any officer who has signed, or whose facsimile
signature appears on, any such bonds, debentures, notes or other
instruments shall cease to be such officer before such bonds,
debentures, notes or other instruments shall have been delivered
by the Corporation, such bonds, debentures, notes or other
instruments may nevertheless be adopted by the Corporation and be
issued and delivered as though the person who signed the same, or
whose facsimile signature appears thereon, had not ceased to be
such officer of the Corporation.
Receipts for Securities
45. All receipts for stocks, bonds or other securities
received by the Corporation shall be signed by the Treasurer or
an Assistant Treasurer, or by such other person or persons as the
Board of Directors or Executive Committee shall designate.
Fiscal Year
46. The fiscal year shall begin the first day of January
in each year.
Dividends
47. (a) Dividends in the form of cash or securities,
upon the capital stock of the Corporation, to the extent
permitted by law may be declared by the Board of Directors at any
regular or special meeting.
(b) The Board of Directors shall have power to fix
and determine, and from time to time to vary, the amount to be
reserved as working capital; to determine whether any, and if
any, what part of any, surplus of the Corporation shall be
declared as dividends; to determine the date or dates for the
declaration and payment or distribution of dividends; and, before
payment of any dividend or the making of any distribution to set
aside out of the surplus of the Corporation such amount or
amounts as the Board of Directors from time to time, in its
absolute discretion, may think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for such other
purpose as it shall deem to be in the interest of the
Corporation.<PAGE>
Notices
48. (a) Whenever under the provisions of the By-Laws
notice is required to be given to any director, officer of
stockholder, it shall not be construed to require personal
notice, but, except as otherwise specifically provided, such
notice may be given in writing, by mail, by depositing a copy of
the same in a post office, letter box or mail chute, maintained
by the United States Postal Service, postage prepaid, addressed
to such stockholder, officer or director, at his address as the
same appears on the books of the Corporation.
(b) A stockholder, director or officer may waive in
writing any notice required to be given to him by law or by the
By-Laws.
Participation in Meetings by Telephone
49. At any meeting of the Board of Directors or the
Executive Committee or any other committee designated by the
Board of Directors, one or more directors may participate in such
meeting in lieu of attendance in person by means of the
conference telephone or similar communications equipment by means
of which all persons participating in the meeting will be able to
hear and speak.
Amendments
50. The By-Laws may be altered or amended by the
affirmative vote of the holders of a majority of the capital
stock represented and entitled to vote at a meeting of the
stockholders duly held. The By-Laws may also be altered or
amended by the affirmative vote of a majority of the directors in
office at a meeting of the Board of Directors. <PAGE>
Exhibit B-91
________________________
EI POWER CHINA, INC.
By-Laws
________________________<PAGE>
EI POWER CHINA, INC.
BY-LAWS
Offices
1. The principal office of EI Power China, Inc. (the
"Corporation") shall be in Parsippany, New Jersey. The
Corporation may also have offices at such other places as the
Board of Directors may from time to time designate or the
business of the Corporation may require.
Seal
2. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization, and the
words "Corporate Seal" and "Delaware". If authorized by the
Board of Directors, the corporate seal may be affixed to any
certificates of stock, bonds, debentures, notes or other
engraved, lithographed or printed instruments, by engraving,
lithographing or printing thereon such seal or a facsimile
thereof, and such seal or facsimile thereof so engraved,
lithographed or printed thereon shall have the same force and
effect, for all purposes, as if such corporate seal had been
affixed thereto by indentation.
Stockholders' Meetings
3. All meetings of stockholders shall be held at the
principal office of the Corporation or at such other place as
shall be stated in the notice of the meeting. Such meetings
shall be presided over by the chief executive officer of the
Corporation, or, in his absence, by such other officer as shall
have been designated for the purpose by the Board of Directors,
except when by statute the election of a presiding officer is
required.
4. Annual meetings of stockholders shall be held during
the month of May in each year on such day and at such time as
shall be determined by the Board of Directors and specified in
the notice of the meeting. At the annual meeting, the
stockholders entitled to vote shall elect by ballot a Board of
Directors and transact such other business as may properly be
brought before the meeting. Prior to any meeting of stockholders
at which an election of directors is to be held, the Board of
Directors shall appoint one judge of election to serve at such
meeting. If there be a failure to appoint a judge or if such
judge be absent or refuse to act or if his office becomes vacant,
the stockholders present at the meeting, by a per capita vote,
shall choose temporary judges of the number required. No
director or officer of the Corporation shall be eligible to
appointment or election as a judge.
2<PAGE>
5. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the
shares of stock of the Corporation issued and outstanding and
entitled to vote, present in person or by proxy, shall be
requisite for, and shall constitute a quorum at, any meeting of
the stockholders. If, however, the holders of a majority of such
shares of stock shall not be present or represented by proxy at
any such meeting, the stockholders entitled to vote thereat,
present in person or by proxy, shall have power, by vote of the
holders of a majority of the shares of capital stock present or
represented at the meeting, to adjourn the meeting from time to
time without notice other than announcement at the meeting, until
the holders of the amount of stock requisite to constitute a
quorum, as aforesaid, shall be present in person or by proxy. At
any adjourned meeting at which such quorum shall be present, in
person or by proxy, any business may be transacted which might
have been transacted at the meeting as originally noticed.
6. At each meeting of stockholders each holder of record
of shares of capital stock then entitled to vote shall be
entitled to vote in person, or by proxy appointed by instrument
executed in writing by such stockholders or by his duly
authorized attorney; but no proxy shall be valid after the
expiration of eleven months from the date of its execution unless
the stockholder executing it shall have specified therein the
length of time it is to continue in force, which shall be for
some specified period. At all elections of directors each holder
of record of shares of capital stock then entitled to vote, shall
be entitled to as many votes as shall equal the number of votes
which (except for such provision) he would be entitled to cast
for the election of directors with respect to his shares of stock
multiplied by the number of directors to be elected and he may
cast all such votes for a single director or may distribute them
among the number to be voted for, or any two or more of them, as
he may see fit. Except as otherwise provided by law or by the
Certificate of Incorporation, each holder of record of shares of
capital stock entitled to vote at any meeting of stockholders
shall be entitled to one vote for every share of capital stock
standing in his name on the books of the Corporation. Shares of
capital stock of the Corporation belonging to the Corporation or
to a corporation controlled by the Corporation through stock
ownership or through majority representation on the board of
directors thereof, shall not be voted. All elections shall be
determined by a plurality vote, and, except as otherwise provided
by law or by the Certificate of Incorporation all other matters
shall be determined by a vote of the holders of a majority of the
shares of the capital stock present or represented at a meeting
and voting on such questions.
7. A complete list of the stockholders entitled to vote
at any meeting of stockholders, arranged in alphabetical order,
with the residence of each, and the number of shares held by
each, shall be prepared by the Secretary and filed in the
principal office of the Corporation at least fifteen days before
the meeting, and shall be open to the examination of any
3<PAGE>
stockholder at all times prior to such meeting, during the usual
hours for business, and shall be available at the time and place
of such meeting and open to the examination of any stockholder.
8. Special meetings of the stockholders for any purpose
or purposes, unless otherwise prescribed by law, may be called by
the Chairman or by the President, and shall be called by the
chief executive officer or Secretary at the request in writing of
any three members of the Board of Directors, or at the request in
writing of holders of record of ten percent of the shares of
capital stock of the Corporation issued and outstanding.
Business transacted at all special meetings of the stockholders
shall be confined to the purposes stated in the call.
9. (a) Notice of every meeting of stockholders,
setting forth the time and the place and briefly the purpose or
purposes thereof, shall be mailed, not less than ten nor more
than fifty days prior to such meeting, to each stockholder of
record (at his address appearing on the stock books of the
Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be
mailed to some other address, in which case it shall be mailed to
the address designated in such request) as of a date fixed by the
Board of Directors pursuant to Section 41 of the By-Laws. Except
as otherwise provided by law, the Certificate of Incorporation or
the By-Laws, items of business, in addition to those specified in
the notice of meeting, may be transacted at the annual meeting.
(b) Whenever by any provision of law, the vote of
stockholders at a meeting thereof is required or permitted to be
taken in connection with any corporate action, the meeting and
vote of stockholders may be dispensed with, if all the stock-
holders who would have been entitled to vote upon the action if
such meeting were held, shall consent in writing to such
corporate action being taken, and all such consents shall be
filed with the Secretary of the Corporation. However, this
section shall not be construed to alter or modify any provision
of law or of the Certificate of Incorporation under which the
written consent of the holders of less than all outstanding
shares is sufficient for corporate action.
Directors
10. The business and affairs of the Corporation shall be
managed by its Board of Directors, which shall consist of not
less than one nor more than nine directors as shall be fixed from
time to time by a resolution adopted by a majority of the entire
Board of Directors; provided, however, that no decrease in the
number of directors constituting the entire Board of Directors
shall shorten the term of any incumbent director. Each director
shall be at least twenty-one years of age. Directors need not be
stockholders of the Corporation. Directors shall be elected at
the annual meeting of stockholders, or, if any such election
shall not be held, at a stockholders' meeting called and held in
accordance with the provisions of the General Corporation Law of
4<PAGE>
the State of Delaware. Each director shall serve until the next
annual meeting of stockholders and thereafter until his successor
shall have been elected and shall qualify.
11. In addition to the powers and authority by the By-
Laws expressly conferred upon it, the Board of Directors may
exercise all such powers of the Corporation and do all such
lawful acts and things as are not by law or by the Certificate of
Incorporation, or by the By-Laws directed or required to be
exercised or done by the stockholders.
12. Unless otherwise required by law, in the absence of
fraud no contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation
and any corporation, partnership, association or other
organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for such reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors which authorize the contract or
transaction, or solely because his votes are counted for such
purpose if:
(a) The material facts as to his interest and as to
the contract or transaction are disclosed or are
known to the Board of Directors, and the Board in
good faith authorizes the contract or transaction by
a vote sufficient for such purposes without counting
the vote of the interested director or directors; or
(b) The material facts as to his interest and as to
the contract or transaction are disclosed or known to
the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved
or ratified by the Board of Directors or the stock-
holders.
No director or officer shall be liable to account to
the Corporation for any profit realized by him from or through
any such contract or transaction of the Corporation by reason of
his interest as aforesaid in such contract or transaction if such
contract or transaction shall be authorized, approved or ratified
as aforesaid.
No contract or other transaction between the
Corporation and any of its affiliates shall in any case be void
or voidable or otherwise affected because of the fact that
directors or officers of the Corporation are directors or
officers of such affiliate, nor shall any such director or
officer, because of such relation, be deemed interested in such
5<PAGE>
contract or other transaction under any of the provisions of this
Section 12, nor shall any such director be liable to account
because of such relation. For the purposes of this Section 12,
the term "affiliate" shall mean any corporation which is an
"affiliate" of the Corporation within the meaning of the Public
Utility Holding Company Act of 1935, as said Act shall at the
time be in effect.
Nothing herein shall create liability in any of the
events described in this Section 12 or prevent the authorization,
ratification or approval, in any other manner provided by law, of
any contract or transaction described in this Section 12.
Meetings of the Board of Directors
13. The first meeting of the Board of Directors, for the
purpose of organization, the election of officers, and the
transaction of any other business which may come before the
meeting, shall be held on call of the Chairman within one week
after the annual meeting of stockholders. If the Chairman shall
fail to call such meeting, it may be called by the President or
by any director. Notice of such meeting shall be given in the
manner prescribed for Special Meetings of the Board of Directors.
14. Regular meetings of the Board of Directors may be
held without notice except for the purpose of taking action on
matters as to which notice is in the By-Laws required to be
given, at such time and place as shall from time to time be
designated by the Board, but in any event at intervals of not
more than three months. Special meetings of the Board of
Directors may be called by the Chairman or by the President or in
the absence or disability of the Chairman and the President, by a
Vice President, or by any two directors, and may be held at the
time and place designated in the call and notice of the meeting.
15. Except as otherwise provided by the By-Laws, any item
or business may be transacted at any meeting of the Board of
Directors, whether or not such item of business shall have been
specified in the notice of meeting. Where notice of any meeting
of the Board of Directors is required to be given by the By-Laws,
the Secretary or other officer performing his duties shall give
notice either personally or by telephone or telegraph at least
twenty-four hours before the meeting, or by mail at least three
days before the meeting. Meetings may be held at any time and
place without notice if all the directors are present or if those
not present waive notice in writing either before or after the
meeting.
16. At all meetings of the Board of Directors a majority
of the directors in office shall be requisite for, and shall
constitute, a quorum for the transaction of business, and the act
of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors,
6<PAGE>
except as may be otherwise specifically provided by law or by the
Certificate of Incorporation, as amended, or by the By-Laws.
17. Any regular or special meeting may be adjourned to
any time or place by a majority of the directors present at the
meeting, whether or not a quorum shall be present at such
meeting, and no notice of the adjourned meeting shall be required
other than announcement at the meeting.
Committees
18. The Board of Directors may, by the vote of a majority
of the directors in office, create an Executive Committee,
consisting of two or more members, of whom one shall be the chief
executive officer of the Corporation. The other members of the
Executive Committee shall be designated by the Board of Directors
from their number, shall hold office for such period as the Board
of Directors shall determine and may be removed at any time by
the Board of Directors. When a member of the Executive
Committee ceases to be a director, he shall cease to be a member
of the Executive Committee. The Executive Committee shall have
all the powers specifically granted to it by the By-Laws and,
between meetings of the Board of Directors, may also exercise all
the powers of the Board of Directors except such powers as the
Board of Directors may exercise by virtue of Section 11 of the
By-Laws. The Executive Committee shall have no power to revoke
any action taken by the Board of Directors, and shall be subject
to any restriction imposed by law, by the By-Laws, or by the
Board of Directors.
19. The Executive Committee shall cause to be kept
regular minutes of its proceedings, which may be transcribed in
the regular minute book of the Corporation, and all such
proceedings shall be reported to the Board of Directors at its
next succeeding meeting, and the action of the Executive
Committee shall be subject to revision or alteration by the Board
of Directors, provided that no rights which, in the absence of
such revision of alteration, third persons would have had shall
be affected by such revision or alteration. A majority of the
Executive Committee shall constitute a quorum at any meeting.
The Board of Directors may by vote of a majority of the total
number of directors provided for in Section 10 of the By-Laws
fill any vacancies in the Executive Committee. The Executive
Committee shall designate one of its number as Chairman of the
Executive Committee and may, from time to time, prescribe rules
and regulations for the calling and conduct of meetings of the
Committee, and other matters relating to its procedure and the
exercise of its powers.
20. From time to time the Board of Directors may appoint
any other committee or committees for any purpose or purposes,
which committee or committees shall have such powers and such
tenure of office as shall be specified in the resolution of
appointment. The chief executive officer of the Corporation
shall be a member ex officio of all committees of the Board.
7<PAGE>
Compensation and Reimbursement of Directors
and Members of the Executive Committee
21. Directors, other than salaried officers of the
Corporation or its affiliates, shall receive compensation and
benefits for their services as directors, at such rate or under
such conditions as shall be fixed from time to time by the Board,
and all directors shall be reimbursed for their reasonable
expenses, if any, of attendance at each regular or special
meeting of the Board of Directors.
22. Directors, other than salaried officers of the
Corporation or its affiliates, who are members of any committee
of the Board, shall receive compensation for their services as
such members as shall be fixed from time to time by the Board,
and shall be reimbursed for their reasonable expenses, if any, in
attending meetings of the Executive Committee or such other
Committees of the Board and of otherwise performing their duties
as members of such Committees.
Officers
23. The officers of the Corporation shall be chosen by a
vote of a majority of the directors in office and shall be a
President, one or more Vice Presidents, a Treasurer, a Secretary,
and a Comptroller, and may include a Chairman, one or more
Assistant Secretaries, one or more Assistant Treasurers, and one
or more Assistant Comptrollers. If a Chairman shall be chosen,
the Board of Directors shall designate either the Chairman or the
President as chief executive officer of the Corporation. If a
Chairman shall not be chosen, the President shall be the chief
executive officer of the Corporation. The Chairman and a
President who is designated chief executive officer of the
corporation shall be chosen from among the directors. A
President who is not chief executive officer of the Corporation
and none of the other officers need be a director. Neither the
Comptroller nor any Assistant Comptroller may occupy any other
office. With the above exceptions, any two offices may be
occupied and the duties thereof may be performed by one person,
but no officer shall execute, acknowledge or verify any
instrument in more than one capacity.
24. The salary and other compensation of the chief
executive officer of the Corporation shall be determined from
time to time by the Board of Directors. The salaries and other
compensation of all other officers of the Corporation shall be
determined from time to time by the chief executive officer,
subject to the concurrence of the Chairman.
25. The salary or other compensation of all employees
other than officers of the Corporation shall be fixed by the
chief executive officer of the Corporation or by such other
officer as shall be designated for that purpose by the Board of
Directors.
8<PAGE>
26. The Board of Directors may appoint such officers and
such representatives or agents as shall be deemed necessary, who
shall hold office for such terms, exercise such powers, and
perform such duties as shall be determined from time to time by
the Board of Directors.
27. The officers of the Corporation shall hold office
until the first meeting of the Board of Directors after the next
succeeding annual meeting of stockholders and until their
respective successors are chosen and qualify. Any officer
elected pursuant to Section 23 of the By-Laws may be removed at
any time, with or without cause, by the vote of a majority of the
directors in office. Any other officer and any representative,
employee or agent of the Corporation may be removed at any time,
with or without cause, by action of the Board of Directors, by
the Executive Committee, or the chief executive officer of the
Corporation, or such other officer as shall have been designated
for that purpose by the chief executive officer of the
Corporation.
The Chairman
28. (a) If a Chairman shall be chosen by the Board of
Directors, he shall preside at all meetings of the Board at which
he shall be present.
(b) If a Chairman shall be chosen by the Board of
Directors and if he shall be designated by the Board as chief
executive officer of the Corporation:
(i)he shall have supervision, direction and control
of the conduct of the business of the Corporation,
subject, however, to the control of the Board of
Directors and the Executive Committee, if there be
one;
(ii)he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the Cor-
poration, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporations;
(iii)he may, unless otherwise directed by the Board
of Directors pursuant to Section 38 of the By-Laws,
attend in person or by substitute or proxy
appointed by him and act and vote on behalf of the
Corporation at all meetings of stockholders of any
corporation in which the Corporation holds stock
and grant any consent, waiver, or power of attorney
in respect of such stock;
9<PAGE>
(iv)he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v)he shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
(c) If a Chairman shall be chosen by the Board of
Directors and if he shall not be designated by the Board as chief
executive officer of the Corporation.
(i)he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the Cor-
poration and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(ii)he shall have such other powers and perform
such other duties as may be prescribed from time to
time by law, by the By-Laws, or by the Board of
Directors.
The President
29. (a) If a Chairman shall not be chosen by the Board
of Directors, the President shall preside at all meetings of the
Board at which he shall be present.
(b) If the President shall be designated by the
Board of Directors as chief executive officer of the Corporation.
(i)he shall have supervision, direction and control
of the conduct of the business of the Corporation,
subject, however, to the control of the Board of
Directors and the Executive Committee if there be
one;
(ii)he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the Cor-
poration, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements, or
other instruments of any nature pertaining to the
business of the Corporation;
10<PAGE>
(iii)he may, unless otherwise directed by the Board
of Directors pursuant to Section 38 of the By-Laws,
attend in person or by substitute or proxy
appointed by him and act and vote on behalf of the
Corporation at all meetings of the stockholders of
any corporation in which the Corporation holds
stock and grant any consent, waiver, or power of
attorney in respect of such stock;
(iv)he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v)he shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
(c) If the Chairman shall be designated by the
Board of Directors as chief executive officer of the Corporation,
the President,
(i)shall be the chief operating officer of the
Corporation;
(ii)shall have supervision, direction and control
of the conduct of the business of the Corporation,
in the absence or disability of the Chairman,
subject, however, to the control of the Board of
Directors and the Executive Committee, if there be
one;
(iii)may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(iv)at the request or in the absence or disability
of the Chairman, may, unless otherwise directed by
the Board of Directors pursuant to Section 38 of
the By-Laws, attend in person or by substitute or
proxy appointed by him and act and vote on behalf
of the Corporation at all meetings of the
stockholders of any corporation in which the
Corporation holds stock and grant any consent,
waiver or power of attorney in respect of such
stock;
11<PAGE>
(v)at the request or in the absence or disability
of the Chairman, whenever in his opinion it may be
necessary or appropriate, shall prescribe the
duties of officers and employees of the Corporation
whose duties are not otherwise defined; and
(vi)shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
Vice President
30. (a) The Vice President shall, in the absence or
disability of the President, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 29(c)(ii) of the
By-Laws, have supervision, direction and control of the conduct
of the business of the Corporation, subject, however, to the
control of the Directors and the Executive Committee, if there be
one.
(b) He may sign in the name of and on behalf of the
Corporation any and all contracts, agreements or other
instruments pertaining to matters which arise in the ordinary
course of business of the Corporation, and when authorized by the
Board of Directors or the Executive Committee, if there be one,
except in cases where the signing thereof shall be expressly
delegated by the Board of Directors or the Executive Committee to
some other officer or agent of the Corporation.
(c) He may, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 29(c)(ii) of the
By-Laws, at the request or in the absence or disability of the
President or in case of the failure of the President to appoint a
substitute or proxy as provided in Subsections 29(b)(iii) and
29(c)(iv) of the By-Laws, unless otherwise directed by the Board
of Directors pursuant to Section 38 of the By-Laws, attend in
person or by substitute or proxy appointed by him and act and
vote on behalf of the Corporation at all meetings of the
stockholders of any corporation in which the Corporation holds
stock and grant any consent, waiver or power of attorney in
respect of such stock.
(d) He shall have such other powers and perform
such other duties as may be prescribed from time to time by law,
by the By-Laws, or by the Board of Directors.
(e) If there be more than one Vice President, the
Board of Directors may designate one or more of such Vice
Presidents as an Executive Vice President or a Senior Vice
President. The Board of Directors may assign to such Vice
Presidents their respective duties and may, if the President has
been designated chief executive officer of the Corporation or if
12<PAGE>
the President is acting pursuant to the provisions of Subsection
29(c)(ii) of the By-Laws, designate the order in which the
respective Vice Presidents shall have supervision, direction and
control of the business of the Corporation in the absence or
disability of the President.
The Secretary
31. (a) The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and
record all votes and the minutes of all proceedings in books to
be kept for that purpose; and he shall perform like duties for
the Executive Committee and any other committees created by the
Board of Directors.
(b) He shall give, or cause to be given, notice of
all meetings of the stockholders, the Board of Directors, or the
Executive Committee of which notice is required to be given by
law or by the By-Laws.
(c) He shall have such other powers and perform
such other duties as may be prescribed from time to time by law,
by the By-Laws, or the Board of Directors.
(d) Any records kept by the Secretary shall be the
property of the Corporation and shall be restored to the Corpora-
tion in case of his death, resignation, retirement or removal
from office.
(e) He shall be the custodian of the seal of the
Corporation and, pursuant to Section 45 of the By-Laws and in
other instances where the execution of documents on behalf of the
Corporation is authorized by the By-Laws or by the Board of
Directors, may affix the seal to all instruments requiring it and
attest the ensealing and the execution of such instruments.
(f) He shall have control of the stock ledger,
stock certificate book and all books containing minutes of any
meeting of the stockholders, Board of Directors, or Executive
Committee or other committee created by the Board of Directors,
and of all formal records and documents relating to the corporate
affairs of the Corporation.
(g) Any Assistant Secretary or Assistant Secretar-
ies shall assist the Secretary in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors.
The Treasurer
32. (a) The Treasurer shall be responsible for the
safekeeping of the corporate funds and securities of the Corpora-
tion, and shall maintain and keep in his custody full and
accurate accounts of receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and
13<PAGE>
other funds of the Corporation in the name and to the credit of
the Corporation, in such depositories as may be designated by the
Board of Directors.
(b) He shall disburse the funds of the Corporation
in such manner as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements.
(c) Pursuant to Section 45 of the By-Laws, he may,
when authorized by the Board of Directors, affix the seal to all
instruments requiring it and shall attest the ensealing and
execution of said instruments.
(d) He shall exhibit at all reasonable times his
accounts and records to any director of the Corporation upon
application during business hours at the office of the
Corporation where such accounts and records are kept.
(e) He shall render an account of all his
transactions as Treasurer at all regular meetings of the Board of
Directors, or whenever the Board may require it, and at such
other times as may be requested by the Board or by any director
of the Corporation.
(f) If required by the Board of Directors, he shall
give the Corporation a bond, the premium on which shall be paid
by the Corporation, in such form and amount and with such surety
or sureties as shall be satisfactory to the Board, for the
faithful performance of the duties of his office, and for the
restoration to the Corporation in case of his death, resignation,
retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
(g) He shall perform all duties generally incident
to the office of Treasurer, and shall have other powers and
duties as from time to time may be prescribed by law, by the By-
Laws, or by the Board of Directors.
(h) Any Assistant Treasurer or Assistant Treasurers
shall assist the Treasurer in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors. If
required by the Board of Directors, any Assistant Treasurer shall
give the Corporation a bond, the premium on which shall be paid
by the Corporation, similar to that which may be required to be
given by the Treasurer.
Comptroller
33. (a) The Comptroller of the Corporation shall be the
principal accounting officer of the Corporation and shall be
accountable and report directly to the Board of Directors. If
required by the Board of Directors, the Comptroller shall give
the Corporation a bond, the premium on which shall be paid by the
14<PAGE>
Corporation in such form and amount and with such surety or
sureties as shall be satisfactory to the Board, for the faithful
performance of the duties of his office.
(b) He shall keep or cause to be kept full and
complete books of account of all operations of the Corporation
and of its assets and liabilities.
(c) He shall have custody of all accounting records
of the Corporation other than the record of receipts and
disbursements and those relating to the deposit or custody of
money or securities of the Corporation, which shall be in the
custody of the Treasurer.
(d) He shall exhibit at all reasonable times his
books of account and records to any director of the Corporation
upon application during business hours at the office of the
Corporation where such books of account and records are kept.
(e) He shall render reports of the operations and
business and of the condition of the finances of the Corporation
at regular meetings of the Board of Directors, and at such other
times as he may be requested by the Board or any director of the
Corporation, and shall render a full financial report at the
annual meeting of the stockholders, if called upon to do so.
(f) He shall receive and keep in his custody an
original copy of each written contract made by or on behalf of
the Corporation.
(g) He shall receive periodic reports from the
Treasurer of the Corporation of all receipts and disbursements,
and shall see that correct vouchers are taken for all
disbursements for any purpose.
(h) He shall perform all duties generally incident
to the office of Comptroller, and shall have such other powers
and duties as from time to time may be prescribed by law, by the
By-Laws, or by the Board of Directors.
(i) Any Assistant Comptroller or Assistant
Comptrollers shall assist the Comptroller in the performance of
his duties, shall exercise his powers and duties at his request
or in his absence or disability and shall exercise such other
powers and duties as may be conferred or required by the Board of
Directors. If required by the Board of Directors, any Assistant
Comptroller shall give the Corporation a bond, the premium on
which shall be paid by the Corporation, similar to that which may
be required to be given by the Comptroller.
Vacancies
34. If the office of any director becomes vacant by
reason of death, resignation, retirement, disqualification, or
otherwise, the remaining directors, by the vote of a majority of
those then in office at a meeting, the notice of which shall have
15<PAGE>
specified the filling of such vacancy as one of its purposes may
choose a successor, who shall hold office for the unexpired term
in respect of which such vacancy occurs. If the office of any
officer of the Corporation shall become vacant for any reason,
the Board of Directors, at a meeting, the notice of which shall
have specified the filling of such vacancy as one of its
purposes, may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.
Pending action by the Board of Directors at such meeting, the
Board of Directors or the Executive Committee may choose a
successor temporarily to serve as an officer of the Corporation.
Resignations
35. Any officer or any director of the Corporation may
resign at any time, such resignation to be made in writing and
transmitted to the Secretary. Such resignation shall take effect
from the time of its acceptance, unless some time be fixed in the
resignation, and then from that time. Nothing herein shall be
deemed to relieve any officer from liability for breach of any
contract of employment resulting from any such resignation.
Duties of Officers May be Delegated
36. In case of the absence or disability of any officer
of the Corporation, or for any other reason the Board of
Directors may deem sufficient, the Board, by vote of a majority
of the total number of directors provided for in Section 10 of
the By-Laws may, notwithstanding any provisions of the By-Laws,
delegate or assign, for the time being, the powers or duties, or
any of them, of such officer to any other officer or to any
director.
Indemnification of Directors, Officers and Employees
37. (a) A director shall not be personally liable for
monetary damages as such for any action taken, or any failure to
take any action, unless the director has breached or failed to
perform the duties of his office under the General Corporation
Law of the State of Delaware, and the breach or failure to
perform constitutes self-dealing, willful misconduct or
recklessness. The provisions of this subsection (a) shall not
apply to the responsibility or liability of a director pursuant
to any criminal statute, or the liability of a director for the
payment of taxes pursuant to local, state or federal law.
(b) The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, whether
formal or informal, and whether brought by or in the right of the
Corporation or otherwise, by reason of the fact that he was a
director, officer or employee of the Corporation (and may
indemnify any person who was an agent of the Corporation), or a
person serving at the request of the Corporation as a director,
officer, partner, fiduciary or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other
16<PAGE>
enterprise, to the fullest extent permitted by law, including
without limitation indemnification against expenses (including
attorneys' fees and disbursements), damages, punitive damages,
judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection
with such proceeding unless the act or failure to act giving rise
to the claim for indemnification is finally determined by a court
to have constituted willful misconduct or recklessness.
(c) The Corporation shall pay the expenses
(including attorneys' fees and disbursements) actually and
reasonably incurred in defending a civil or criminal action, suit
or proceeding on behalf of any person entitled to indemnification
under subsection (b) in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such
person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation, and
may pay such expenses in advance on behalf of any agent on
receipt of a similar undertaking. The financial ability of such
person to make such repayment shall not be a prerequisite to the
making of an advance.
(d) For purposes of this Section: (i) the
Corporation shall be deemed to have requested an officer,
director, employee or agent to serve as fiduciary with respect to
an employee benefit plan where the performance by such person of
duties to the Corporation also imposes duties on, or otherwise
involves services by, such person of duties to the Corporation
also imposes duties on, or otherwise involves services by, such
person as a fiduciary with respect to the plan; (ii) excise taxes
assessed with respect to any transaction with an employee benefit
plan shall be deemed "fines"; and (iii) action taken or omitted
by such person with respect to any employee benefit plan in the
performance of duties for a purpose reasonably believed to be in
the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the
best interests of the Corporation.
(e) To further effect, satisfy or secure the
indemnification obligations provided herein or otherwise, the
Corporation may maintain insurance, obtain a letter of credit,
act as self-insurer, create a reserve, trust, escrow, cash
collateral or other fund or account, enter into indemnification
agreements, pledge or grant a security interest in any assets or
properties of the Corporation, or use any other mechanism or
arrangement whatsoever in such amounts, at such costs, and upon
such other terms and conditions as the Board of Directors shall
deem appropriate.
(f) All rights of indemnification under this
Section shall be deemed a contract between the Corporation and
the person entitled to indemnification under this Section
pursuant to which the Corporation and each such person intend to
be legally bound. Any repeal, amendment or modification hereof
17<PAGE>
shall be prospective only and shall not limit, but may expand,
any rights or obligations in respect of any proceeding whether
commenced prior to or after such change to the extent such
proceeding pertains to actions or failures to act occurring prior
to such change.
(g) The indemnification, as authorized by this
Section, shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any statute, agreement, vote of
shareholder, or disinterested directors or otherwise, both as to
action in an official capacity and as to action in any other
capacity while holding such office. The indemnification and
advancement of expenses provided by, or granted pursuant to, this
Section shall continue as to a person who has ceased to be an
officer, director, employee or agent in respect of matters
arising prior to such time, and shall inure to the benefit of the
heirs, executors and administrators of such person.
Stock of Other Corporations
38. The Board of Directors may authorize any director,
officer or other person on behalf of the Corporation to attend,
act and vote at meetings of the stockholders of any corporation
in which the Corporation shall hold stock, and to exercise
thereat any and all of the rights and powers incident to the
ownership of such stock and to execute waivers of notice of such
meetings and calls therefor.
Certificate of Stock
39. The certificates of stock of the Corporation shall be
numbered and shall be entered in the books of the Corporation as
they are issued. They shall exhibit the holder's name and number
of shares and may include his address. No fractional shares of
stock shall be issued. Certificates of stock shall be signed by
the Chairman, President or a Vice President and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the Corporation.
Where any certificate of stock is signed by a transfer agent or
transfer clerk, who may be but need not be an officer or employee
of the Corporation, and by a registrar, the signature of any such
Chairman, President, Vice President, Secretary, Assistant
Secretary, Treasurer, or Assistant Treasurer upon such
certificate who shall have ceased to be such before such
certificate of stock is issued, it may be issued by the
Corporation with the same effect as if such officer had not
ceased to be such at the date of its issue.
Transfer of Stock
40. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by
attorney, lawfully constituted in writing, and upon surrender of
the certificate therefor.
18<PAGE>
Fixing of Record Date
41. The Board of Directors is hereby authorized to fix a
time, not exceeding fifty (50) days preceding the date of any
meeting of stockholders or the date fixed for the payment of any
dividend or the making of any distribution, or for the delivery
of evidences of rights or evidences of interests arising out of
any change, conversion or exchange of capital stock, as a record
time for the determination of the stockholders entitled to notice
of and to vote at such meeting or entitled to receive any such
dividend, distribution, rights or interests as the case may be;
and all persons who are holders of record of capital stock at the
time so fixed and no others, shall be entitled to notice of and
to vote at such meeting, and only stockholders of record at such
time shall be entitled to receive any such notice, dividend,
distribution, rights or interests.
Registered Stockholders
42. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any
equitable or other claim to, or interest in, such share on the
part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by statutes of
the State of Delaware.
Lost Certificates
43. Any person claiming a certificate of stock to be lost
or destroyed shall make an affidavit or affirmation of that fact,
whereupon a new certificate may be issued of the same tenor and
for the same number of shares as the one alleged to be lost or
destroyed; provided, however, that the Board of Directors may
require, as a condition to the issuance of a new certificate, the
payment of the reasonable expenses of such issuance or the
furnishing of a bond of indemnity in such form and amount and
with such surety or sureties, or without surety, as the Board of
Directors shall determine, or both the payment of such expenses
and the furnishing of such bond, and may also require the
advertisement of such loss in such manner as the Board of
Directors may prescribe.
Inspection of Books
44. The Board of Directors may determine whether and to
what extent, and at what time the places and under what
conditions and regulations, the accounts and books of the
Corporation (other than the books required by statute to be open
to the inspection of stockholders), or any of them, shall be
open to the inspection of stockholders, and no stockholder shall
have any right to inspect any account or book or document of the
Corporation, except as such right may be conferred by statutes of
the State of Delaware or by the By-Laws or by resolution of the
Board of Directors or of the stockholders.
19<PAGE>
Checks, Notes, Bonds and Other Instruments
45. A. All checks or demands for money and notes of
the Corporation shall be signed by such person or persons (who
may but need not be an officer of officers of the Corporation) as
the Board of Directors may from time to time designate, either
directly or through such officers of the Corporation as shall, by
resolution of the Board of Directors, be authorized to designate
such person or persons. If authorized by the Board of Directors,
the signatures of such persons, or any of them, upon any checks
for the payment of money may be made by engraving, lithographing
or printing thereon a facsimile of such signatures, in lieu of
actual signatures, and such facsimile signatures so engraved,
lithographed or printed thereon shall have the same force and
effect as if such persons had actually signed the same.
B. All bonds, mortgages and other instruments
requiring a seal, when required in connection with matters which
arise in the ordinary course of business or when authorized by
the Board of Directors, shall be executed on behalf of the
Corporation by the Chairman or the President or a Vice President,
and the seal of the Corporation shall be thereupon affixed by the
Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, who shall, when required, attest the
ensealing and execution of said instrument. If authorized by the
Board of Directors, a facsimile of the seal may be employed and
such facsimile of the seal may be engraved, lithographed or
printed and shall have the same force and effect as an impressed
seal. If authorized by the Board of Directors, the signatures of
the Chairman or the President or a Vice President and the
Secretary or an Assistant Secretary or the Treasurer or
Assistant Treasurer upon any engraved, lithographed or printed
bonds, debentures, notes or other instruments may be made by
engraving, lithographing or printing thereon a facsimile of such
signatures, in lieu of actual signatures, and such facsimile
signatures so engraved, lithographed or printed thereon shall
have the same force and effect as if such officers had actually
signed the same. In case any officer who has signed, or whose
facsimile signature appears on, any such bonds, debentures, notes
or other instruments shall cease to be such officer before such
bonds, debentures, notes or other instruments shall have been
delivered by the Corporation, such bonds, debentures, notes or
other instruments may nevertheless be adopted by the Corporation
and be issued and delivered as though the person who signed the
same, or whose facsimile signature appears thereon, had not
ceased to be such officer of the Corporation.
20<PAGE>
Receipts for Securities
46. All receipts for stocks, bonds or other securities
received by the Corporation shall be signed by the Treasurer or
an Assistant Treasurer, or by such other person or persons as the
Board of Directors or Executive Committee shall designate.
Fiscal Year
47. The fiscal year shall begin the first day of January
in each year.
Dividends
48. (a) Dividends in the form of cash or securities,
upon the capital stock of the Corporation, to the extent
permitted by law may be declared by the Board of Directors at any
regular or special meeting.
(b) The Board of Directors shall have power to fix
and determine, and from time to time to vary, the amount to be
reserved as working capital; to determine whether any, and if
any, what part of any, surplus of the Corporation shall be
declared as dividends; to determine the date or dates for the
declaration and payment or distribution of dividends; and, before
payment of any dividend or the making of any distribution to set
aside out of the surplus of the Corporation such amount or
amounts as the Board of Directors from time to time, in its
absolute discretion, may think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for such other
purpose as it shall deem to be in the interest of the
Corporation.
Directors' Annual Statement
49. The Board of Directors shall present or cause to be
presented at each annual meeting of stockholders, and when called
for by vote of the stockholders at any special meeting of the
stockholders, a full and clear statement of the business and
condition of the Corporation.
Notices
50. (a) Whenever under the provisions of the By-Laws
notice is required to be given to any director, officer of
stockholder, it shall not be construed to require personal
notice, but, except as otherwise specifically provided, such
notice may be given in writing, by mail, by depositing a copy of
the same in a post office, letter box or mail chute, maintained
by the United States Postal Service, postage prepaid, addressed
to such stockholder, officer or director, at his address as the
same appears on the books of the Corporation.
(b) A stockholder, director or officer may waive in
writing any notice required to be given to him by law or by the
By-Laws.
21<PAGE>
Participation in Meetings by Telephone
51. At any meeting of the Board of Directors or the
Executive Committee or any other committee designated by the
Board of Directors, one or more directors may participate in such
meeting in lieu of attendance in person by means of the
conference telephone or similar communications equipment by means
of which all persons participating in the meeting will be able to
hear and speak.
Oath of Judges of Election
52. The judges of election appointed to act at any
meeting of the stockholders shall, before entering upon the
discharge of their duties, be sworn faithfully to execute the
duties of judge at such meeting with strict impartiality and
according to the best of their ability.
Amendments
53. The By-Laws may be altered or amended by the
affirmative vote of the holders of a majority of the capital
stock represented and entitled to vote at a meeting of the
stockholders duly held, provided that the notice of such meeting
shall have included notice of such proposed amendment. The By-
Laws may also be altered or amended by the affirmative vote of a
majority of the directors in office at a meeting of the Board of
Directors, the notice of which shall have included notice of the
proposed amendment. In the event of the adoption, amendment, or
repeal of any By-Law by the Board of Directors pursuant to this
Section, there shall be set forth in the notice of the next
meeting of stockholders for the election of directors the By-Law
so adopted, amended, or repealed together with a concise
statement of the changes made. By the affirmative vote of the
holders of a majority of the capital stock represented and
entitled to vote at such meeting, the By-Laws may, without
further notice, be altered or amended by amending or repealing
such action by the Board of Directors.
22<PAGE>
Exhibit B-92
________________________
EI POWER CHINA I, INC.
By-Laws
________________________<PAGE>
EI POWER CHINA I, INC.
BY-LAWS
Offices
1. The principal office of EI Power China I, Inc. (the
"Corporation") shall be in Parsippany, New Jersey. The
Corporation may also have offices at such other places as the
Board of Directors may from time to time designate or the
business of the Corporation may require.
Seal
2. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization, and the
words "Corporate Seal" and "Delaware". If authorized by the
Board of Directors, the corporate seal may be affixed to any
certificates of stock, bonds, debentures, notes or other
engraved, lithographed or printed instruments, by engraving,
lithographing or printing thereon such seal or a facsimile
thereof, and such seal or facsimile thereof so engraved,
lithographed or printed thereon shall have the same force and
effect, for all purposes, as if such corporate seal had been
affixed thereto by indentation.
Stockholders' Meetings
3. All meetings of stockholders shall be held at the
principal office of the Corporation or at such other place as
shall be stated in the notice of the meeting. Such meetings
shall be presided over by the chief executive officer of the
Corporation, or, in his absence, by such other officer as shall
have been designated for the purpose by the Board of Directors,
except when by statute the election of a presiding officer is
required.
4. Annual meetings of stockholders shall be held during
the month of May in each year on such day and at such time as
shall be determined by the Board of Directors and specified in
the notice of the meeting. At the annual meeting, the
stockholders entitled to vote shall elect by ballot a Board of
Directors and transact such other business as may properly be
brought before the meeting. Prior to any meeting of stockholders
at which an election of directors is to be held, the Board of
Directors shall appoint one judge of election to serve at such
meeting. If there be a failure to appoint a judge or if such
judge be absent or refuse to act or if his office becomes vacant,
the stockholders present at the meeting, by a per capita vote,
shall choose temporary judges of the number required. No
director or officer of the Corporation shall be eligible to
appointment or election as a judge.
2<PAGE>
5. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the
shares of stock of the Corporation issued and outstanding and
entitled to vote, present in person or by proxy, shall be
requisite for, and shall constitute a quorum at, any meeting of
the stockholders. If, however, the holders of a majority of such
shares of stock shall not be present or represented by proxy at
any such meeting, the stockholders entitled to vote thereat,
present in person or by proxy, shall have power, by vote of the
holders of a majority of the shares of capital stock present or
represented at the meeting, to adjourn the meeting from time to
time without notice other than announcement at the meeting, until
the holders of the amount of stock requisite to constitute a
quorum, as aforesaid, shall be present in person or by proxy. At
any adjourned meeting at which such quorum shall be present, in
person or by proxy, any business may be transacted which might
have been transacted at the meeting as originally noticed.
6. At each meeting of stockholders each holder of record
of shares of capital stock then entitled to vote shall be
entitled to vote in person, or by proxy appointed by instrument
executed in writing by such stockholders or by his duly
authorized attorney; but no proxy shall be valid after the
expiration of eleven months from the date of its execution unless
the stockholder executing it shall have specified therein the
length of time it is to continue in force, which shall be for
some specified period. At all elections of directors each holder
of record of shares of capital stock then entitled to vote, shall
be entitled to as many votes as shall equal the number of votes
which (except for such provision) he would be entitled to cast
for the election of directors with respect to his shares of stock
multiplied by the number of directors to be elected and he may
cast all such votes for a single director or may distribute them
among the number to be voted for, or any two or more of them, as
he may see fit. Except as otherwise provided by law or by the
Certificate of Incorporation, each holder of record of shares of
capital stock entitled to vote at any meeting of stockholders
shall be entitled to one vote for every share of capital stock
standing in his name on the books of the Corporation. Shares of
capital stock of the Corporation belonging to the Corporation or
to a corporation controlled by the Corporation through stock
ownership or through majority representation on the board of
directors thereof, shall not be voted. All elections shall be
determined by a plurality vote, and, except as otherwise provided
by law or by the Certificate of Incorporation all other matters
shall be determined by a vote of the holders of a majority of the
shares of the capital stock present or represented at a meeting
and voting on such questions.
7. A complete list of the stockholders entitled to vote
at any meeting of stockholders, arranged in alphabetical order,
with the residence of each, and the number of shares held by
each, shall be prepared by the Secretary and filed in the
principal office of the Corporation at least fifteen days before
the meeting, and shall be open to the examination of any
3<PAGE>
stockholder at all times prior to such meeting, during the usual
hours for business, and shall be available at the time and place
of such meeting and open to the examination of any stockholder.
8. Special meetings of the stockholders for any purpose
or purposes, unless otherwise prescribed by law, may be called by
the Chairman or by the President, and shall be called by the
chief executive officer or Secretary at the request in writing of
any three members of the Board of Directors, or at the request in
writing of holders of record of ten percent of the shares of
capital stock of the Corporation issued and outstanding.
Business transacted at all special meetings of the stockholders
shall be confined to the purposes stated in the call.
9. (a) Notice of every meeting of stockholders,
setting forth the time and the place and briefly the purpose or
purposes thereof, shall be mailed, not less than ten nor more
than fifty days prior to such meeting, to each stockholder of
record (at his address appearing on the stock books of the
Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be
mailed to some other address, in which case it shall be mailed to
the address designated in such request) as of a date fixed by the
Board of Directors pursuant to Section 41 of the By-Laws. Except
as otherwise provided by law, the Certificate of Incorporation or
the By-Laws, items of business, in addition to those specified in
the notice of meeting, may be transacted at the annual meeting.
(b) Whenever by any provision of law, the vote of
stockholders at a meeting thereof is required or permitted to be
taken in connection with any corporate action, the meeting and
vote of stockholders may be dispensed with, if all the stock-
holders who would have been entitled to vote upon the action if
such meeting were held, shall consent in writing to such
corporate action being taken, and all such consents shall be
filed with the Secretary of the Corporation. However, this
section shall not be construed to alter or modify any provision
of law or of the Certificate of Incorporation under which the
written consent of the holders of less than all outstanding
shares is sufficient for corporate action.
Directors
10. The business and affairs of the Corporation shall be
managed by its Board of Directors, which shall consist of not
less than one nor more than nine directors as shall be fixed from
time to time by a resolution adopted by a majority of the entire
Board of Directors; provided, however, that no decrease in the
number of directors constituting the entire Board of Directors
shall shorten the term of any incumbent director. Each director
shall be at least twenty-one years of age. Directors need not be
stockholders of the Corporation. Directors shall be elected at
the annual meeting of stockholders, or, if any such election
shall not be held, at a stockholders' meeting called and held in
accordance with the provisions of the General Corporation Law of
4<PAGE>
the State of Delaware. Each director shall serve until the next
annual meeting of stockholders and thereafter until his successor
shall have been elected and shall qualify.
11. In addition to the powers and authority by the By-
Laws expressly conferred upon it, the Board of Directors may
exercise all such powers of the Corporation and do all such
lawful acts and things as are not by law or by the Certificate of
Incorporation, or by the By-Laws directed or required to be
exercised or done by the stockholders.
12. Unless otherwise required by law, in the absence of
fraud no contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation
and any corporation, partnership, association or other
organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for such reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors which authorize the contract or
transaction, or solely because his votes are counted for such
purpose if:
(a) The material facts as to his interest and as to
the contract or transaction are disclosed or are
known to the Board of Directors, and the Board in
good faith authorizes the contract or transaction by
a vote sufficient for such purposes without counting
the vote of the interested director or directors; or
(b) The material facts as to his interest and as to
the contract or transaction are disclosed or known to
the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved
or ratified by the Board of Directors or the stock-
holders.
No director or officer shall be liable to account to
the Corporation for any profit realized by him from or through
any such contract or transaction of the Corporation by reason of
his interest as aforesaid in such contract or transaction if such
contract or transaction shall be authorized, approved or ratified
as aforesaid.
No contract or other transaction between the
Corporation and any of its affiliates shall in any case be void
or voidable or otherwise affected because of the fact that
directors or officers of the Corporation are directors or
officers of such affiliate, nor shall any such director or
officer, because of such relation, be deemed interested in such
5<PAGE>
contract or other transaction under any of the provisions of this
Section 12, nor shall any such director be liable to account
because of such relation. For the purposes of this Section 12,
the term "affiliate" shall mean any corporation which is an
"affiliate" of the Corporation within the meaning of the Public
Utility Holding Company Act of 1935, as said Act shall at the
time be in effect.
Nothing herein shall create liability in any of the
events described in this Section 12 or prevent the authorization,
ratification or approval, in any other manner provided by law, of
any contract or transaction described in this Section 12.
Meetings of the Board of Directors
13. The first meeting of the Board of Directors, for the
purpose of organization, the election of officers, and the
transaction of any other business which may come before the
meeting, shall be held on call of the Chairman within one week
after the annual meeting of stockholders. If the Chairman shall
fail to call such meeting, it may be called by the President or
by any director. Notice of such meeting shall be given in the
manner prescribed for Special Meetings of the Board of Directors.
14. Regular meetings of the Board of Directors may be
held without notice except for the purpose of taking action on
matters as to which notice is in the By-Laws required to be
given, at such time and place as shall from time to time be
designated by the Board, but in any event at intervals of not
more than three months. Special meetings of the Board of
Directors may be called by the Chairman or by the President or in
the absence or disability of the Chairman and the President, by a
Vice President, or by any two directors, and may be held at the
time and place designated in the call and notice of the meeting.
15. Except as otherwise provided by the By-Laws, any item
or business may be transacted at any meeting of the Board of
Directors, whether or not such item of business shall have been
specified in the notice of meeting. Where notice of any meeting
of the Board of Directors is required to be given by the By-Laws,
the Secretary or other officer performing his duties shall give
notice either personally or by telephone or telegraph at least
twenty-four hours before the meeting, or by mail at least three
days before the meeting. Meetings may be held at any time and
place without notice if all the directors are present or if those
not present waive notice in writing either before or after the
meeting.
16. At all meetings of the Board of Directors a majority
of the directors in office shall be requisite for, and shall
constitute, a quorum for the transaction of business, and the act
of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors,
6<PAGE>
except as may be otherwise specifically provided by law or by the
Certificate of Incorporation, as amended, or by the By-Laws.
17. Any regular or special meeting may be adjourned to
any time or place by a majority of the directors present at the
meeting, whether or not a quorum shall be present at such
meeting, and no notice of the adjourned meeting shall be required
other than announcement at the meeting.
Committees
18. The Board of Directors may, by the vote of a majority
of the directors in office, create an Executive Committee,
consisting of two or more members, of whom one shall be the chief
executive officer of the Corporation. The other members of the
Executive Committee shall be designated by the Board of Directors
from their number, shall hold office for such period as the Board
of Directors shall determine and may be removed at any time by
the Board of Directors. When a member of the Executive
Committee ceases to be a director, he shall cease to be a member
of the Executive Committee. The Executive Committee shall have
all the powers specifically granted to it by the By-Laws and,
between meetings of the Board of Directors, may also exercise all
the powers of the Board of Directors except such powers as the
Board of Directors may exercise by virtue of Section 11 of the
By-Laws. The Executive Committee shall have no power to revoke
any action taken by the Board of Directors, and shall be subject
to any restriction imposed by law, by the By-Laws, or by the
Board of Directors.
19. The Executive Committee shall cause to be kept
regular minutes of its proceedings, which may be transcribed in
the regular minute book of the Corporation, and all such
proceedings shall be reported to the Board of Directors at its
next succeeding meeting, and the action of the Executive
Committee shall be subject to revision or alteration by the Board
of Directors, provided that no rights which, in the absence of
such revision of alteration, third persons would have had shall
be affected by such revision or alteration. A majority of the
Executive Committee shall constitute a quorum at any meeting.
The Board of Directors may by vote of a majority of the total
number of directors provided for in Section 10 of the By-Laws
fill any vacancies in the Executive Committee. The Executive
Committee shall designate one of its number as Chairman of the
Executive Committee and may, from time to time, prescribe rules
and regulations for the calling and conduct of meetings of the
Committee, and other matters relating to its procedure and the
exercise of its powers.
20. From time to time the Board of Directors may appoint
any other committee or committees for any purpose or purposes,
which committee or committees shall have such powers and such
tenure of office as shall be specified in the resolution of
appointment. The chief executive officer of the Corporation
shall be a member ex officio of all committees of the Board.
7<PAGE>
Compensation and Reimbursement of Directors
and Members of the Executive Committee
21. Directors, other than salaried officers of the
Corporation or its affiliates, shall receive compensation and
benefits for their services as directors, at such rate or under
such conditions as shall be fixed from time to time by the Board,
and all directors shall be reimbursed for their reasonable
expenses, if any, of attendance at each regular or special
meeting of the Board of Directors.
22. Directors, other than salaried officers of the
Corporation or its affiliates, who are members of any committee
of the Board, shall receive compensation for their services as
such members as shall be fixed from time to time by the Board,
and shall be reimbursed for their reasonable expenses, if any, in
attending meetings of the Executive Committee or such other
Committees of the Board and of otherwise performing their duties
as members of such Committees.
Officers
23. The officers of the Corporation shall be chosen by a
vote of a majority of the directors in office and shall be a
President, one or more Vice Presidents, a Treasurer, a Secretary,
and a Comptroller, and may include a Chairman, one or more
Assistant Secretaries, one or more Assistant Treasurers, and one
or more Assistant Comptrollers. If a Chairman shall be chosen,
the Board of Directors shall designate either the Chairman or the
President as chief executive officer of the Corporation. If a
Chairman shall not be chosen, the President shall be the chief
executive officer of the Corporation. The Chairman and a
President who is designated chief executive officer of the
corporation shall be chosen from among the directors. A
President who is not chief executive officer of the Corporation
and none of the other officers need be a director. Neither the
Comptroller nor any Assistant Comptroller may occupy any other
office. With the above exceptions, any two offices may be
occupied and the duties thereof may be performed by one person,
but no officer shall execute, acknowledge or verify any
instrument in more than one capacity.
24. The salary and other compensation of the chief
executive officer of the Corporation shall be determined from
time to time by the Board of Directors. The salaries and other
compensation of all other officers of the Corporation shall be
determined from time to time by the chief executive officer,
subject to the concurrence of the Chairman.
25. The salary or other compensation of all employees
other than officers of the Corporation shall be fixed by the
chief executive officer of the Corporation or by such other
officer as shall be designated for that purpose by the Board of
Directors.
8<PAGE>
26. The Board of Directors may appoint such officers and
such representatives or agents as shall be deemed necessary, who
shall hold office for such terms, exercise such powers, and
perform such duties as shall be determined from time to time by
the Board of Directors.
27. The officers of the Corporation shall hold office
until the first meeting of the Board of Directors after the next
succeeding annual meeting of stockholders and until their
respective successors are chosen and qualify. Any officer
elected pursuant to Section 23 of the By-Laws may be removed at
any time, with or without cause, by the vote of a majority of the
directors in office. Any other officer and any representative,
employee or agent of the Corporation may be removed at any time,
with or without cause, by action of the Board of Directors, by
the Executive Committee, or the chief executive officer of the
Corporation, or such other officer as shall have been designated
for that purpose by the chief executive officer of the
Corporation.
The Chairman
28. (a) If a Chairman shall be chosen by the Board of
Directors, he shall preside at all meetings of the Board at which
he shall be present.
(b) If a Chairman shall be chosen by the Board of
Directors and if he shall be designated by the Board as chief
executive officer of the Corporation:
(i)he shall have supervision, direction and control
of the conduct of the business of the Corporation,
subject, however, to the control of the Board of
Directors and the Executive Committee, if there be
one;
(ii)he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the Cor-
poration, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporations;
(iii)he may, unless otherwise directed by the Board
of Directors pursuant to Section 38 of the By-Laws,
attend in person or by substitute or proxy
appointed by him and act and vote on behalf of the
Corporation at all meetings of stockholders of any
corporation in which the Corporation holds stock
and grant any consent, waiver, or power of attorney
in respect of such stock;
9<PAGE>
(iv)he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v)he shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
(c) If a Chairman shall be chosen by the Board of
Directors and if he shall not be designated by the Board as chief
executive officer of the Corporation.
(i)he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the Cor-
poration and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(ii)he shall have such other powers and perform
such other duties as may be prescribed from time to
time by law, by the By-Laws, or by the Board of
Directors.
The President
29. (a) If a Chairman shall not be chosen by the Board
of Directors, the President shall preside at all meetings of the
Board at which he shall be present.
(b) If the President shall be designated by the
Board of Directors as chief executive officer of the Corporation.
(i)he shall have supervision, direction and control
of the conduct of the business of the Corporation,
subject, however, to the control of the Board of
Directors and the Executive Committee if there be
one;
(ii)he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the Cor-
poration, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements, or
other instruments of any nature pertaining to the
business of the Corporation;
10<PAGE>
(iii)he may, unless otherwise directed by the Board
of Directors pursuant to Section 38 of the By-Laws,
attend in person or by substitute or proxy
appointed by him and act and vote on behalf of the
Corporation at all meetings of the stockholders of
any corporation in which the Corporation holds
stock and grant any consent, waiver, or power of
attorney in respect of such stock;
(iv)he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v)he shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
(c) If the Chairman shall be designated by the
Board of Directors as chief executive officer of the Corporation,
the President,
(i)shall be the chief operating officer of the
Corporation;
(ii)shall have supervision, direction and control
of the conduct of the business of the Corporation,
in the absence or disability of the Chairman,
subject, however, to the control of the Board of
Directors and the Executive Committee, if there be
one;
(iii)may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(iv)at the request or in the absence or disability
of the Chairman, may, unless otherwise directed by
the Board of Directors pursuant to Section 38 of
the By-Laws, attend in person or by substitute or
proxy appointed by him and act and vote on behalf
of the Corporation at all meetings of the
stockholders of any corporation in which the
Corporation holds stock and grant any consent,
waiver or power of attorney in respect of such
stock;
11<PAGE>
(v)at the request or in the absence or disability
of the Chairman, whenever in his opinion it may be
necessary or appropriate, shall prescribe the
duties of officers and employees of the Corporation
whose duties are not otherwise defined; and
(vi)shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
Vice President
30. (a) The Vice President shall, in the absence or
disability of the President, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 29(c)(ii) of the
By-Laws, have supervision, direction and control of the conduct
of the business of the Corporation, subject, however, to the
control of the Directors and the Executive Committee, if there be
one.
(b) He may sign in the name of and on behalf of the
Corporation any and all contracts, agreements or other
instruments pertaining to matters which arise in the ordinary
course of business of the Corporation, and when authorized by the
Board of Directors or the Executive Committee, if there be one,
except in cases where the signing thereof shall be expressly
delegated by the Board of Directors or the Executive Committee to
some other officer or agent of the Corporation.
(c) He may, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 29(c)(ii) of the
By-Laws, at the request or in the absence or disability of the
President or in case of the failure of the President to appoint a
substitute or proxy as provided in Subsections 29(b)(iii) and
29(c)(iv) of the By-Laws, unless otherwise directed by the Board
of Directors pursuant to Section 38 of the By-Laws, attend in
person or by substitute or proxy appointed by him and act and
vote on behalf of the Corporation at all meetings of the
stockholders of any corporation in which the Corporation holds
stock and grant any consent, waiver or power of attorney in
respect of such stock.
(d) He shall have such other powers and perform
such other duties as may be prescribed from time to time by law,
by the By-Laws, or by the Board of Directors.
(e) If there be more than one Vice President, the
Board of Directors may designate one or more of such Vice
Presidents as an Executive Vice President or a Senior Vice
President. The Board of Directors may assign to such Vice
Presidents their respective duties and may, if the President has
been designated chief executive officer of the Corporation or if
12<PAGE>
the President is acting pursuant to the provisions of Subsection
29(c)(ii) of the By-Laws, designate the order in which the
respective Vice Presidents shall have supervision, direction and
control of the business of the Corporation in the absence or
disability of the President.
The Secretary
31. (a) The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and
record all votes and the minutes of all proceedings in books to
be kept for that purpose; and he shall perform like duties for
the Executive Committee and any other committees created by the
Board of Directors.
(b) He shall give, or cause to be given, notice of
all meetings of the stockholders, the Board of Directors, or the
Executive Committee of which notice is required to be given by
law or by the By-Laws.
(c) He shall have such other powers and perform
such other duties as may be prescribed from time to time by law,
by the By-Laws, or the Board of Directors.
(d) Any records kept by the Secretary shall be the
property of the Corporation and shall be restored to the Corpora-
tion in case of his death, resignation, retirement or removal
from office.
(e) He shall be the custodian of the seal of the
Corporation and, pursuant to Section 45 of the By-Laws and in
other instances where the execution of documents on behalf of the
Corporation is authorized by the By-Laws or by the Board of
Directors, may affix the seal to all instruments requiring it and
attest the ensealing and the execution of such instruments.
(f) He shall have control of the stock ledger,
stock certificate book and all books containing minutes of any
meeting of the stockholders, Board of Directors, or Executive
Committee or other committee created by the Board of Directors,
and of all formal records and documents relating to the corporate
affairs of the Corporation.
(g) Any Assistant Secretary or Assistant Secretar-
ies shall assist the Secretary in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors.
The Treasurer
32. (a) The Treasurer shall be responsible for the
safekeeping of the corporate funds and securities of the Corpora-
tion, and shall maintain and keep in his custody full and
accurate accounts of receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and
13<PAGE>
other funds of the Corporation in the name and to the credit of
the Corporation, in such depositories as may be designated by the
Board of Directors.
(b) He shall disburse the funds of the Corporation
in such manner as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements.
(c) Pursuant to Section 45 of the By-Laws, he may,
when authorized by the Board of Directors, affix the seal to all
instruments requiring it and shall attest the ensealing and
execution of said instruments.
(d) He shall exhibit at all reasonable times his
accounts and records to any director of the Corporation upon
application during business hours at the office of the
Corporation where such accounts and records are kept.
(e) He shall render an account of all his
transactions as Treasurer at all regular meetings of the Board of
Directors, or whenever the Board may require it, and at such
other times as may be requested by the Board or by any director
of the Corporation.
(f) If required by the Board of Directors, he shall
give the Corporation a bond, the premium on which shall be paid
by the Corporation, in such form and amount and with such surety
or sureties as shall be satisfactory to the Board, for the
faithful performance of the duties of his office, and for the
restoration to the Corporation in case of his death, resignation,
retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
(g) He shall perform all duties generally incident
to the office of Treasurer, and shall have other powers and
duties as from time to time may be prescribed by law, by the By-
Laws, or by the Board of Directors.
(h) Any Assistant Treasurer or Assistant Treasurers
shall assist the Treasurer in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors. If
required by the Board of Directors, any Assistant Treasurer shall
give the Corporation a bond, the premium on which shall be paid
by the Corporation, similar to that which may be required to be
given by the Treasurer.
Comptroller
33. (a) The Comptroller of the Corporation shall be the
principal accounting officer of the Corporation and shall be
accountable and report directly to the Board of Directors. If
required by the Board of Directors, the Comptroller shall give
the Corporation a bond, the premium on which shall be paid by the
14<PAGE>
Corporation in such form and amount and with such surety or
sureties as shall be satisfactory to the Board, for the faithful
performance of the duties of his office.
(b) He shall keep or cause to be kept full and
complete books of account of all operations of the Corporation
and of its assets and liabilities.
(c) He shall have custody of all accounting records
of the Corporation other than the record of receipts and
disbursements and those relating to the deposit or custody of
money or securities of the Corporation, which shall be in the
custody of the Treasurer.
(d) He shall exhibit at all reasonable times his
books of account and records to any director of the Corporation
upon application during business hours at the office of the
Corporation where such books of account and records are kept.
(e) He shall render reports of the operations and
business and of the condition of the finances of the Corporation
at regular meetings of the Board of Directors, and at such other
times as he may be requested by the Board or any director of the
Corporation, and shall render a full financial report at the
annual meeting of the stockholders, if called upon to do so.
(f) He shall receive and keep in his custody an
original copy of each written contract made by or on behalf of
the Corporation.
(g) He shall receive periodic reports from the
Treasurer of the Corporation of all receipts and disbursements,
and shall see that correct vouchers are taken for all
disbursements for any purpose.
(h) He shall perform all duties generally incident
to the office of Comptroller, and shall have such other powers
and duties as from time to time may be prescribed by law, by the
By-Laws, or by the Board of Directors.
(i) Any Assistant Comptroller or Assistant
Comptrollers shall assist the Comptroller in the performance of
his duties, shall exercise his powers and duties at his request
or in his absence or disability and shall exercise such other
powers and duties as may be conferred or required by the Board of
Directors. If required by the Board of Directors, any Assistant
Comptroller shall give the Corporation a bond, the premium on
which shall be paid by the Corporation, similar to that which may
be required to be given by the Comptroller.
Vacancies
34. If the office of any director becomes vacant by
reason of death, resignation, retirement, disqualification, or
otherwise, the remaining directors, by the vote of a majority of
those then in office at a meeting, the notice of which shall have
15<PAGE>
specified the filling of such vacancy as one of its purposes may
choose a successor, who shall hold office for the unexpired term
in respect of which such vacancy occurs. If the office of any
officer of the Corporation shall become vacant for any reason,
the Board of Directors, at a meeting, the notice of which shall
have specified the filling of such vacancy as one of its
purposes, may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.
Pending action by the Board of Directors at such meeting, the
Board of Directors or the Executive Committee may choose a
successor temporarily to serve as an officer of the Corporation.
Resignations
35. Any officer or any director of the Corporation may
resign at any time, such resignation to be made in writing and
transmitted to the Secretary. Such resignation shall take effect
from the time of its acceptance, unless some time be fixed in the
resignation, and then from that time. Nothing herein shall be
deemed to relieve any officer from liability for breach of any
contract of employment resulting from any such resignation.
Duties of Officers May be Delegated
36. In case of the absence or disability of any officer
of the Corporation, or for any other reason the Board of
Directors may deem sufficient, the Board, by vote of a majority
of the total number of directors provided for in Section 10 of
the By-Laws may, notwithstanding any provisions of the By-Laws,
delegate or assign, for the time being, the powers or duties, or
any of them, of such officer to any other officer or to any
director.
Indemnification of Directors, Officers and Employees
37. (a) A director shall not be personally liable for
monetary damages as such for any action taken, or any failure to
take any action, unless the director has breached or failed to
perform the duties of his office under the General Corporation
Law of the State of Delaware, and the breach or failure to
perform constitutes self-dealing, willful misconduct or
recklessness. The provisions of this subsection (a) shall not
apply to the responsibility or liability of a director pursuant
to any criminal statute, or the liability of a director for the
payment of taxes pursuant to local, state or federal law.
(b) The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, whether
formal or informal, and whether brought by or in the right of the
Corporation or otherwise, by reason of the fact that he was a
director, officer or employee of the Corporation (and may
indemnify any person who was an agent of the Corporation), or a
person serving at the request of the Corporation as a director,
officer, partner, fiduciary or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other
16<PAGE>
enterprise, to the fullest extent permitted by law, including
without limitation indemnification against expenses (including
attorneys' fees and disbursements), damages, punitive damages,
judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection
with such proceeding unless the act or failure to act giving rise
to the claim for indemnification is finally determined by a court
to have constituted willful misconduct or recklessness.
(c) The Corporation shall pay the expenses
(including attorneys' fees and disbursements) actually and
reasonably incurred in defending a civil or criminal action, suit
or proceeding on behalf of any person entitled to indemnification
under subsection (b) in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such
person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation, and
may pay such expenses in advance on behalf of any agent on
receipt of a similar undertaking. The financial ability of such
person to make such repayment shall not be a prerequisite to the
making of an advance.
(d) For purposes of this Section: (i) the
Corporation shall be deemed to have requested an officer,
director, employee or agent to serve as fiduciary with respect to
an employee benefit plan where the performance by such person of
duties to the Corporation also imposes duties on, or otherwise
involves services by, such person of duties to the Corporation
also imposes duties on, or otherwise involves services by, such
person as a fiduciary with respect to the plan; (ii) excise taxes
assessed with respect to any transaction with an employee benefit
plan shall be deemed "fines"; and (iii) action taken or omitted
by such person with respect to any employee benefit plan in the
performance of duties for a purpose reasonably believed to be in
the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the
best interests of the Corporation.
(e) To further effect, satisfy or secure the
indemnification obligations provided herein or otherwise, the
Corporation may maintain insurance, obtain a letter of credit,
act as self-insurer, create a reserve, trust, escrow, cash
collateral or other fund or account, enter into indemnification
agreements, pledge or grant a security interest in any assets or
properties of the Corporation, or use any other mechanism or
arrangement whatsoever in such amounts, at such costs, and upon
such other terms and conditions as the Board of Directors shall
deem appropriate.
(f) All rights of indemnification under this
Section shall be deemed a contract between the Corporation and
the person entitled to indemnification under this Section
pursuant to which the Corporation and each such person intend to
be legally bound. Any repeal, amendment or modification hereof
17<PAGE>
shall be prospective only and shall not limit, but may expand,
any rights or obligations in respect of any proceeding whether
commenced prior to or after such change to the extent such
proceeding pertains to actions or failures to act occurring prior
to such change.
(g) The indemnification, as authorized by this
Section, shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any statute, agreement, vote of
shareholder, or disinterested directors or otherwise, both as to
action in an official capacity and as to action in any other
capacity while holding such office. The indemnification and
advancement of expenses provided by, or granted pursuant to, this
Section shall continue as to a person who has ceased to be an
officer, director, employee or agent in respect of matters
arising prior to such time, and shall inure to the benefit of the
heirs, executors and administrators of such person.
Stock of Other Corporations
38. The Board of Directors may authorize any director,
officer or other person on behalf of the Corporation to attend,
act and vote at meetings of the stockholders of any corporation
in which the Corporation shall hold stock, and to exercise
thereat any and all of the rights and powers incident to the
ownership of such stock and to execute waivers of notice of such
meetings and calls therefor.
Certificate of Stock
39. The certificates of stock of the Corporation shall be
numbered and shall be entered in the books of the Corporation as
they are issued. They shall exhibit the holder's name and number
of shares and may include his address. No fractional shares of
stock shall be issued. Certificates of stock shall be signed by
the Chairman, President or a Vice President and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the Corporation.
Where any certificate of stock is signed by a transfer agent or
transfer clerk, who may be but need not be an officer or employee
of the Corporation, and by a registrar, the signature of any such
Chairman, President, Vice President, Secretary, Assistant
Secretary, Treasurer, or Assistant Treasurer upon such
certificate who shall have ceased to be such before such
certificate of stock is issued, it may be issued by the
Corporation with the same effect as if such officer had not
ceased to be such at the date of its issue.
Transfer of Stock
40. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by
attorney, lawfully constituted in writing, and upon surrender of
the certificate therefor.
18<PAGE>
Fixing of Record Date
41. The Board of Directors is hereby authorized to fix a
time, not exceeding fifty (50) days preceding the date of any
meeting of stockholders or the date fixed for the payment of any
dividend or the making of any distribution, or for the delivery
of evidences of rights or evidences of interests arising out of
any change, conversion or exchange of capital stock, as a record
time for the determination of the stockholders entitled to notice
of and to vote at such meeting or entitled to receive any such
dividend, distribution, rights or interests as the case may be;
and all persons who are holders of record of capital stock at the
time so fixed and no others, shall be entitled to notice of and
to vote at such meeting, and only stockholders of record at such
time shall be entitled to receive any such notice, dividend,
distribution, rights or interests.
Registered Stockholders
42. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any
equitable or other claim to, or interest in, such share on the
part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by statutes of
the State of Delaware.
Lost Certificates
43. Any person claiming a certificate of stock to be lost
or destroyed shall make an affidavit or affirmation of that fact,
whereupon a new certificate may be issued of the same tenor and
for the same number of shares as the one alleged to be lost or
destroyed; provided, however, that the Board of Directors may
require, as a condition to the issuance of a new certificate, the
payment of the reasonable expenses of such issuance or the
furnishing of a bond of indemnity in such form and amount and
with such surety or sureties, or without surety, as the Board of
Directors shall determine, or both the payment of such expenses
and the furnishing of such bond, and may also require the
advertisement of such loss in such manner as the Board of
Directors may prescribe.
Inspection of Books
44. The Board of Directors may determine whether and to
what extent, and at what time the places and under what
conditions and regulations, the accounts and books of the
Corporation (other than the books required by statute to be open
to the inspection of stockholders), or any of them, shall be
open to the inspection of stockholders, and no stockholder shall
have any right to inspect any account or book or document of the
Corporation, except as such right may be conferred by statutes of
the State of Delaware or by the By-Laws or by resolution of the
Board of Directors or of the stockholders.
19<PAGE>
Checks, Notes, Bonds and Other Instruments
45. A. All checks or demands for money and notes of
the Corporation shall be signed by such person or persons (who
may but need not be an officer of officers of the Corporation) as
the Board of Directors may from time to time designate, either
directly or through such officers of the Corporation as shall, by
resolution of the Board of Directors, be authorized to designate
such person or persons. If authorized by the Board of Directors,
the signatures of such persons, or any of them, upon any checks
for the payment of money may be made by engraving, lithographing
or printing thereon a facsimile of such signatures, in lieu of
actual signatures, and such facsimile signatures so engraved,
lithographed or printed thereon shall have the same force and
effect as if such persons had actually signed the same.
B. All bonds, mortgages and other instruments
requiring a seal, when required in connection with matters which
arise in the ordinary course of business or when authorized by
the Board of Directors, shall be executed on behalf of the
Corporation by the Chairman or the President or a Vice President,
and the seal of the Corporation shall be thereupon affixed by the
Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, who shall, when required, attest the
ensealing and execution of said instrument. If authorized by the
Board of Directors, a facsimile of the seal may be employed and
such facsimile of the seal may be engraved, lithographed or
printed and shall have the same force and effect as an impressed
seal. If authorized by the Board of Directors, the signatures of
the Chairman or the President or a Vice President and the
Secretary or an Assistant Secretary or the Treasurer or
Assistant Treasurer upon any engraved, lithographed or printed
bonds, debentures, notes or other instruments may be made by
engraving, lithographing or printing thereon a facsimile of such
signatures, in lieu of actual signatures, and such facsimile
signatures so engraved, lithographed or printed thereon shall
have the same force and effect as if such officers had actually
signed the same. In case any officer who has signed, or whose
facsimile signature appears on, any such bonds, debentures, notes
or other instruments shall cease to be such officer before such
bonds, debentures, notes or other instruments shall have been
delivered by the Corporation, such bonds, debentures, notes or
other instruments may nevertheless be adopted by the Corporation
and be issued and delivered as though the person who signed the
same, or whose facsimile signature appears thereon, had not
ceased to be such officer of the Corporation.
20<PAGE>
Receipts for Securities
46. All receipts for stocks, bonds or other securities
received by the Corporation shall be signed by the Treasurer or
an Assistant Treasurer, or by such other person or persons as the
Board of Directors or Executive Committee shall designate.
Fiscal Year
47. The fiscal year shall begin the first day of January
in each year.
Dividends
48. (a) Dividends in the form of cash or securities,
upon the capital stock of the Corporation, to the extent
permitted by law may be declared by the Board of Directors at any
regular or special meeting.
(b) The Board of Directors shall have power to fix
and determine, and from time to time to vary, the amount to be
reserved as working capital; to determine whether any, and if
any, what part of any, surplus of the Corporation shall be
declared as dividends; to determine the date or dates for the
declaration and payment or distribution of dividends; and, before
payment of any dividend or the making of any distribution to set
aside out of the surplus of the Corporation such amount or
amounts as the Board of Directors from time to time, in its
absolute discretion, may think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for such other
purpose as it shall deem to be in the interest of the
Corporation.
Directors' Annual Statement
49. The Board of Directors shall present or cause to be
presented at each annual meeting of stockholders, and when called
for by vote of the stockholders at any special meeting of the
stockholders, a full and clear statement of the business and
condition of the Corporation.
Notices
50. (a) Whenever under the provisions of the By-Laws
notice is required to be given to any director, officer of
stockholder, it shall not be construed to require personal
notice, but, except as otherwise specifically provided, such
notice may be given in writing, by mail, by depositing a copy of
the same in a post office, letter box or mail chute, maintained
by the United States Postal Service, postage prepaid, addressed
to such stockholder, officer or director, at his address as the
same appears on the books of the Corporation.
(b) A stockholder, director or officer may waive in
writing any notice required to be given to him by law or by the
By-Laws.
21<PAGE>
Participation in Meetings by Telephone
51. At any meeting of the Board of Directors or the
Executive Committee or any other committee designated by the
Board of Directors, one or more directors may participate in such
meeting in lieu of attendance in person by means of the
conference telephone or similar communications equipment by means
of which all persons participating in the meeting will be able to
hear and speak.
Oath of Judges of Election
52. The judges of election appointed to act at any
meeting of the stockholders shall, before entering upon the
discharge of their duties, be sworn faithfully to execute the
duties of judge at such meeting with strict impartiality and
according to the best of their ability.
Amendments
53. The By-Laws may be altered or amended by the
affirmative vote of the holders of a majority of the capital
stock represented and entitled to vote at a meeting of the
stockholders duly held, provided that the notice of such meeting
shall have included notice of such proposed amendment. The By-
Laws may also be altered or amended by the affirmative vote of a
majority of the directors in office at a meeting of the Board of
Directors, the notice of which shall have included notice of the
proposed amendment. In the event of the adoption, amendment, or
repeal of any By-Law by the Board of Directors pursuant to this
Section, there shall be set forth in the notice of the next
meeting of stockholders for the election of directors the By-Law
so adopted, amended, or repealed together with a concise
statement of the changes made. By the affirmative vote of the
holders of a majority of the capital stock represented and
entitled to vote at such meeting, the By-Laws may, without
further notice, be altered or amended by amending or repealing
such action by the Board of Directors.
22<PAGE>
EXHIBIT B-93
________________________
EI POWER CHINA II, INC.
By-Laws
________________________<PAGE>
EI POWER CHINA II, INC.
BY-LAWS
Offices
1. The principal office of EI Power China II, Inc. (the
"Corporation") shall be in Parsippany, New Jersey. The
Corporation may also have offices at such other places as the
Board of Directors may from time to time designate or the
business of the Corporation may require.
Seal
2. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization, and the
words "Corporate Seal" and "Delaware". If authorized by the
Board of Directors, the corporate seal may be affixed to any
certificates of stock, bonds, debentures, notes or other
engraved, lithographed or printed instruments, by engraving,
lithographing or printing thereon such seal or a facsimile
thereof, and such seal or facsimile thereof so engraved,
lithographed or printed thereon shall have the same force and
effect, for all purposes, as if such corporate seal had been
affixed thereto by indentation.
Stockholders' Meetings
3. All meetings of stockholders shall be held at the
principal office of the Corporation or at such other place as
shall be stated in the notice of the meeting. Such meetings
shall be presided over by the chief executive officer of the
Corporation, or, in his absence, by such other officer as shall
have been designated for the purpose by the Board of Directors,
except when by statute the election of a presiding officer is
required.
4. Annual meetings of stockholders shall be held during
the month of May in each year on such day and at such time as
shall be determined by the Board of Directors and specified in
the notice of the meeting. At the annual meeting, the
stockholders entitled to vote shall elect by ballot a Board of
Directors and transact such other business as may properly be
brought before the meeting. Prior to any meeting of stockholders
at which an election of directors is to be held, the Board of
Directors shall appoint one judge of election to serve at such
meeting. If there be a failure to appoint a judge or if such
judge be absent or refuse to act or if his office becomes vacant,
the stockholders present at the meeting, by a per capita vote,
shall choose temporary judges of the number required. No
director or officer of the Corporation shall be eligible to
appointment or election as a judge.
2<PAGE>
5. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the
shares of stock of the Corporation issued and outstanding and
entitled to vote, present in person or by proxy, shall be
requisite for, and shall constitute a quorum at, any meeting of
the stockholders. If, however, the holders of a majority of such
shares of stock shall not be present or represented by proxy at
any such meeting, the stockholders entitled to vote thereat,
present in person or by proxy, shall have power, by vote of the
holders of a majority of the shares of capital stock present or
represented at the meeting, to adjourn the meeting from time to
time without notice other than announcement at the meeting, until
the holders of the amount of stock requisite to constitute a
quorum, as aforesaid, shall be present in person or by proxy. At
any adjourned meeting at which such quorum shall be present, in
person or by proxy, any business may be transacted which might
have been transacted at the meeting as originally noticed.
6. At each meeting of stockholders each holder of record
of shares of capital stock then entitled to vote shall be
entitled to vote in person, or by proxy appointed by instrument
executed in writing by such stockholders or by his duly
authorized attorney; but no proxy shall be valid after the
expiration of eleven months from the date of its execution unless
the stockholder executing it shall have specified therein the
length of time it is to continue in force, which shall be for
some specified period. At all elections of directors each holder
of record of shares of capital stock then entitled to vote, shall
be entitled to as many votes as shall equal the number of votes
which (except for such provision) he would be entitled to cast
for the election of directors with respect to his shares of stock
multiplied by the number of directors to be elected and he may
cast all such votes for a single director or may distribute them
among the number to be voted for, or any two or more of them, as
he may see fit. Except as otherwise provided by law or by the
Certificate of Incorporation, each holder of record of shares of
capital stock entitled to vote at any meeting of stockholders
shall be entitled to one vote for every share of capital stock
standing in his name on the books of the Corporation. Shares of
capital stock of the Corporation belonging to the Corporation or
to a corporation controlled by the Corporation through stock
ownership or through majority representation on the board of
directors thereof, shall not be voted. All elections shall be
determined by a plurality vote, and, except as otherwise provided
by law or by the Certificate of Incorporation all other matters
shall be determined by a vote of the holders of a majority of the
shares of the capital stock present or represented at a meeting
and voting on such questions.
7. A complete list of the stockholders entitled to vote
at any meeting of stockholders, arranged in alphabetical order,
with the residence of each, and the number of shares held by
each, shall be prepared by the Secretary and filed in the
principal office of the Corporation at least fifteen days before
the meeting, and shall be open to the examination of any
3<PAGE>
stockholder at all times prior to such meeting, during the usual
hours for business, and shall be available at the time and place
of such meeting and open to the examination of any stockholder.
8. Special meetings of the stockholders for any purpose
or purposes, unless otherwise prescribed by law, may be called by
the Chairman or by the President, and shall be called by the
chief executive officer or Secretary at the request in writing of
any three members of the Board of Directors, or at the request in
writing of holders of record of ten percent of the shares of
capital stock of the Corporation issued and outstanding.
Business transacted at all special meetings of the stockholders
shall be confined to the purposes stated in the call.
9. (a) Notice of every meeting of stockholders,
setting forth the time and the place and briefly the purpose or
purposes thereof, shall be mailed, not less than ten nor more
than fifty days prior to such meeting, to each stockholder of
record (at his address appearing on the stock books of the
Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be
mailed to some other address, in which case it shall be mailed to
the address designated in such request) as of a date fixed by the
Board of Directors pursuant to Section 41 of the By-Laws. Except
as otherwise provided by law, the Certificate of Incorporation or
the By-Laws, items of business, in addition to those specified in
the notice of meeting, may be transacted at the annual meeting.
(b) Whenever by any provision of law, the vote of
stockholders at a meeting thereof is required or permitted to be
taken in connection with any corporate action, the meeting and
vote of stockholders may be dispensed with, if all the stock-
holders who would have been entitled to vote upon the action if
such meeting were held, shall consent in writing to such
corporate action being taken, and all such consents shall be
filed with the Secretary of the Corporation. However, this
section shall not be construed to alter or modify any provision
of law or of the Certificate of Incorporation under which the
written consent of the holders of less than all outstanding
shares is sufficient for corporate action.
Directors
10. The business and affairs of the Corporation shall be
managed by its Board of Directors, which shall consist of not
less than one nor more than nine directors as shall be fixed from
time to time by a resolution adopted by a majority of the entire
Board of Directors; provided, however, that no decrease in the
number of directors constituting the entire Board of Directors
shall shorten the term of any incumbent director. Each director
shall be at least twenty-one years of age. Directors need not be
stockholders of the Corporation. Directors shall be elected at
the annual meeting of stockholders, or, if any such election
shall not be held, at a stockholders' meeting called and held in
accordance with the provisions of the General Corporation Law of
4<PAGE>
the State of Delaware. Each director shall serve until the next
annual meeting of stockholders and thereafter until his successor
shall have been elected and shall qualify.
11. In addition to the powers and authority by the By-
Laws expressly conferred upon it, the Board of Directors may
exercise all such powers of the Corporation and do all such
lawful acts and things as are not by law or by the Certificate of
Incorporation, or by the By-Laws directed or required to be
exercised or done by the stockholders.
12. Unless otherwise required by law, in the absence of
fraud no contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation
and any corporation, partnership, association or other
organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for such reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors which authorize the contract or
transaction, or solely because his votes are counted for such
purpose if:
(a) The material facts as to his interest and as to
the contract or transaction are disclosed or are
known to the Board of Directors, and the Board in
good faith authorizes the contract or transaction by
a vote sufficient for such purposes without counting
the vote of the interested director or directors; or
(b) The material facts as to his interest and as to
the contract or transaction are disclosed or known to
the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved
or ratified by the Board of Directors or the stock-
holders.
No director or officer shall be liable to account to
the Corporation for any profit realized by him from or through
any such contract or transaction of the Corporation by reason of
his interest as aforesaid in such contract or transaction if such
contract or transaction shall be authorized, approved or ratified
as aforesaid.
No contract or other transaction between the
Corporation and any of its affiliates shall in any case be void
or voidable or otherwise affected because of the fact that
directors or officers of the Corporation are directors or
officers of such affiliate, nor shall any such director or
officer, because of such relation, be deemed interested in such
5<PAGE>
contract or other transaction under any of the provisions of this
Section 12, nor shall any such director be liable to account
because of such relation. For the purposes of this Section 12,
the term "affiliate" shall mean any corporation which is an
"affiliate" of the Corporation within the meaning of the Public
Utility Holding Company Act of 1935, as said Act shall at the
time be in effect.
Nothing herein shall create liability in any of the
events described in this Section 12 or prevent the authorization,
ratification or approval, in any other manner provided by law, of
any contract or transaction described in this Section 12.
Meetings of the Board of Directors
13. The first meeting of the Board of Directors, for the
purpose of organization, the election of officers, and the
transaction of any other business which may come before the
meeting, shall be held on call of the Chairman within one week
after the annual meeting of stockholders. If the Chairman shall
fail to call such meeting, it may be called by the President or
by any director. Notice of such meeting shall be given in the
manner prescribed for Special Meetings of the Board of Directors.
14. Regular meetings of the Board of Directors may be
held without notice except for the purpose of taking action on
matters as to which notice is in the By-Laws required to be
given, at such time and place as shall from time to time be
designated by the Board, but in any event at intervals of not
more than three months. Special meetings of the Board of
Directors may be called by the Chairman or by the President or in
the absence or disability of the Chairman and the President, by a
Vice President, or by any two directors, and may be held at the
time and place designated in the call and notice of the meeting.
15. Except as otherwise provided by the By-Laws, any item
or business may be transacted at any meeting of the Board of
Directors, whether or not such item of business shall have been
specified in the notice of meeting. Where notice of any meeting
of the Board of Directors is required to be given by the By-Laws,
the Secretary or other officer performing his duties shall give
notice either personally or by telephone or telegraph at least
twenty-four hours before the meeting, or by mail at least three
days before the meeting. Meetings may be held at any time and
place without notice if all the directors are present or if those
not present waive notice in writing either before or after the
meeting.
16. At all meetings of the Board of Directors a majority
of the directors in office shall be requisite for, and shall
constitute, a quorum for the transaction of business, and the act
of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors,
6<PAGE>
except as may be otherwise specifically provided by law or by the
Certificate of Incorporation, as amended, or by the By-Laws.
17. Any regular or special meeting may be adjourned to
any time or place by a majority of the directors present at the
meeting, whether or not a quorum shall be present at such
meeting, and no notice of the adjourned meeting shall be required
other than announcement at the meeting.
Committees
18. The Board of Directors may, by the vote of a majority
of the directors in office, create an Executive Committee,
consisting of two or more members, of whom one shall be the chief
executive officer of the Corporation. The other members of the
Executive Committee shall be designated by the Board of Directors
from their number, shall hold office for such period as the Board
of Directors shall determine and may be removed at any time by
the Board of Directors. When a member of the Executive
Committee ceases to be a director, he shall cease to be a member
of the Executive Committee. The Executive Committee shall have
all the powers specifically granted to it by the By-Laws and,
between meetings of the Board of Directors, may also exercise all
the powers of the Board of Directors except such powers as the
Board of Directors may exercise by virtue of Section 11 of the
By-Laws. The Executive Committee shall have no power to revoke
any action taken by the Board of Directors, and shall be subject
to any restriction imposed by law, by the By-Laws, or by the
Board of Directors.
19. The Executive Committee shall cause to be kept
regular minutes of its proceedings, which may be transcribed in
the regular minute book of the Corporation, and all such
proceedings shall be reported to the Board of Directors at its
next succeeding meeting, and the action of the Executive
Committee shall be subject to revision or alteration by the Board
of Directors, provided that no rights which, in the absence of
such revision of alteration, third persons would have had shall
be affected by such revision or alteration. A majority of the
Executive Committee shall constitute a quorum at any meeting.
The Board of Directors may by vote of a majority of the total
number of directors provided for in Section 10 of the By-Laws
fill any vacancies in the Executive Committee. The Executive
Committee shall designate one of its number as Chairman of the
Executive Committee and may, from time to time, prescribe rules
and regulations for the calling and conduct of meetings of the
Committee, and other matters relating to its procedure and the
exercise of its powers.
20. From time to time the Board of Directors may appoint
any other committee or committees for any purpose or purposes,
which committee or committees shall have such powers and such
tenure of office as shall be specified in the resolution of
appointment. The chief executive officer of the Corporation
shall be a member ex officio of all committees of the Board.
7<PAGE>
Compensation and Reimbursement of Directors
and Members of the Executive Committee
21. Directors, other than salaried officers of the
Corporation or its affiliates, shall receive compensation and
benefits for their services as directors, at such rate or under
such conditions as shall be fixed from time to time by the Board,
and all directors shall be reimbursed for their reasonable
expenses, if any, of attendance at each regular or special
meeting of the Board of Directors.
22. Directors, other than salaried officers of the
Corporation or its affiliates, who are members of any committee
of the Board, shall receive compensation for their services as
such members as shall be fixed from time to time by the Board,
and shall be reimbursed for their reasonable expenses, if any, in
attending meetings of the Executive Committee or such other
Committees of the Board and of otherwise performing their duties
as members of such Committees.
Officers
23. The officers of the Corporation shall be chosen by a
vote of a majority of the directors in office and shall be a
President, one or more Vice Presidents, a Treasurer, a Secretary,
and a Comptroller, and may include a Chairman, one or more
Assistant Secretaries, one or more Assistant Treasurers, and one
or more Assistant Comptrollers. If a Chairman shall be chosen,
the Board of Directors shall designate either the Chairman or the
President as chief executive officer of the Corporation. If a
Chairman shall not be chosen, the President shall be the chief
executive officer of the Corporation. The Chairman and a
President who is designated chief executive officer of the
corporation shall be chosen from among the directors. A
President who is not chief executive officer of the Corporation
and none of the other officers need be a director. Neither the
Comptroller nor any Assistant Comptroller may occupy any other
office. With the above exceptions, any two offices may be
occupied and the duties thereof may be performed by one person,
but no officer shall execute, acknowledge or verify any
instrument in more than one capacity.
24. The salary and other compensation of the chief
executive officer of the Corporation shall be determined from
time to time by the Board of Directors. The salaries and other
compensation of all other officers of the Corporation shall be
determined from time to time by the chief executive officer,
subject to the concurrence of the Chairman.
25. The salary or other compensation of all employees
other than officers of the Corporation shall be fixed by the
chief executive officer of the Corporation or by such other
officer as shall be designated for that purpose by the Board of
Directors.
8<PAGE>
26. The Board of Directors may appoint such officers and
such representatives or agents as shall be deemed necessary, who
shall hold office for such terms, exercise such powers, and
perform such duties as shall be determined from time to time by
the Board of Directors.
27. The officers of the Corporation shall hold office
until the first meeting of the Board of Directors after the next
succeeding annual meeting of stockholders and until their
respective successors are chosen and qualify. Any officer
elected pursuant to Section 23 of the By-Laws may be removed at
any time, with or without cause, by the vote of a majority of the
directors in office. Any other officer and any representative,
employee or agent of the Corporation may be removed at any time,
with or without cause, by action of the Board of Directors, by
the Executive Committee, or the chief executive officer of the
Corporation, or such other officer as shall have been designated
for that purpose by the chief executive officer of the
Corporation.
The Chairman
28. (a) If a Chairman shall be chosen by the Board of
Directors, he shall preside at all meetings of the Board at which
he shall be present.
(b) If a Chairman shall be chosen by the Board of
Directors and if he shall be designated by the Board as chief
executive officer of the Corporation:
(i)he shall have supervision, direction and control
of the conduct of the business of the Corporation,
subject, however, to the control of the Board of
Directors and the Executive Committee, if there be
one;
(ii)he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the Cor-
poration, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporations;
(iii)he may, unless otherwise directed by the Board
of Directors pursuant to Section 38 of the By-Laws,
attend in person or by substitute or proxy
appointed by him and act and vote on behalf of the
Corporation at all meetings of stockholders of any
corporation in which the Corporation holds stock
and grant any consent, waiver, or power of attorney
in respect of such stock;
9<PAGE>
(iv)he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v)he shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
(c) If a Chairman shall be chosen by the Board of
Directors and if he shall not be designated by the Board as chief
executive officer of the Corporation.
(i)he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the Cor-
poration and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(ii)he shall have such other powers and perform
such other duties as may be prescribed from time to
time by law, by the By-Laws, or by the Board of
Directors.
The President
29. (a) If a Chairman shall not be chosen by the Board
of Directors, the President shall preside at all meetings of the
Board at which he shall be present.
(b) If the President shall be designated by the
Board of Directors as chief executive officer of the Corporation.
(i)he shall have supervision, direction and control
of the conduct of the business of the Corporation,
subject, however, to the control of the Board of
Directors and the Executive Committee if there be
one;
(ii)he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the Cor-
poration, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements, or
other instruments of any nature pertaining to the
business of the Corporation;
10<PAGE>
(iii)he may, unless otherwise directed by the Board
of Directors pursuant to Section 38 of the By-Laws,
attend in person or by substitute or proxy
appointed by him and act and vote on behalf of the
Corporation at all meetings of the stockholders of
any corporation in which the Corporation holds
stock and grant any consent, waiver, or power of
attorney in respect of such stock;
(iv)he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v)he shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
(c) If the Chairman shall be designated by the
Board of Directors as chief executive officer of the Corporation,
the President,
(i)shall be the chief operating officer of the
Corporation;
(ii)shall have supervision, direction and control
of the conduct of the business of the Corporation,
in the absence or disability of the Chairman,
subject, however, to the control of the Board of
Directors and the Executive Committee, if there be
one;
(iii)may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(iv)at the request or in the absence or disability
of the Chairman, may, unless otherwise directed by
the Board of Directors pursuant to Section 38 of
the By-Laws, attend in person or by substitute or
proxy appointed by him and act and vote on behalf
of the Corporation at all meetings of the
stockholders of any corporation in which the
Corporation holds stock and grant any consent,
waiver or power of attorney in respect of such
stock;
11<PAGE>
(v)at the request or in the absence or disability
of the Chairman, whenever in his opinion it may be
necessary or appropriate, shall prescribe the
duties of officers and employees of the Corporation
whose duties are not otherwise defined; and
(vi)shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
Vice President
30. (a) The Vice President shall, in the absence or
disability of the President, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 29(c)(ii) of the
By-Laws, have supervision, direction and control of the conduct
of the business of the Corporation, subject, however, to the
control of the Directors and the Executive Committee, if there be
one.
(b) He may sign in the name of and on behalf of the
Corporation any and all contracts, agreements or other
instruments pertaining to matters which arise in the ordinary
course of business of the Corporation, and when authorized by the
Board of Directors or the Executive Committee, if there be one,
except in cases where the signing thereof shall be expressly
delegated by the Board of Directors or the Executive Committee to
some other officer or agent of the Corporation.
(c) He may, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 29(c)(ii) of the
By-Laws, at the request or in the absence or disability of the
President or in case of the failure of the President to appoint a
substitute or proxy as provided in Subsections 29(b)(iii) and
29(c)(iv) of the By-Laws, unless otherwise directed by the Board
of Directors pursuant to Section 38 of the By-Laws, attend in
person or by substitute or proxy appointed by him and act and
vote on behalf of the Corporation at all meetings of the
stockholders of any corporation in which the Corporation holds
stock and grant any consent, waiver or power of attorney in
respect of such stock.
(d) He shall have such other powers and perform
such other duties as may be prescribed from time to time by law,
by the By-Laws, or by the Board of Directors.
(e) If there be more than one Vice President, the
Board of Directors may designate one or more of such Vice
Presidents as an Executive Vice President or a Senior Vice
President. The Board of Directors may assign to such Vice
Presidents their respective duties and may, if the President has
been designated chief executive officer of the Corporation or if
12<PAGE>
the President is acting pursuant to the provisions of Subsection
29(c)(ii) of the By-Laws, designate the order in which the
respective Vice Presidents shall have supervision, direction and
control of the business of the Corporation in the absence or
disability of the President.
The Secretary
31. (a) The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and
record all votes and the minutes of all proceedings in books to
be kept for that purpose; and he shall perform like duties for
the Executive Committee and any other committees created by the
Board of Directors.
(b) He shall give, or cause to be given, notice of
all meetings of the stockholders, the Board of Directors, or the
Executive Committee of which notice is required to be given by
law or by the By-Laws.
(c) He shall have such other powers and perform
such other duties as may be prescribed from time to time by law,
by the By-Laws, or the Board of Directors.
(d) Any records kept by the Secretary shall be the
property of the Corporation and shall be restored to the Corpora-
tion in case of his death, resignation, retirement or removal
from office.
(e) He shall be the custodian of the seal of the
Corporation and, pursuant to Section 45 of the By-Laws and in
other instances where the execution of documents on behalf of the
Corporation is authorized by the By-Laws or by the Board of
Directors, may affix the seal to all instruments requiring it and
attest the ensealing and the execution of such instruments.
(f) He shall have control of the stock ledger,
stock certificate book and all books containing minutes of any
meeting of the stockholders, Board of Directors, or Executive
Committee or other committee created by the Board of Directors,
and of all formal records and documents relating to the corporate
affairs of the Corporation.
(g) Any Assistant Secretary or Assistant Secretar-
ies shall assist the Secretary in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors.
The Treasurer
32. (a) The Treasurer shall be responsible for the
safekeeping of the corporate funds and securities of the Corpora-
tion, and shall maintain and keep in his custody full and
accurate accounts of receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and
13<PAGE>
other funds of the Corporation in the name and to the credit of
the Corporation, in such depositories as may be designated by the
Board of Directors.
(b) He shall disburse the funds of the Corporation
in such manner as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements.
(c) Pursuant to Section 45 of the By-Laws, he may,
when authorized by the Board of Directors, affix the seal to all
instruments requiring it and shall attest the ensealing and
execution of said instruments.
(d) He shall exhibit at all reasonable times his
accounts and records to any director of the Corporation upon
application during business hours at the office of the
Corporation where such accounts and records are kept.
(e) He shall render an account of all his
transactions as Treasurer at all regular meetings of the Board of
Directors, or whenever the Board may require it, and at such
other times as may be requested by the Board or by any director
of the Corporation.
(f) If required by the Board of Directors, he shall
give the Corporation a bond, the premium on which shall be paid
by the Corporation, in such form and amount and with such surety
or sureties as shall be satisfactory to the Board, for the
faithful performance of the duties of his office, and for the
restoration to the Corporation in case of his death, resignation,
retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
(g) He shall perform all duties generally incident
to the office of Treasurer, and shall have other powers and
duties as from time to time may be prescribed by law, by the By-
Laws, or by the Board of Directors.
(h) Any Assistant Treasurer or Assistant Treasurers
shall assist the Treasurer in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors. If
required by the Board of Directors, any Assistant Treasurer shall
give the Corporation a bond, the premium on which shall be paid
by the Corporation, similar to that which may be required to be
given by the Treasurer.
Comptroller
33. (a) The Comptroller of the Corporation shall be the
principal accounting officer of the Corporation and shall be
accountable and report directly to the Board of Directors. If
required by the Board of Directors, the Comptroller shall give
the Corporation a bond, the premium on which shall be paid by the
14<PAGE>
Corporation in such form and amount and with such surety or
sureties as shall be satisfactory to the Board, for the faithful
performance of the duties of his office.
(b) He shall keep or cause to be kept full and
complete books of account of all operations of the Corporation
and of its assets and liabilities.
(c) He shall have custody of all accounting records
of the Corporation other than the record of receipts and
disbursements and those relating to the deposit or custody of
money or securities of the Corporation, which shall be in the
custody of the Treasurer.
(d) He shall exhibit at all reasonable times his
books of account and records to any director of the Corporation
upon application during business hours at the office of the
Corporation where such books of account and records are kept.
(e) He shall render reports of the operations and
business and of the condition of the finances of the Corporation
at regular meetings of the Board of Directors, and at such other
times as he may be requested by the Board or any director of the
Corporation, and shall render a full financial report at the
annual meeting of the stockholders, if called upon to do so.
(f) He shall receive and keep in his custody an
original copy of each written contract made by or on behalf of
the Corporation.
(g) He shall receive periodic reports from the
Treasurer of the Corporation of all receipts and disbursements,
and shall see that correct vouchers are taken for all
disbursements for any purpose.
(h) He shall perform all duties generally incident
to the office of Comptroller, and shall have such other powers
and duties as from time to time may be prescribed by law, by the
By-Laws, or by the Board of Directors.
(i) Any Assistant Comptroller or Assistant
Comptrollers shall assist the Comptroller in the performance of
his duties, shall exercise his powers and duties at his request
or in his absence or disability and shall exercise such other
powers and duties as may be conferred or required by the Board of
Directors. If required by the Board of Directors, any Assistant
Comptroller shall give the Corporation a bond, the premium on
which shall be paid by the Corporation, similar to that which may
be required to be given by the Comptroller.
Vacancies
34. If the office of any director becomes vacant by
reason of death, resignation, retirement, disqualification, or
otherwise, the remaining directors, by the vote of a majority of
those then in office at a meeting, the notice of which shall have
15<PAGE>
specified the filling of such vacancy as one of its purposes may
choose a successor, who shall hold office for the unexpired term
in respect of which such vacancy occurs. If the office of any
officer of the Corporation shall become vacant for any reason,
the Board of Directors, at a meeting, the notice of which shall
have specified the filling of such vacancy as one of its
purposes, may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.
Pending action by the Board of Directors at such meeting, the
Board of Directors or the Executive Committee may choose a
successor temporarily to serve as an officer of the Corporation.
Resignations
35. Any officer or any director of the Corporation may
resign at any time, such resignation to be made in writing and
transmitted to the Secretary. Such resignation shall take effect
from the time of its acceptance, unless some time be fixed in the
resignation, and then from that time. Nothing herein shall be
deemed to relieve any officer from liability for breach of any
contract of employment resulting from any such resignation.
Duties of Officers May be Delegated
36. In case of the absence or disability of any officer
of the Corporation, or for any other reason the Board of
Directors may deem sufficient, the Board, by vote of a majority
of the total number of directors provided for in Section 10 of
the By-Laws may, notwithstanding any provisions of the By-Laws,
delegate or assign, for the time being, the powers or duties, or
any of them, of such officer to any other officer or to any
director.
Indemnification of Directors, Officers and Employees
37. (a) A director shall not be personally liable for
monetary damages as such for any action taken, or any failure to
take any action, unless the director has breached or failed to
perform the duties of his office under the General Corporation
Law of the State of Delaware, and the breach or failure to
perform constitutes self-dealing, willful misconduct or
recklessness. The provisions of this subsection (a) shall not
apply to the responsibility or liability of a director pursuant
to any criminal statute, or the liability of a director for the
payment of taxes pursuant to local, state or federal law.
(b) The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, whether
formal or informal, and whether brought by or in the right of the
Corporation or otherwise, by reason of the fact that he was a
director, officer or employee of the Corporation (and may
indemnify any person who was an agent of the Corporation), or a
person serving at the request of the Corporation as a director,
officer, partner, fiduciary or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other
16<PAGE>
enterprise, to the fullest extent permitted by law, including
without limitation indemnification against expenses (including
attorneys' fees and disbursements), damages, punitive damages,
judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection
with such proceeding unless the act or failure to act giving rise
to the claim for indemnification is finally determined by a court
to have constituted willful misconduct or recklessness.
(c) The Corporation shall pay the expenses
(including attorneys' fees and disbursements) actually and
reasonably incurred in defending a civil or criminal action, suit
or proceeding on behalf of any person entitled to indemnification
under subsection (b) in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such
person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation, and
may pay such expenses in advance on behalf of any agent on
receipt of a similar undertaking. The financial ability of such
person to make such repayment shall not be a prerequisite to the
making of an advance.
(d) For purposes of this Section: (i) the
Corporation shall be deemed to have requested an officer,
director, employee or agent to serve as fiduciary with respect to
an employee benefit plan where the performance by such person of
duties to the Corporation also imposes duties on, or otherwise
involves services by, such person of duties to the Corporation
also imposes duties on, or otherwise involves services by, such
person as a fiduciary with respect to the plan; (ii) excise taxes
assessed with respect to any transaction with an employee benefit
plan shall be deemed "fines"; and (iii) action taken or omitted
by such person with respect to any employee benefit plan in the
performance of duties for a purpose reasonably believed to be in
the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the
best interests of the Corporation.
(e) To further effect, satisfy or secure the
indemnification obligations provided herein or otherwise, the
Corporation may maintain insurance, obtain a letter of credit,
act as self-insurer, create a reserve, trust, escrow, cash
collateral or other fund or account, enter into indemnification
agreements, pledge or grant a security interest in any assets or
properties of the Corporation, or use any other mechanism or
arrangement whatsoever in such amounts, at such costs, and upon
such other terms and conditions as the Board of Directors shall
deem appropriate.
(f) All rights of indemnification under this
Section shall be deemed a contract between the Corporation and
the person entitled to indemnification under this Section
pursuant to which the Corporation and each such person intend to
be legally bound. Any repeal, amendment or modification hereof
17<PAGE>
shall be prospective only and shall not limit, but may expand,
any rights or obligations in respect of any proceeding whether
commenced prior to or after such change to the extent such
proceeding pertains to actions or failures to act occurring prior
to such change.
(g) The indemnification, as authorized by this
Section, shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any statute, agreement, vote of
shareholder, or disinterested directors or otherwise, both as to
action in an official capacity and as to action in any other
capacity while holding such office. The indemnification and
advancement of expenses provided by, or granted pursuant to, this
Section shall continue as to a person who has ceased to be an
officer, director, employee or agent in respect of matters
arising prior to such time, and shall inure to the benefit of the
heirs, executors and administrators of such person.
Stock of Other Corporations
38. The Board of Directors may authorize any director,
officer or other person on behalf of the Corporation to attend,
act and vote at meetings of the stockholders of any corporation
in which the Corporation shall hold stock, and to exercise
thereat any and all of the rights and powers incident to the
ownership of such stock and to execute waivers of notice of such
meetings and calls therefor.
Certificate of Stock
39. The certificates of stock of the Corporation shall be
numbered and shall be entered in the books of the Corporation as
they are issued. They shall exhibit the holder's name and number
of shares and may include his address. No fractional shares of
stock shall be issued. Certificates of stock shall be signed by
the Chairman, President or a Vice President and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the Corporation.
Where any certificate of stock is signed by a transfer agent or
transfer clerk, who may be but need not be an officer or employee
of the Corporation, and by a registrar, the signature of any such
Chairman, President, Vice President, Secretary, Assistant
Secretary, Treasurer, or Assistant Treasurer upon such
certificate who shall have ceased to be such before such
certificate of stock is issued, it may be issued by the
Corporation with the same effect as if such officer had not
ceased to be such at the date of its issue.
Transfer of Stock
40. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by
attorney, lawfully constituted in writing, and upon surrender of
the certificate therefor.
18<PAGE>
Fixing of Record Date
41. The Board of Directors is hereby authorized to fix a
time, not exceeding fifty (50) days preceding the date of any
meeting of stockholders or the date fixed for the payment of any
dividend or the making of any distribution, or for the delivery
of evidences of rights or evidences of interests arising out of
any change, conversion or exchange of capital stock, as a record
time for the determination of the stockholders entitled to notice
of and to vote at such meeting or entitled to receive any such
dividend, distribution, rights or interests as the case may be;
and all persons who are holders of record of capital stock at the
time so fixed and no others, shall be entitled to notice of and
to vote at such meeting, and only stockholders of record at such
time shall be entitled to receive any such notice, dividend,
distribution, rights or interests.
Registered Stockholders
42. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any
equitable or other claim to, or interest in, such share on the
part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by statutes of
the State of Delaware.
Lost Certificates
43. Any person claiming a certificate of stock to be lost
or destroyed shall make an affidavit or affirmation of that fact,
whereupon a new certificate may be issued of the same tenor and
for the same number of shares as the one alleged to be lost or
destroyed; provided, however, that the Board of Directors may
require, as a condition to the issuance of a new certificate, the
payment of the reasonable expenses of such issuance or the
furnishing of a bond of indemnity in such form and amount and
with such surety or sureties, or without surety, as the Board of
Directors shall determine, or both the payment of such expenses
and the furnishing of such bond, and may also require the
advertisement of such loss in such manner as the Board of
Directors may prescribe.
Inspection of Books
44. The Board of Directors may determine whether and to
what extent, and at what time the places and under what
conditions and regulations, the accounts and books of the
Corporation (other than the books required by statute to be open
to the inspection of stockholders), or any of them, shall be
open to the inspection of stockholders, and no stockholder shall
have any right to inspect any account or book or document of the
Corporation, except as such right may be conferred by statutes of
the State of Delaware or by the By-Laws or by resolution of the
Board of Directors or of the stockholders.
19<PAGE>
Checks, Notes, Bonds and Other Instruments
45. A. All checks or demands for money and notes of
the Corporation shall be signed by such person or persons (who
may but need not be an officer of officers of the Corporation) as
the Board of Directors may from time to time designate, either
directly or through such officers of the Corporation as shall, by
resolution of the Board of Directors, be authorized to designate
such person or persons. If authorized by the Board of Directors,
the signatures of such persons, or any of them, upon any checks
for the payment of money may be made by engraving, lithographing
or printing thereon a facsimile of such signatures, in lieu of
actual signatures, and such facsimile signatures so engraved,
lithographed or printed thereon shall have the same force and
effect as if such persons had actually signed the same.
B. All bonds, mortgages and other instruments
requiring a seal, when required in connection with matters which
arise in the ordinary course of business or when authorized by
the Board of Directors, shall be executed on behalf of the
Corporation by the Chairman or the President or a Vice President,
and the seal of the Corporation shall be thereupon affixed by the
Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, who shall, when required, attest the
ensealing and execution of said instrument. If authorized by the
Board of Directors, a facsimile of the seal may be employed and
such facsimile of the seal may be engraved, lithographed or
printed and shall have the same force and effect as an impressed
seal. If authorized by the Board of Directors, the signatures of
the Chairman or the President or a Vice President and the
Secretary or an Assistant Secretary or the Treasurer or
Assistant Treasurer upon any engraved, lithographed or printed
bonds, debentures, notes or other instruments may be made by
engraving, lithographing or printing thereon a facsimile of such
signatures, in lieu of actual signatures, and such facsimile
signatures so engraved, lithographed or printed thereon shall
have the same force and effect as if such officers had actually
signed the same. In case any officer who has signed, or whose
facsimile signature appears on, any such bonds, debentures, notes
or other instruments shall cease to be such officer before such
bonds, debentures, notes or other instruments shall have been
delivered by the Corporation, such bonds, debentures, notes or
other instruments may nevertheless be adopted by the Corporation
and be issued and delivered as though the person who signed the
same, or whose facsimile signature appears thereon, had not
ceased to be such officer of the Corporation.
20<PAGE>
Receipts for Securities
46. All receipts for stocks, bonds or other securities
received by the Corporation shall be signed by the Treasurer or
an Assistant Treasurer, or by such other person or persons as the
Board of Directors or Executive Committee shall designate.
Fiscal Year
47. The fiscal year shall begin the first day of January
in each year.
Dividends
48. (a) Dividends in the form of cash or securities,
upon the capital stock of the Corporation, to the extent
permitted by law may be declared by the Board of Directors at any
regular or special meeting.
(b) The Board of Directors shall have power to fix
and determine, and from time to time to vary, the amount to be
reserved as working capital; to determine whether any, and if
any, what part of any, surplus of the Corporation shall be
declared as dividends; to determine the date or dates for the
declaration and payment or distribution of dividends; and, before
payment of any dividend or the making of any distribution to set
aside out of the surplus of the Corporation such amount or
amounts as the Board of Directors from time to time, in its
absolute discretion, may think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for such other
purpose as it shall deem to be in the interest of the
Corporation.
Directors' Annual Statement
49. The Board of Directors shall present or cause to be
presented at each annual meeting of stockholders, and when called
for by vote of the stockholders at any special meeting of the
stockholders, a full and clear statement of the business and
condition of the Corporation.
Notices
50. (a) Whenever under the provisions of the By-Laws
notice is required to be given to any director, officer of
stockholder, it shall not be construed to require personal
notice, but, except as otherwise specifically provided, such
notice may be given in writing, by mail, by depositing a copy of
the same in a post office, letter box or mail chute, maintained
by the United States Postal Service, postage prepaid, addressed
to such stockholder, officer or director, at his address as the
same appears on the books of the Corporation.
(b) A stockholder, director or officer may waive in
writing any notice required to be given to him by law or by the
By-Laws.
21<PAGE>
Participation in Meetings by Telephone
51. At any meeting of the Board of Directors or the
Executive Committee or any other committee designated by the
Board of Directors, one or more directors may participate in such
meeting in lieu of attendance in person by means of the
conference telephone or similar communications equipment by means
of which all persons participating in the meeting will be able to
hear and speak.
Oath of Judges of Election
52. The judges of election appointed to act at any
meeting of the stockholders shall, before entering upon the
discharge of their duties, be sworn faithfully to execute the
duties of judge at such meeting with strict impartiality and
according to the best of their ability.
Amendments
53. The By-Laws may be altered or amended by the
affirmative vote of the holders of a majority of the capital
stock represented and entitled to vote at a meeting of the
stockholders duly held, provided that the notice of such meeting
shall have included notice of such proposed amendment. The By-
Laws may also be altered or amended by the affirmative vote of a
majority of the directors in office at a meeting of the Board of
Directors, the notice of which shall have included notice of the
proposed amendment. In the event of the adoption, amendment, or
repeal of any By-Law by the Board of Directors pursuant to this
Section, there shall be set forth in the notice of the next
meeting of stockholders for the election of directors the By-Law
so adopted, amended, or repealed together with a concise
statement of the changes made. By the affirmative vote of the
holders of a majority of the capital stock represented and
entitled to vote at such meeting, the By-Laws may, without
further notice, be altered or amended by amending or repealing
such action by the Board of Directors.
22<PAGE>
Exhibit B-94
________________________
EI POWER CHINA III, INC.
By-Laws
________________________<PAGE>
EI POWER CHINA III, INC.
BY-LAWS
Offices
1. The principal office of EI Power China III, Inc. (the
"Corporation") shall be in Parsippany, New Jersey. The
Corporation may also have offices at such other places as the
Board of Directors may from time to time designate or the
business of the Corporation may require.
Seal
2. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization, and the
words "Corporate Seal" and "Delaware". If authorized by the
Board of Directors, the corporate seal may be affixed to any
certificates of stock, bonds, debentures, notes or other
engraved, lithographed or printed instruments, by engraving,
lithographing or printing thereon such seal or a facsimile
thereof, and such seal or facsimile thereof so engraved,
lithographed or printed thereon shall have the same force and
effect, for all purposes, as if such corporate seal had been
affixed thereto by indentation.
Stockholders' Meetings
3. All meetings of stockholders shall be held at the
principal office of the Corporation or at such other place as
shall be stated in the notice of the meeting. Such meetings
shall be presided over by the chief executive officer of the
Corporation, or, in his absence, by such other officer as shall
have been designated for the purpose by the Board of Directors,
except when by statute the election of a presiding officer is
required.
4. Annual meetings of stockholders shall be held during
the month of May in each year on such day and at such time as
shall be determined by the Board of Directors and specified in
the notice of the meeting. At the annual meeting, the
stockholders entitled to vote shall elect by ballot a Board of
Directors and transact such other business as may properly be
brought before the meeting. Prior to any meeting of stockholders
at which an election of directors is to be held, the Board of
Directors shall appoint one judge of election to serve at such
meeting. If there be a failure to appoint a judge or if such
judge be absent or refuse to act or if his office becomes vacant,
the stockholders present at the meeting, by a per capita vote,
shall choose temporary judges of the number required. No
director or officer of the Corporation shall be eligible to
appointment or election as a judge.
2<PAGE>
5. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the
shares of stock of the Corporation issued and outstanding and
entitled to vote, present in person or by proxy, shall be
requisite for, and shall constitute a quorum at, any meeting of
the stockholders. If, however, the holders of a majority of such
shares of stock shall not be present or represented by proxy at
any such meeting, the stockholders entitled to vote thereat,
present in person or by proxy, shall have power, by vote of the
holders of a majority of the shares of capital stock present or
represented at the meeting, to adjourn the meeting from time to
time without notice other than announcement at the meeting, until
the holders of the amount of stock requisite to constitute a
quorum, as aforesaid, shall be present in person or by proxy. At
any adjourned meeting at which such quorum shall be present, in
person or by proxy, any business may be transacted which might
have been transacted at the meeting as originally noticed.
6. At each meeting of stockholders each holder of record
of shares of capital stock then entitled to vote shall be
entitled to vote in person, or by proxy appointed by instrument
executed in writing by such stockholders or by his duly
authorized attorney; but no proxy shall be valid after the
expiration of eleven months from the date of its execution unless
the stockholder executing it shall have specified therein the
length of time it is to continue in force, which shall be for
some specified period. At all elections of directors each holder
of record of shares of capital stock then entitled to vote, shall
be entitled to as many votes as shall equal the number of votes
which (except for such provision) he would be entitled to cast
for the election of directors with respect to his shares of stock
multiplied by the number of directors to be elected and he may
cast all such votes for a single director or may distribute them
among the number to be voted for, or any two or more of them, as
he may see fit. Except as otherwise provided by law or by the
Certificate of Incorporation, each holder of record of shares of
capital stock entitled to vote at any meeting of stockholders
shall be entitled to one vote for every share of capital stock
standing in his name on the books of the Corporation. Shares of
capital stock of the Corporation belonging to the Corporation or
to a corporation controlled by the Corporation through stock
ownership or through majority representation on the board of
directors thereof, shall not be voted. All elections shall be
determined by a plurality vote, and, except as otherwise provided
by law or by the Certificate of Incorporation all other matters
shall be determined by a vote of the holders of a majority of the
shares of the capital stock present or represented at a meeting
and voting on such questions.
7. A complete list of the stockholders entitled to vote
at any meeting of stockholders, arranged in alphabetical order,
with the residence of each, and the number of shares held by
each, shall be prepared by the Secretary and filed in the
principal office of the Corporation at least fifteen days before
the meeting, and shall be open to the examination of any
3<PAGE>
stockholder at all times prior to such meeting, during the usual
hours for business, and shall be available at the time and place
of such meeting and open to the examination of any stockholder.
8. Special meetings of the stockholders for any purpose
or purposes, unless otherwise prescribed by law, may be called by
the Chairman or by the President, and shall be called by the
chief executive officer or Secretary at the request in writing of
any three members of the Board of Directors, or at the request in
writing of holders of record of ten percent of the shares of
capital stock of the Corporation issued and outstanding.
Business transacted at all special meetings of the stockholders
shall be confined to the purposes stated in the call.
9. (a) Notice of every meeting of stockholders,
setting forth the time and the place and briefly the purpose or
purposes thereof, shall be mailed, not less than ten nor more
than fifty days prior to such meeting, to each stockholder of
record (at his address appearing on the stock books of the
Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be
mailed to some other address, in which case it shall be mailed to
the address designated in such request) as of a date fixed by the
Board of Directors pursuant to Section 41 of the By-Laws. Except
as otherwise provided by law, the Certificate of Incorporation or
the By-Laws, items of business, in addition to those specified in
the notice of meeting, may be transacted at the annual meeting.
(b) Whenever by any provision of law, the vote of
stockholders at a meeting thereof is required or permitted to be
taken in connection with any corporate action, the meeting and
vote of stockholders may be dispensed with, if all the stock-
holders who would have been entitled to vote upon the action if
such meeting were held, shall consent in writing to such
corporate action being taken, and all such consents shall be
filed with the Secretary of the Corporation. However, this
section shall not be construed to alter or modify any provision
of law or of the Certificate of Incorporation under which the
written consent of the holders of less than all outstanding
shares is sufficient for corporate action.
Directors
10. The business and affairs of the Corporation shall be
managed by its Board of Directors, which shall consist of not
less than one nor more than nine directors as shall be fixed from
time to time by a resolution adopted by a majority of the entire
Board of Directors; provided, however, that no decrease in the
number of directors constituting the entire Board of Directors
shall shorten the term of any incumbent director. Each director
shall be at least twenty-one years of age. Directors need not be
stockholders of the Corporation. Directors shall be elected at
the annual meeting of stockholders, or, if any such election
shall not be held, at a stockholders' meeting called and held in
accordance with the provisions of the General Corporation Law of
4<PAGE>
the State of Delaware. Each director shall serve until the next
annual meeting of stockholders and thereafter until his successor
shall have been elected and shall qualify.
11. In addition to the powers and authority by the By-
Laws expressly conferred upon it, the Board of Directors may
exercise all such powers of the Corporation and do all such
lawful acts and things as are not by law or by the Certificate of
Incorporation, or by the By-Laws directed or required to be
exercised or done by the stockholders.
12. Unless otherwise required by law, in the absence of
fraud no contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation
and any corporation, partnership, association or other
organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for such reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors which authorize the contract or
transaction, or solely because his votes are counted for such
purpose if:
(a) The material facts as to his interest and as to
the contract or transaction are disclosed or are
known to the Board of Directors, and the Board in
good faith authorizes the contract or transaction by
a vote sufficient for such purposes without counting
the vote of the interested director or directors; or
(b) The material facts as to his interest and as to
the contract or transaction are disclosed or known to
the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved
or ratified by the Board of Directors or the stock-
holders.
No director or officer shall be liable to account to
the Corporation for any profit realized by him from or through
any such contract or transaction of the Corporation by reason of
his interest as aforesaid in such contract or transaction if such
contract or transaction shall be authorized, approved or ratified
as aforesaid.
No contract or other transaction between the
Corporation and any of its affiliates shall in any case be void
or voidable or otherwise affected because of the fact that
directors or officers of the Corporation are directors or
officers of such affiliate, nor shall any such director or
officer, because of such relation, be deemed interested in such
5<PAGE>
contract or other transaction under any of the provisions of this
Section 12, nor shall any such director be liable to account
because of such relation. For the purposes of this Section 12,
the term "affiliate" shall mean any corporation which is an
"affiliate" of the Corporation within the meaning of the Public
Utility Holding Company Act of 1935, as said Act shall at the
time be in effect.
Nothing herein shall create liability in any of the
events described in this Section 12 or prevent the authorization,
ratification or approval, in any other manner provided by law, of
any contract or transaction described in this Section 12.
Meetings of the Board of Directors
13. The first meeting of the Board of Directors, for the
purpose of organization, the election of officers, and the
transaction of any other business which may come before the
meeting, shall be held on call of the Chairman within one week
after the annual meeting of stockholders. If the Chairman shall
fail to call such meeting, it may be called by the President or
by any director. Notice of such meeting shall be given in the
manner prescribed for Special Meetings of the Board of Directors.
14. Regular meetings of the Board of Directors may be
held without notice except for the purpose of taking action on
matters as to which notice is in the By-Laws required to be
given, at such time and place as shall from time to time be
designated by the Board, but in any event at intervals of not
more than three months. Special meetings of the Board of
Directors may be called by the Chairman or by the President or in
the absence or disability of the Chairman and the President, by a
Vice President, or by any two directors, and may be held at the
time and place designated in the call and notice of the meeting.
15. Except as otherwise provided by the By-Laws, any item
or business may be transacted at any meeting of the Board of
Directors, whether or not such item of business shall have been
specified in the notice of meeting. Where notice of any meeting
of the Board of Directors is required to be given by the By-Laws,
the Secretary or other officer performing his duties shall give
notice either personally or by telephone or telegraph at least
twenty-four hours before the meeting, or by mail at least three
days before the meeting. Meetings may be held at any time and
place without notice if all the directors are present or if those
not present waive notice in writing either before or after the
meeting.
16. At all meetings of the Board of Directors a majority
of the directors in office shall be requisite for, and shall
constitute, a quorum for the transaction of business, and the act
of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors,
6<PAGE>
except as may be otherwise specifically provided by law or by the
Certificate of Incorporation, as amended, or by the By-Laws.
17. Any regular or special meeting may be adjourned to
any time or place by a majority of the directors present at the
meeting, whether or not a quorum shall be present at such
meeting, and no notice of the adjourned meeting shall be required
other than announcement at the meeting.
Committees
18. The Board of Directors may, by the vote of a majority
of the directors in office, create an Executive Committee,
consisting of two or more members, of whom one shall be the chief
executive officer of the Corporation. The other members of the
Executive Committee shall be designated by the Board of Directors
from their number, shall hold office for such period as the Board
of Directors shall determine and may be removed at any time by
the Board of Directors. When a member of the Executive
Committee ceases to be a director, he shall cease to be a member
of the Executive Committee. The Executive Committee shall have
all the powers specifically granted to it by the By-Laws and,
between meetings of the Board of Directors, may also exercise all
the powers of the Board of Directors except such powers as the
Board of Directors may exercise by virtue of Section 11 of the
By-Laws. The Executive Committee shall have no power to revoke
any action taken by the Board of Directors, and shall be subject
to any restriction imposed by law, by the By-Laws, or by the
Board of Directors.
19. The Executive Committee shall cause to be kept
regular minutes of its proceedings, which may be transcribed in
the regular minute book of the Corporation, and all such
proceedings shall be reported to the Board of Directors at its
next succeeding meeting, and the action of the Executive
Committee shall be subject to revision or alteration by the Board
of Directors, provided that no rights which, in the absence of
such revision of alteration, third persons would have had shall
be affected by such revision or alteration. A majority of the
Executive Committee shall constitute a quorum at any meeting.
The Board of Directors may by vote of a majority of the total
number of directors provided for in Section 10 of the By-Laws
fill any vacancies in the Executive Committee. The Executive
Committee shall designate one of its number as Chairman of the
Executive Committee and may, from time to time, prescribe rules
and regulations for the calling and conduct of meetings of the
Committee, and other matters relating to its procedure and the
exercise of its powers.
20. From time to time the Board of Directors may appoint
any other committee or committees for any purpose or purposes,
which committee or committees shall have such powers and such
tenure of office as shall be specified in the resolution of
appointment. The chief executive officer of the Corporation
shall be a member ex officio of all committees of the Board.
7<PAGE>
Compensation and Reimbursement of Directors
and Members of the Executive Committee
21. Directors, other than salaried officers of the
Corporation or its affiliates, shall receive compensation and
benefits for their services as directors, at such rate or under
such conditions as shall be fixed from time to time by the Board,
and all directors shall be reimbursed for their reasonable
expenses, if any, of attendance at each regular or special
meeting of the Board of Directors.
22. Directors, other than salaried officers of the
Corporation or its affiliates, who are members of any committee
of the Board, shall receive compensation for their services as
such members as shall be fixed from time to time by the Board,
and shall be reimbursed for their reasonable expenses, if any, in
attending meetings of the Executive Committee or such other
Committees of the Board and of otherwise performing their duties
as members of such Committees.
Officers
23. The officers of the Corporation shall be chosen by a
vote of a majority of the directors in office and shall be a
President, one or more Vice Presidents, a Treasurer, a Secretary,
and a Comptroller, and may include a Chairman, one or more
Assistant Secretaries, one or more Assistant Treasurers, and one
or more Assistant Comptrollers. If a Chairman shall be chosen,
the Board of Directors shall designate either the Chairman or the
President as chief executive officer of the Corporation. If a
Chairman shall not be chosen, the President shall be the chief
executive officer of the Corporation. The Chairman and a
President who is designated chief executive officer of the
corporation shall be chosen from among the directors. A
President who is not chief executive officer of the Corporation
and none of the other officers need be a director. Neither the
Comptroller nor any Assistant Comptroller may occupy any other
office. With the above exceptions, any two offices may be
occupied and the duties thereof may be performed by one person,
but no officer shall execute, acknowledge or verify any
instrument in more than one capacity.
24. The salary and other compensation of the chief
executive officer of the Corporation shall be determined from
time to time by the Board of Directors. The salaries and other
compensation of all other officers of the Corporation shall be
determined from time to time by the chief executive officer,
subject to the concurrence of the Chairman.
25. The salary or other compensation of all employees
other than officers of the Corporation shall be fixed by the
chief executive officer of the Corporation or by such other
officer as shall be designated for that purpose by the Board of
Directors.
8<PAGE>
26. The Board of Directors may appoint such officers and
such representatives or agents as shall be deemed necessary, who
shall hold office for such terms, exercise such powers, and
perform such duties as shall be determined from time to time by
the Board of Directors.
27. The officers of the Corporation shall hold office
until the first meeting of the Board of Directors after the next
succeeding annual meeting of stockholders and until their
respective successors are chosen and qualify. Any officer
elected pursuant to Section 23 of the By-Laws may be removed at
any time, with or without cause, by the vote of a majority of the
directors in office. Any other officer and any representative,
employee or agent of the Corporation may be removed at any time,
with or without cause, by action of the Board of Directors, by
the Executive Committee, or the chief executive officer of the
Corporation, or such other officer as shall have been designated
for that purpose by the chief executive officer of the
Corporation.
The Chairman
28. (a) If a Chairman shall be chosen by the Board of
Directors, he shall preside at all meetings of the Board at which
he shall be present.
(b) If a Chairman shall be chosen by the Board of
Directors and if he shall be designated by the Board as chief
executive officer of the Corporation:
(i)he shall have supervision, direction and control
of the conduct of the business of the Corporation,
subject, however, to the control of the Board of
Directors and the Executive Committee, if there be
one;
(ii)he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the Cor-
poration, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporations;
(iii)he may, unless otherwise directed by the Board
of Directors pursuant to Section 38 of the By-Laws,
attend in person or by substitute or proxy
appointed by him and act and vote on behalf of the
Corporation at all meetings of stockholders of any
corporation in which the Corporation holds stock
and grant any consent, waiver, or power of attorney
in respect of such stock;
9<PAGE>
(iv)he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v)he shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
(c) If a Chairman shall be chosen by the Board of
Directors and if he shall not be designated by the Board as chief
executive officer of the Corporation.
(i)he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the Cor-
poration and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(ii)he shall have such other powers and perform
such other duties as may be prescribed from time to
time by law, by the By-Laws, or by the Board of
Directors.
The President
29. (a) If a Chairman shall not be chosen by the Board
of Directors, the President shall preside at all meetings of the
Board at which he shall be present.
(b) If the President shall be designated by the
Board of Directors as chief executive officer of the Corporation.
(i)he shall have supervision, direction and control
of the conduct of the business of the Corporation,
subject, however, to the control of the Board of
Directors and the Executive Committee if there be
one;
(ii)he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the Cor-
poration, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements, or
other instruments of any nature pertaining to the
business of the Corporation;
10<PAGE>
(iii)he may, unless otherwise directed by the Board
of Directors pursuant to Section 38 of the By-Laws,
attend in person or by substitute or proxy
appointed by him and act and vote on behalf of the
Corporation at all meetings of the stockholders of
any corporation in which the Corporation holds
stock and grant any consent, waiver, or power of
attorney in respect of such stock;
(iv)he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v)he shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
(c) If the Chairman shall be designated by the
Board of Directors as chief executive officer of the Corporation,
the President,
(i)shall be the chief operating officer of the
Corporation;
(ii)shall have supervision, direction and control
of the conduct of the business of the Corporation,
in the absence or disability of the Chairman,
subject, however, to the control of the Board of
Directors and the Executive Committee, if there be
one;
(iii)may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(iv)at the request or in the absence or disability
of the Chairman, may, unless otherwise directed by
the Board of Directors pursuant to Section 38 of
the By-Laws, attend in person or by substitute or
proxy appointed by him and act and vote on behalf
of the Corporation at all meetings of the
stockholders of any corporation in which the
Corporation holds stock and grant any consent,
waiver or power of attorney in respect of such
stock;
11<PAGE>
(v)at the request or in the absence or disability
of the Chairman, whenever in his opinion it may be
necessary or appropriate, shall prescribe the
duties of officers and employees of the Corporation
whose duties are not otherwise defined; and
(vi)shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
Vice President
30. (a) The Vice President shall, in the absence or
disability of the President, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 29(c)(ii) of the
By-Laws, have supervision, direction and control of the conduct
of the business of the Corporation, subject, however, to the
control of the Directors and the Executive Committee, if there be
one.
(b) He may sign in the name of and on behalf of the
Corporation any and all contracts, agreements or other
instruments pertaining to matters which arise in the ordinary
course of business of the Corporation, and when authorized by the
Board of Directors or the Executive Committee, if there be one,
except in cases where the signing thereof shall be expressly
delegated by the Board of Directors or the Executive Committee to
some other officer or agent of the Corporation.
(c) He may, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 29(c)(ii) of the
By-Laws, at the request or in the absence or disability of the
President or in case of the failure of the President to appoint a
substitute or proxy as provided in Subsections 29(b)(iii) and
29(c)(iv) of the By-Laws, unless otherwise directed by the Board
of Directors pursuant to Section 38 of the By-Laws, attend in
person or by substitute or proxy appointed by him and act and
vote on behalf of the Corporation at all meetings of the
stockholders of any corporation in which the Corporation holds
stock and grant any consent, waiver or power of attorney in
respect of such stock.
(d) He shall have such other powers and perform
such other duties as may be prescribed from time to time by law,
by the By-Laws, or by the Board of Directors.
(e) If there be more than one Vice President, the
Board of Directors may designate one or more of such Vice
Presidents as an Executive Vice President or a Senior Vice
President. The Board of Directors may assign to such Vice
Presidents their respective duties and may, if the President has
been designated chief executive officer of the Corporation or if
12<PAGE>
the President is acting pursuant to the provisions of Subsection
29(c)(ii) of the By-Laws, designate the order in which the
respective Vice Presidents shall have supervision, direction and
control of the business of the Corporation in the absence or
disability of the President.
The Secretary
31. (a) The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and
record all votes and the minutes of all proceedings in books to
be kept for that purpose; and he shall perform like duties for
the Executive Committee and any other committees created by the
Board of Directors.
(b) He shall give, or cause to be given, notice of
all meetings of the stockholders, the Board of Directors, or the
Executive Committee of which notice is required to be given by
law or by the By-Laws.
(c) He shall have such other powers and perform
such other duties as may be prescribed from time to time by law,
by the By-Laws, or the Board of Directors.
(d) Any records kept by the Secretary shall be the
property of the Corporation and shall be restored to the Corpora-
tion in case of his death, resignation, retirement or removal
from office.
(e) He shall be the custodian of the seal of the
Corporation and, pursuant to Section 45 of the By-Laws and in
other instances where the execution of documents on behalf of the
Corporation is authorized by the By-Laws or by the Board of
Directors, may affix the seal to all instruments requiring it and
attest the ensealing and the execution of such instruments.
(f) He shall have control of the stock ledger,
stock certificate book and all books containing minutes of any
meeting of the stockholders, Board of Directors, or Executive
Committee or other committee created by the Board of Directors,
and of all formal records and documents relating to the corporate
affairs of the Corporation.
(g) Any Assistant Secretary or Assistant Secretar-
ies shall assist the Secretary in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors.
The Treasurer
32. (a) The Treasurer shall be responsible for the
safekeeping of the corporate funds and securities of the Corpora-
tion, and shall maintain and keep in his custody full and
accurate accounts of receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and
13<PAGE>
other funds of the Corporation in the name and to the credit of
the Corporation, in such depositories as may be designated by the
Board of Directors.
(b) He shall disburse the funds of the Corporation
in such manner as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements.
(c) Pursuant to Section 45 of the By-Laws, he may,
when authorized by the Board of Directors, affix the seal to all
instruments requiring it and shall attest the ensealing and
execution of said instruments.
(d) He shall exhibit at all reasonable times his
accounts and records to any director of the Corporation upon
application during business hours at the office of the
Corporation where such accounts and records are kept.
(e) He shall render an account of all his
transactions as Treasurer at all regular meetings of the Board of
Directors, or whenever the Board may require it, and at such
other times as may be requested by the Board or by any director
of the Corporation.
(f) If required by the Board of Directors, he shall
give the Corporation a bond, the premium on which shall be paid
by the Corporation, in such form and amount and with such surety
or sureties as shall be satisfactory to the Board, for the
faithful performance of the duties of his office, and for the
restoration to the Corporation in case of his death, resignation,
retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
(g) He shall perform all duties generally incident
to the office of Treasurer, and shall have other powers and
duties as from time to time may be prescribed by law, by the By-
Laws, or by the Board of Directors.
(h) Any Assistant Treasurer or Assistant Treasurers
shall assist the Treasurer in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors. If
required by the Board of Directors, any Assistant Treasurer shall
give the Corporation a bond, the premium on which shall be paid
by the Corporation, similar to that which may be required to be
given by the Treasurer.
Comptroller
33. (a) The Comptroller of the Corporation shall be the
principal accounting officer of the Corporation and shall be
accountable and report directly to the Board of Directors. If
required by the Board of Directors, the Comptroller shall give
the Corporation a bond, the premium on which shall be paid by the
14<PAGE>
Corporation in such form and amount and with such surety or
sureties as shall be satisfactory to the Board, for the faithful
performance of the duties of his office.
(b) He shall keep or cause to be kept full and
complete books of account of all operations of the Corporation
and of its assets and liabilities.
(c) He shall have custody of all accounting records
of the Corporation other than the record of receipts and
disbursements and those relating to the deposit or custody of
money or securities of the Corporation, which shall be in the
custody of the Treasurer.
(d) He shall exhibit at all reasonable times his
books of account and records to any director of the Corporation
upon application during business hours at the office of the
Corporation where such books of account and records are kept.
(e) He shall render reports of the operations and
business and of the condition of the finances of the Corporation
at regular meetings of the Board of Directors, and at such other
times as he may be requested by the Board or any director of the
Corporation, and shall render a full financial report at the
annual meeting of the stockholders, if called upon to do so.
(f) He shall receive and keep in his custody an
original copy of each written contract made by or on behalf of
the Corporation.
(g) He shall receive periodic reports from the
Treasurer of the Corporation of all receipts and disbursements,
and shall see that correct vouchers are taken for all
disbursements for any purpose.
(h) He shall perform all duties generally incident
to the office of Comptroller, and shall have such other powers
and duties as from time to time may be prescribed by law, by the
By-Laws, or by the Board of Directors.
(i) Any Assistant Comptroller or Assistant
Comptrollers shall assist the Comptroller in the performance of
his duties, shall exercise his powers and duties at his request
or in his absence or disability and shall exercise such other
powers and duties as may be conferred or required by the Board of
Directors. If required by the Board of Directors, any Assistant
Comptroller shall give the Corporation a bond, the premium on
which shall be paid by the Corporation, similar to that which may
be required to be given by the Comptroller.
Vacancies
34. If the office of any director becomes vacant by
reason of death, resignation, retirement, disqualification, or
otherwise, the remaining directors, by the vote of a majority of
those then in office at a meeting, the notice of which shall have
15<PAGE>
specified the filling of such vacancy as one of its purposes may
choose a successor, who shall hold office for the unexpired term
in respect of which such vacancy occurs. If the office of any
officer of the Corporation shall become vacant for any reason,
the Board of Directors, at a meeting, the notice of which shall
have specified the filling of such vacancy as one of its
purposes, may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.
Pending action by the Board of Directors at such meeting, the
Board of Directors or the Executive Committee may choose a
successor temporarily to serve as an officer of the Corporation.
Resignations
35. Any officer or any director of the Corporation may
resign at any time, such resignation to be made in writing and
transmitted to the Secretary. Such resignation shall take effect
from the time of its acceptance, unless some time be fixed in the
resignation, and then from that time. Nothing herein shall be
deemed to relieve any officer from liability for breach of any
contract of employment resulting from any such resignation.
Duties of Officers May be Delegated
36. In case of the absence or disability of any officer
of the Corporation, or for any other reason the Board of
Directors may deem sufficient, the Board, by vote of a majority
of the total number of directors provided for in Section 10 of
the By-Laws may, notwithstanding any provisions of the By-Laws,
delegate or assign, for the time being, the powers or duties, or
any of them, of such officer to any other officer or to any
director.
Indemnification of Directors, Officers and Employees
37. (a) A director shall not be personally liable for
monetary damages as such for any action taken, or any failure to
take any action, unless the director has breached or failed to
perform the duties of his office under the General Corporation
Law of the State of Delaware, and the breach or failure to
perform constitutes self-dealing, willful misconduct or
recklessness. The provisions of this subsection (a) shall not
apply to the responsibility or liability of a director pursuant
to any criminal statute, or the liability of a director for the
payment of taxes pursuant to local, state or federal law.
(b) The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, whether
formal or informal, and whether brought by or in the right of the
Corporation or otherwise, by reason of the fact that he was a
director, officer or employee of the Corporation (and may
indemnify any person who was an agent of the Corporation), or a
person serving at the request of the Corporation as a director,
officer, partner, fiduciary or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other
16<PAGE>
enterprise, to the fullest extent permitted by law, including
without limitation indemnification against expenses (including
attorneys' fees and disbursements), damages, punitive damages,
judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection
with such proceeding unless the act or failure to act giving rise
to the claim for indemnification is finally determined by a court
to have constituted willful misconduct or recklessness.
(c) The Corporation shall pay the expenses
(including attorneys' fees and disbursements) actually and
reasonably incurred in defending a civil or criminal action, suit
or proceeding on behalf of any person entitled to indemnification
under subsection (b) in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such
person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation, and
may pay such expenses in advance on behalf of any agent on
receipt of a similar undertaking. The financial ability of such
person to make such repayment shall not be a prerequisite to the
making of an advance.
(d) For purposes of this Section: (i) the
Corporation shall be deemed to have requested an officer,
director, employee or agent to serve as fiduciary with respect to
an employee benefit plan where the performance by such person of
duties to the Corporation also imposes duties on, or otherwise
involves services by, such person of duties to the Corporation
also imposes duties on, or otherwise involves services by, such
person as a fiduciary with respect to the plan; (ii) excise taxes
assessed with respect to any transaction with an employee benefit
plan shall be deemed "fines"; and (iii) action taken or omitted
by such person with respect to any employee benefit plan in the
performance of duties for a purpose reasonably believed to be in
the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the
best interests of the Corporation.
(e) To further effect, satisfy or secure the
indemnification obligations provided herein or otherwise, the
Corporation may maintain insurance, obtain a letter of credit,
act as self-insurer, create a reserve, trust, escrow, cash
collateral or other fund or account, enter into indemnification
agreements, pledge or grant a security interest in any assets or
properties of the Corporation, or use any other mechanism or
arrangement whatsoever in such amounts, at such costs, and upon
such other terms and conditions as the Board of Directors shall
deem appropriate.
(f) All rights of indemnification under this
Section shall be deemed a contract between the Corporation and
the person entitled to indemnification under this Section
pursuant to which the Corporation and each such person intend to
be legally bound. Any repeal, amendment or modification hereof
17<PAGE>
shall be prospective only and shall not limit, but may expand,
any rights or obligations in respect of any proceeding whether
commenced prior to or after such change to the extent such
proceeding pertains to actions or failures to act occurring prior
to such change.
(g) The indemnification, as authorized by this
Section, shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any statute, agreement, vote of
shareholder, or disinterested directors or otherwise, both as to
action in an official capacity and as to action in any other
capacity while holding such office. The indemnification and
advancement of expenses provided by, or granted pursuant to, this
Section shall continue as to a person who has ceased to be an
officer, director, employee or agent in respect of matters
arising prior to such time, and shall inure to the benefit of the
heirs, executors and administrators of such person.
Stock of Other Corporations
38. The Board of Directors may authorize any director,
officer or other person on behalf of the Corporation to attend,
act and vote at meetings of the stockholders of any corporation
in which the Corporation shall hold stock, and to exercise
thereat any and all of the rights and powers incident to the
ownership of such stock and to execute waivers of notice of such
meetings and calls therefor.
Certificate of Stock
39. The certificates of stock of the Corporation shall be
numbered and shall be entered in the books of the Corporation as
they are issued. They shall exhibit the holder's name and number
of shares and may include his address. No fractional shares of
stock shall be issued. Certificates of stock shall be signed by
the Chairman, President or a Vice President and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the Corporation.
Where any certificate of stock is signed by a transfer agent or
transfer clerk, who may be but need not be an officer or employee
of the Corporation, and by a registrar, the signature of any such
Chairman, President, Vice President, Secretary, Assistant
Secretary, Treasurer, or Assistant Treasurer upon such
certificate who shall have ceased to be such before such
certificate of stock is issued, it may be issued by the
Corporation with the same effect as if such officer had not
ceased to be such at the date of its issue.
Transfer of Stock
40. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by
attorney, lawfully constituted in writing, and upon surrender of
the certificate therefor.
18<PAGE>
Fixing of Record Date
41. The Board of Directors is hereby authorized to fix a
time, not exceeding fifty (50) days preceding the date of any
meeting of stockholders or the date fixed for the payment of any
dividend or the making of any distribution, or for the delivery
of evidences of rights or evidences of interests arising out of
any change, conversion or exchange of capital stock, as a record
time for the determination of the stockholders entitled to notice
of and to vote at such meeting or entitled to receive any such
dividend, distribution, rights or interests as the case may be;
and all persons who are holders of record of capital stock at the
time so fixed and no others, shall be entitled to notice of and
to vote at such meeting, and only stockholders of record at such
time shall be entitled to receive any such notice, dividend,
distribution, rights or interests.
Registered Stockholders
42. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any
equitable or other claim to, or interest in, such share on the
part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by statutes of
the State of Delaware.
Lost Certificates
43. Any person claiming a certificate of stock to be lost
or destroyed shall make an affidavit or affirmation of that fact,
whereupon a new certificate may be issued of the same tenor and
for the same number of shares as the one alleged to be lost or
destroyed; provided, however, that the Board of Directors may
require, as a condition to the issuance of a new certificate, the
payment of the reasonable expenses of such issuance or the
furnishing of a bond of indemnity in such form and amount and
with such surety or sureties, or without surety, as the Board of
Directors shall determine, or both the payment of such expenses
and the furnishing of such bond, and may also require the
advertisement of such loss in such manner as the Board of
Directors may prescribe.
Inspection of Books
44. The Board of Directors may determine whether and to
what extent, and at what time the places and under what
conditions and regulations, the accounts and books of the
Corporation (other than the books required by statute to be open
to the inspection of stockholders), or any of them, shall be
open to the inspection of stockholders, and no stockholder shall
have any right to inspect any account or book or document of the
Corporation, except as such right may be conferred by statutes of
the State of Delaware or by the By-Laws or by resolution of the
Board of Directors or of the stockholders.
19<PAGE>
Checks, Notes, Bonds and Other Instruments
45. A. All checks or demands for money and notes of
the Corporation shall be signed by such person or persons (who
may but need not be an officer of officers of the Corporation) as
the Board of Directors may from time to time designate, either
directly or through such officers of the Corporation as shall, by
resolution of the Board of Directors, be authorized to designate
such person or persons. If authorized by the Board of Directors,
the signatures of such persons, or any of them, upon any checks
for the payment of money may be made by engraving, lithographing
or printing thereon a facsimile of such signatures, in lieu of
actual signatures, and such facsimile signatures so engraved,
lithographed or printed thereon shall have the same force and
effect as if such persons had actually signed the same.
B. All bonds, mortgages and other instruments
requiring a seal, when required in connection with matters which
arise in the ordinary course of business or when authorized by
the Board of Directors, shall be executed on behalf of the
Corporation by the Chairman or the President or a Vice President,
and the seal of the Corporation shall be thereupon affixed by the
Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, who shall, when required, attest the
ensealing and execution of said instrument. If authorized by the
Board of Directors, a facsimile of the seal may be employed and
such facsimile of the seal may be engraved, lithographed or
printed and shall have the same force and effect as an impressed
seal. If authorized by the Board of Directors, the signatures of
the Chairman or the President or a Vice President and the
Secretary or an Assistant Secretary or the Treasurer or
Assistant Treasurer upon any engraved, lithographed or printed
bonds, debentures, notes or other instruments may be made by
engraving, lithographing or printing thereon a facsimile of such
signatures, in lieu of actual signatures, and such facsimile
signatures so engraved, lithographed or printed thereon shall
have the same force and effect as if such officers had actually
signed the same. In case any officer who has signed, or whose
facsimile signature appears on, any such bonds, debentures, notes
or other instruments shall cease to be such officer before such
bonds, debentures, notes or other instruments shall have been
delivered by the Corporation, such bonds, debentures, notes or
other instruments may nevertheless be adopted by the Corporation
and be issued and delivered as though the person who signed the
same, or whose facsimile signature appears thereon, had not
ceased to be such officer of the Corporation.
20<PAGE>
Receipts for Securities
46. All receipts for stocks, bonds or other securities
received by the Corporation shall be signed by the Treasurer or
an Assistant Treasurer, or by such other person or persons as the
Board of Directors or Executive Committee shall designate.
Fiscal Year
47. The fiscal year shall begin the first day of January
in each year.
Dividends
48. (a) Dividends in the form of cash or securities,
upon the capital stock of the Corporation, to the extent
permitted by law may be declared by the Board of Directors at any
regular or special meeting.
(b) The Board of Directors shall have power to fix
and determine, and from time to time to vary, the amount to be
reserved as working capital; to determine whether any, and if
any, what part of any, surplus of the Corporation shall be
declared as dividends; to determine the date or dates for the
declaration and payment or distribution of dividends; and, before
payment of any dividend or the making of any distribution to set
aside out of the surplus of the Corporation such amount or
amounts as the Board of Directors from time to time, in its
absolute discretion, may think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for such other
purpose as it shall deem to be in the interest of the
Corporation.
Directors' Annual Statement
49. The Board of Directors shall present or cause to be
presented at each annual meeting of stockholders, and when called
for by vote of the stockholders at any special meeting of the
stockholders, a full and clear statement of the business and
condition of the Corporation.
Notices
50. (a) Whenever under the provisions of the By-Laws
notice is required to be given to any director, officer of
stockholder, it shall not be construed to require personal
notice, but, except as otherwise specifically provided, such
notice may be given in writing, by mail, by depositing a copy of
the same in a post office, letter box or mail chute, maintained
by the United States Postal Service, postage prepaid, addressed
to such stockholder, officer or director, at his address as the
same appears on the books of the Corporation.
(b) A stockholder, director or officer may waive in
writing any notice required to be given to him by law or by the
By-Laws.
21<PAGE>
Participation in Meetings by Telephone
51. At any meeting of the Board of Directors or the
Executive Committee or any other committee designated by the
Board of Directors, one or more directors may participate in such
meeting in lieu of attendance in person by means of the
conference telephone or similar communications equipment by means
of which all persons participating in the meeting will be able to
hear and speak.
Oath of Judges of Election
52. The judges of election appointed to act at any
meeting of the stockholders shall, before entering upon the
discharge of their duties, be sworn faithfully to execute the
duties of judge at such meeting with strict impartiality and
according to the best of their ability.
Amendments
53. The By-Laws may be altered or amended by the
affirmative vote of the holders of a majority of the capital
stock represented and entitled to vote at a meeting of the
stockholders duly held, provided that the notice of such meeting
shall have included notice of such proposed amendment. The By-
Laws may also be altered or amended by the affirmative vote of a
majority of the directors in office at a meeting of the Board of
Directors, the notice of which shall have included notice of the
proposed amendment. In the event of the adoption, amendment, or
repeal of any By-Law by the Board of Directors pursuant to this
Section, there shall be set forth in the notice of the next
meeting of stockholders for the election of directors the By-Law
so adopted, amended, or repealed together with a concise
statement of the changes made. By the affirmative vote of the
holders of a majority of the capital stock represented and
entitled to vote at such meeting, the By-Laws may, without
further notice, be altered or amended by amending or repealing
such action by the Board of Directors.
22<PAGE>
Exhibit C-19
Executed in 35 Counterparts of which
this is Counterpart No.
MORTGAGE
JERSEY CENTRAL POWER & LIGHT COMPANY
to
IBJ SCHRODER BANK & TRUST COMPANY,
Successor Trustee
FIFTIETH SUPPLEMENTAL INDENTURE
Dated as of August 1, 1994
This instrument prepared by:
/s/ Richard S. Cohen
Richard S. Cohen, Esq. <PAGE>
TABLE OF CONTENTS
Page
PARTIES 1
RECITALS 1
GRANT 4
EXECPTED PROPERTY 5
GENERAL SUBJECT CLAUSES 5
ARTICLE I.
CONCERNING THE TRUSTEE
SECTION 1.01. Acceptance by Trustee of Property in Trust 5
SECTION 1.02. Recital by Company 5
ARTICLE II.
MISCELLANEOUS
SECTION 2.01. Meaning of Certain Terms 6
SECTION 2.02. Original Indenture and Supplemental
Indentures Ratified and Confirmed 6
SECTION 2.03. Execution in Counterparts 6
TESTIMONIUM 6
SIGNATURES AND SEALS 6
ACKNOWLEDGMENTS 8
CERTIFICATE OF RESIDENCE 12
SCHEDULE A CONTAINING DESCRIPTIONS OF CERTAIN REAL
PROPERTY MORTGAGED 13
<PAGE>
MORTGAGE
FIFTIETH SUPPLEMENTAL INDENTURE, dated as of the 1st day
of August, 1994, made and entered into by and between JERSEY
CENTRAL POWER & LIGHT COMPANY, a corporation organized and
existing under the laws of the State of New Jersey (hereinafter
called the "Company"), party of the first part, and IBJ SCHRODER
BANK & TRUST COMPANY, a banking corporation of the State of New
York, with its principal corporate trust office at One State
Street, New York, New York, 10004, as Successor Trustee under the
Original Indenture hereinafter mentioned (the Successor Trustee
being hereinafter sometimes called "Trustee"), party of the
second part.
WHEREAS, the Company has heretofore executed and
delivered to City Bank Farmers Trust Company an Indenture dated
as of March 1, 1946 (hereinafter called the "Original
Indenture"), to secure the principal of and the interest and
premium (if any) on all bonds at any time issued and outstanding
thereunder, to declare the terms and conditions upon which bonds
are to be issued thereunder and to subject to the lien thereof
certain property therein described; and
WHEREAS, IBJ Schroder Bank & Trust Company is now acting
as Successor Trustee under the Original Indenture and the
indentures supplemental thereto hereinafter enumerated; and
WHEREAS, the Original Indenture has heretofore been
supplemented by a First Supplemental Indenture dated as of
December 1, 1948, a Second Supplemental Indenture dated as of
April 1, 1953, a Third Supplemental Indenture dated as of June 1,
1954, a Fourth Supplemental Indenture dated as of May 1, 1955, a
Fifth Supplemental Indenture dated as of August 1, 1956, a Sixth
Supplemental Indenture dated as of July 1, 1957, a Seventh
Supplemental Indenture dated as of July 1, 1959, an Eighth
Supplemental Indenture dated as of June 1, 1960, a Ninth
Supplemental Indenture dated as of November 1, 1962, a Tenth
Supplemental Indenture dated as of October 1, 1963, an Eleventh
Supplemental Indenture dated as of October 1, 1964, a Twelfth
Supplemental Indenture dated as of November 1, 1965, a Thirteenth
Supplemental Indenture dated as of August 1, 1966, a Fourteenth
Supplemental Indenture dated as of September 1, 1967, a Fifteenth
Supplemental Indenture dated as of October 1, 1968, a Sixteenth
Supplemental Indenture dated as of October 1, 1969, a Seventeenth
Supplemental Indenture dated as of June 1, 1970, an Eighteenth
Supplemental Indenture dated as of December 1, 1970, a Nineteenth
Supplemental Indenture dated as of February 1, 1971, a Twentieth
Supplemental Indenture dated as of November 1, 1971, a
Twenty-first Supplemental Indenture dated as of August 1, 1972, a
Twenty-second Supplemental Indenture dated as of August 1, 1973,
a Twenty-third Supplemental Indenture dated as of October 1, <PAGE>
1973, a Twenty-fourth Supplemental Indenture dated as of December
1, 1973, a Twenty-fifth Supplemental Indenture dated as of
November 1, 1974, a Twenty-sixth Supplemental Indenture dated as
of March 1, 1975, a Twenty-seventh Supplemental Indenture dated
as of July 1, 1975, a Twenty-eighth Supplemental Indenture dated
as of October 1, 1975, a Twenty-ninth Supplemental Indenture
dated as of February 1, 1976, a Supplemental Indenture No. 29A
dated as of May 31, 1976, a Thirtieth Supplemental Indenture
dated as of June 1, 1976, a Thirty-first Supplemental Indenture
dated as of May 1, 1977, a Thirty-second Supplemental Indenture
dated as of January 20, 1978, a Thirty-third Supplemental
Indenture dated as of January 1, 1979, a Thirty-fourth
Supplemental Indenture dated as of June 1, 1979, a Thirty-fifth
Supplemental Indenture dated as of June 15, 1979, a Thirty-sixth
Supplemental Indenture dated as of October 1, 1979, a
Thirty-seventh Supplemental Indenture dated as of September 1,
1984, a Thirty-eighth Supplemental Indenture dated as of July 1,
1985, a Thirty-ninth Supplemental Indenture dated as of April 1,
1988, a Fortieth Supplemental Indenture dated as of June 14,
1988, a Forty-first Supplemental Indenture dated as of April 1,
1989, a Forty-second Supplemental Indenture dated as of July 1,
1989, a Forty-third Supplemental Indenture dated as of March 1,
1991, a Forty-fourth Supplemental Indenture dated as of March 1,
1992, a Forty-fifth Supplemental Indenture dated as of October 1,
1992, a Forty-sixth Supplemental Indenture dated as of April 1,
1993, a Forty-seventh Supplemental Indenture dated as of April
10, 1993, a Forty-eighth Supplemental Indenture dated as of April
15, 1993 and a Forty-ninth Supplemental Indenture dated as of
October 1, 1993 (hereinafter respectively called "First
Supplemental Indenture," "Second Supplemental Indenture," "Third
Supplemental Indenture," "Fourth Supplemental Indenture," "Fifth
Supplemental Indenture," "Sixth Supplemental Indenture," "Seventh
Supplemental Indenture," "Eighth Supplemental Indenture," "Ninth
Supplemental Indenture," "Tenth Supplemental Indenture,"
"Eleventh Supplemental Indenture," "Twelfth Supplemental
Indenture," "Thirteenth Supplemental Indenture," "Fourteenth
Supplemental Indenture," "Fifteenth Supplemental Indenture,"
"Sixteenth Supplemental Indenture," "Seventeenth Supplemental
Indenture," "Eighteenth Supplemental Indenture," "Nineteenth
Supplemental Indenture," "Twentieth Supplemental Indenture,"
"Twenty-first Supplemental Indenture," "Twenty-second
Supplemental Indenture," "Twenty-third Supplemental Indenture,"
"Twenty-fourth Supplemental Indenture," "Twenty-fifth
Supplemental Indenture," "Twenty-sixth Supplemental Indenture,"
"Twenty-seventh Supplemental Indenture," "Twenty-eighth
Supplemental Indenture," "Twenty-ninth Supplemental Indenture,"
"Supplemental Indenture No. 29A," "Thirtieth Supplemental
Indenture," "Thirty-first Supplemental Indenture," "Thirty-second
Supplemental Indenture," "Thirty-third Supplemental Indenture,"
"Thirty-fourth Supplemental Indenture," "Thirty-fifth
Supplemental Indenture," "Thirty-sixth Supplemental Indenture,"
"Thirty-seventh Supplemental Indenture," "Thirty-eighth
Supplemental Indenture," "Thirty-ninth Supplemental Indenture,"
"Fortieth Supplemental Indenture," "Forty-first Supplemental <PAGE>
Indenture," "Forty-second Supplemental Indenture," "Forty-third
Supplemental Indenture," "Forty-fourth Supplemental Indenture,"
"Forty-fifth Supplemental Indenture," "Forty-sixth Supplemental
Indenture," "Forty-seventh Supplemental Indenture," "Forty-eighth
Supplemental Indenture" and "Forty-ninth Supplemental Indenture",
collectively called "the Supplemental Indentures"), for the
purposes therein expressed; and
WHEREAS, the Original Indenture has been recorded in the
proper recording offices of the following counties in the State
of New Jersey and the Commonwealth of Pennsylvania in Books of
Mortgages at the pages respectively stated as follows:
NEW JERSEY
Mortgage
County Book Page
Burlington 360 1 &c
Camden 2423 37 &c
Essex I-103 155 &c
Hunterdon 439 284 &c
Mercer 732 280 &c
Middlesex 871 101 &c
Monmouth 1365 1 &c
Morris Z-16 1 &c
Ocean 385 33 &c
Passaic B-24 1 &c
Somerset 386 1 &c
Sussex 394 148 &c
Union 1474 1 &c
Warren 279 191 &c
PENNSYLVANIA
Armstrong 213 421 &c
Bucks 2133 151 &c
Dauphin N52 1 &c
Indiana 200 371 &c
Northampton 1159 1 &c
; and
WHEREAS, the Supplemental Indentures have been recorded
in the proper recording offices of the appropriate counties in
the State of New Jersey and the Commonwealth of Pennsylvania; and
WHEREAS, the Original Indenture authorizes the Company
and the Trustee to enter into supplemental indentures for the
purpose, among others, of conveying, transferring and assigning
to the Trustee, and subjecting to the lien thereof, additional
properties thereafter acquired by the Company; and<PAGE>
WHEREAS, the Original Indenture, as the same may be
amended or supplemented from time to time by indentures
supplemental thereto, is hereinafter referred to as "the
Indenture"; and
WHEREAS, the Company desires to subject specifically to
the lien of the Indenture certain property acquired by the
Company and more particularly described in Schedule A; and
WHEREAS, the Company, in the exercise of the powers and
authority conferred upon and reserved to it under the provisions
of the Original Indenture and pursuant to appropriate action of
its Board of Directors, has fully resolved and determined to
make, execute and deliver to the Trustee a Fiftieth Supplemental
Indenture in the form hereof for the purposes herein provided;
and
WHEREAS, the Company represents that all conditions and
requirements necessary to make this Fiftieth Supplemental
Indenture, in the form and upon the terms hereof, a valid,
binding and legal instrument, in accordance with its terms, and
for the purposes herein expressed, have been done, performed and
fulfilled, and the execution and delivery hereof, in the form and
upon the terms hereof, have been in all respects duly authorized.
NOW THEREFORE, THIS FIFTIETH SUPPLEMENTAL INDENTURE
WITNESSETH: That Jersey Central Power & Light Company, in
consideration of the premises, and the execution and delivery by
the Trustee of this Fiftieth Supplemental Indenture and for other
good and valuable considerations, receipt of which is hereby
acknowledged, has granted, bargained, sold, aliened, enfeoffed,
released, conveyed, mortgaged, assigned, transferred, pledged,
set over and confirmed, and by these presents does grant,
bargain, sell, alien, enfeoff, release, convey, mortgage, assign,
transfer, pledge, set over and confirm unto IBJ Schroder Bank &
Trust Company, as Successor Trustee as aforesaid, and to its
successors in the trust created by the Original Indenture and to
its and their successors and assigns forever, all the following
properties of the Company, that is to say:
FIRST
All property additions, as defined in and by Section 1.03
of the Original Indenture, acquired by the Company on or after
October 1, 1993, and prior to August 1, 1994, and now owned by
the Company.
SECOND
Also all property of the character and nature specified
in the "Second," "Third," "Fourth," "Fifth," and "Sixth"
subdivisions of the granting clauses of the Original Indenture.<PAGE>
THIRD
All those certain lots, tracts or parcels of real estate
and interest more particularly and specifically described in
Schedule A attached hereto and hereby made a part hereof.
EXPRESSLY EXCEPTING AND EXCLUDING, HOWEVER, from this
Fiftieth Supplemental Indenture and from the lien and operation
of the Indenture, all property which, prior to the date of this
Fiftieth Supplemental Indenture, shall have been released from
the lien of, or disposed of by the Company in accordance with the
provisions of the Indenture; and all the tracts or parcels of
land and premises and all property of every kind and type
excepted and excluded from, and not heretofore or hereby
expressly subjected to, the lien of the Original Indenture by the
terms thereof whether such property was owned by the Company at
the date thereof or has been acquired since that date.
SUBJECT, HOWEVER, except as otherwise expressly provided
in this Fiftieth Supplemental Indenture, to the exceptions,
reservations and matters recited in the Indenture, to the
reservations, exceptions, limitations and restrictions contained
in the several deeds, grants, franchises and contracts or other
instruments through which the Company acquired or claims title to
the aforesaid property; and subject also to existing leases, to
liens on easements or rights-of-way for transmission or
distribution line purposes, to taxes and assessments not in
default, to easements for alleys, streets, highways, rights-of-
way and railroads that may run across or encroach upon said
lands, to joint pole and similar agreements, to undetermined
liens and charges, if any, incidental to the construction and
other permissible encumbrances, as defined in the Original
Indenture, and subject also to the provisions of Section 13.03 of
the Original Indenture.
In trust, nevertheless, upon the terms and trusts set
forth in the Indenture.
AND THIS FIFTIETH SUPPLEMENTAL INDENTURE FURTHER
WITNESSETH: That the Company, for the considerations aforesaid,
hereby covenants and agrees to and with the Trustee and its
successors in the trust under the Indenture, as follows:
ARTICLE I.
CONCERNING THE TRUSTEE.
SECTION 1.01. The Trustee hereby accepts the properties
hereby mortgaged and conveyed to it upon the trusts hereinbefore
referred to and agrees to perform the same upon the terms and
conditions set forth in the Indenture.<PAGE>
SECTION 1.02. The Trustee shall not be responsible in
any manner for or with respect to the validity or sufficiency of
this Fiftieth Supplemental Indenture, or the due execution hereof
by the Company, or for or with respect to the recitals and
statements contained herein, all of which recitals and statements
are made solely by the Company.
ARTICLE II.
MISCELLANEOUS.
SECTION 2.01. For all purposes hereof, except as the
context may otherwise require, (a) all terms contained herein
shall have the meanings given such terms in, and (b) all
references herein to sections of the Original Indenture shall be
deemed to be to such sections of, the Original Indenture as the
same heretofore has been or hereafter may be amended by an
indenture or indentures supplemental thereto.
SECTION 2.02. As amended and supplemented by the
aforesaid indentures supplemental thereto and by this Fiftieth
Supplemental Indenture, the Original Indenture is in all respects
ratified and confirmed and the Original Indenture and the
aforesaid indentures supplemental thereto and this Fiftieth
Supplemental Indenture shall be read, taken and construed as one
and the same instrument.
SECTION 2.03. This Fiftieth Supplemental Indenture shall
be simultaneously executed in several counterparts, and all such
counterparts executed and delivered, each as an original, shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, JERSEY CENTRAL POWER & LIGHT COMPANY,
party of the first part, has caused this instrument to be signed
in its name and behalf by its President or a Vice President, and
its corporate seal to be hereunto affixed and attested by its
Secretary or an Assistant Secretary and IBJ Schroder Bank & Trust
Company, as Successor Trustee as aforesaid, the party of the
second part, in token of its acceptance of the trust hereby
created, has caused this instrument to be signed in its name and
behalf by an Authorized Officer and its corporate seal to be
hereunto affixed and attested by an Authorized Officer, all as of
the day and year first above written.
JERSEY CENTRAL POWER & LIGHT COMPANY
By /s/ P. H. Preis
P. H. Preis
Vice President<PAGE>
ATTEST:
/s/ C. A. Marks
C. A. Marks
Assistant Secretary
Signed, sealed and delivered by
JERSEY CENTRAL POWER & LIGHT
COMPANY in the presence of:
/s/ Fred A. Gruber
/s/ Patricia A. Clancy <PAGE>
IBJ SCHRODER BANK & TRUST COMPANY
As Successor Trustee as aforesaid
By /s/ Nancy R. Besse
Nancy R. Besse
Vice President
ATTEST:
/s/ Thomas J. Bogert
Thomas J. Bogert
Assistant Secretary
Signed, sealed and delivered by
IBJ SCHRODER BANK & TRUST COMPANY
in the presence of:
/s/ Joane C. D'Amelio
/s/ Anthony Lieggi <PAGE>
STATE OF NEW JERSEY )
ss.:
COUNTY OF MORRIS )
BE IT REMEMBERED that on this 4th day of
August, 1994 before me, the subscriber, a notary public in and
for said County and State, personally appeared C. A. Marks, an
Assistant Secretary of JERSEY CENTRAL POWER & LIGHT COMPANY, the
corporation named in and which executed the foregoing instrument,
who, being by me duly sworn according to law, does depose and say
and make proof to my satisfaction that he resides at 6 Nancy
Terrace, Washington Township, New Jersey; that he is an Assistant
Secretary of JERSEY CENTRAL POWER & LIGHT COMPANY; that the seal
affixed to said instrument is the corporate seal of said
corporation, the same being well known to him; that it was so
affixed by the order of the Board of Directors of said
corporation; that P. H. Preis is a Vice President of said
corporation; that he saw said P. H. Preis as such Vice President
sign such instrument, and affix said seal thereto and deliver
said instrument and heard him declare that he signed, sealed and
delivered said instrument as the voluntary act and deed of said
corporation by its order and by order of its Board of Directors,
for the uses and purposes therein expressed; and that the said
C. A. Marks signed his name thereto at the same time as
subscribing witness, and that Jersey Central Power & Light
Company, the mortgagor, has received a true copy of said
instrument.
/s/ C. A. Marks
C. A. Marks
Assistant Secretary
Subscribed and sworn to
before me the day and
year aforesaid
/s/ Donna M. Balzarini
[NOTARIAL SEAL] Donna M. Balzarini
A Notary Public of New Jersey
My Commission Expires August 14, 1997
<PAGE>
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED that on this 4th day of
August, 1994 before me, the subscriber, a notary public in and
for said County and State, personally appeared Thomas J. Bogert,
an Assistant Secretary of IBJ SCHRODER BANK & TRUST COMPANY, the
corporation named in and which executed the foregoing instrument,
who, being by me duly sworn according to law, does depose and say
and make proof to my satisfaction that he resides at 25 Pinebrook
Drive, Neptune, New Jersey; that he is an Assistant Secretary of
IBJ SCHRODER BANK & TRUST COMPANY; that the seal affixed to said
instrument is the corporate seal of said corporation, the same
being well known to him; that it was so affixed by him pursuant
to authority granted by the Board of Directors of said
corporation; that Nancy R. Besse is a Vice President of said
corporation; that he saw said Nancy R. Besse as such Vice
President sign and deliver said instrument and heard her declare
that she signed and delivered said instrument as the voluntary
act and deed of said corporation pursuant to authority granted by
its Board of Directors, for the uses and purposes therein
expressed; and that the said Nancy R. Besse signed her name
thereto at the same time as subscribing witness.
/s/ Thomas J. Bogert
Thomas J. Bogert
Assistant Secretary
Subscribed and sworn to
before me the day and
year aforesaid
[NOTARIAL SEAL] /s/ Jane Shaheen
Jane Shaheen
Notary Public, State of New York
No. 24-4609846
Qualified in Kings County
My Commission Expires March 30, 1995<PAGE>
STATE OF NEW JERSEY )
ss.:
COUNTY OF MORRIS )
On this 4th day of August, 1994, before me came
P. H. Preis, to me known, who, being by me duly sworn, did say
that he resides at 23 Christopher Street, Rockaway, New Jersey;
that he is a Vice President of JERSEY CENTRAL POWER & LIGHT
COMPANY, one of the corporations described in and which executed
the above instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal;
that said seal was so affixed by order of the Board of Directors
of said corporation; and that he signed his name to said
instrument by like order.
[NOTARIAL SEAL]
/s/ Donna M. Balzarini
Donna M. Balzarini
A Notary Public of New Jersey
My Commission Expires August 14, 1997<PAGE>
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On this 4th day of August, 1994, before me came
Nancy R. Besse, to me known, who, being by me duly sworn, did say
that she resides at 375 South End Avenue, New York, New York;
that she is a Vice President of IBJ SCHRODER BANK & TRUST
COMPANY, one of the corporations described in and which executed
the above instrument; that she knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that said seal was so affixed by authority of the
Board of Directors of said corporation; and that she signed her
name to said instrument by like authority.
[NOTARIAL SEAL]
/s/ Jane Shaheen
Jane Shaheen
Notary Public, State of New York
No. 24-4609846
Qualified in Kings County
My Commission Expires March 30, 1995
<PAGE>
CERTIFICATE OF RESIDENCE
IBJ Schroder Bank & Trust Company, Successor Trustee within
named, hereby certifies that its precise residence is One State
Street, in the Borough of Manhattan, in the City of New York, in
the State of New York.
IBJ SCHRODER BANK & TRUST COMPANY
By /s/ Nancy R. Besse
Nancy R. Besse
Vice President<PAGE>
SCHEDULE A
COMMONWEALTH OF PENNSYLVANIA
MONTGOMERY COUNTY
PENNSYLVANIA-NEW JERSEY-MARYLAND INTERCONNECTION BUILDING:
An undivided 7.50% interest of the Company in and to the
following described real property:
All that certain parcel of land situate in the Township of
Lower Providence, County of Montgomery and State of Pennsylvania,
bounded and described in accordance with a map made for Valley
Forge Industrial Park, Inc. (now Valley Forge Corporate Center,
Inc.) by Yerkes Engineering Co. dated August 17, 1959, as
follows:
BEGINNING at a point, said point being 440 feet in a
Southwesterly direction along the title line of Jefferson Avenue
from the intersection of the title lines of Van Buren Avenue and
Jefferson Avenue, THENCE the following courses and distances:
South 42 degrees 00 minutes West along the title line of
Jefferson Avenue a distance of 390 feet to a point;
THENCE North 48 degrees 00 minutes West a distance of 470
feet to a point;
THENCE North 42 degrees 00 minutes East a distance of 390
feet to a point;
THENCE south 48 degrees 00 minutes East 470 feet to the first
mentioned point and place of beginning.
Subject to restrictions, covenants and easements of record.
Being the same undivided 7.50% interest in the above
described premises which was conveyed to the Company by
Philadelphia Electric Company, a Pennsylvania corporation, as
Agent for members of the Pennsylvania-New Jersey-Maryland
Interconnection, by deed dated July 17, 1992 and recorded in the
Montgomery County Recorder of Deeds Office on January 7, 1993 in
Book 5031, Page 583 &c.
Montgomery County Tax Parcel No. 43-00-06522-00-5. <PAGE>
Exhibit D-1
AGREEMENT OF GENERAL PUBLIC UTILITIES
CORPORATION AND ITS SUBSIDIARIES RELATED
TO CONSOLIDATED FEDERAL INCOME TAX RETURNS
WHEREAS, General Public Utilities Corporation ("GPU")
and its subsidiaries (GPU and its subsidiaries being herein
referred to as the "Companies") have, for many years, filed
consolidated federal income tax returns and have allocated the
tax liabilities thereunder in accordance with tax allocation
agreements, authorized from time to time by the Securities and
Exchange Commission ("SEC") under the Public Utility Holding
Company Act of 1935 ("Holding Company Act") by the entry of
orders permitting declarations relating to such returns and
agreements to become effective; and
WHEREAS, the SEC adopted in 1981 an amendment to its
Rule 45 under the Holding Company Act providing that a
declaration under Section 12(a) of the Holding Company Act would
not be required for the filing of a consolidated tax return by
the eligible associate companies in a registered holding company
system, or for the execution or performance of the agreement
referred to in such amended Rule 45 if such agreement provides
for the allocation of the liabilities and benefits arising from
such consolidated tax return in a manner not inconsistent with
the conditions specified in such amended Rule 45; and
WHEREAS, the Companies are entering into this Agreement
to conform their tax allocation agreement to rule 45 as so
amended by the SEC,
NOW, THEREFORE, the Companies hereby agree as follows:
1. The Companies will join annually in the filing of
consolidated federal income tax returns.
2. In accordance with (i) the tax allocation
agreement in effect immediately prior to the execution and
delivery of this Agreement and (ii) the authorization previously
received by the Companies from the SEC under the Holding Company
Act, the joinder in such returns for the year 1979 and thereafter
and for the allocation of the current tax liability and the
benefits of net operating loss carrybacks and carryforwards and
current investment tax credits and carrybacks and carryforwards
associated with such consolidated tax returns shall be in the
manner hereinafter set forth, namely:
(a) There will be allocated to each Company (other
than GPU) the tax benefits of its own net operating
losses;
1<PAGE>
Exhibit D-1
(b) A Company which does not have a net operating loss
of its own and which would have income tax liability
were it not for the net operating losses of its
affiliates will pay to the affiliates (other than GPU)
with net operating losses the tax reduction which it
receives as a result of the net operating losses of
such affiliates less its own investment tax credits
which it could utilize on a separate return basis;
(c) Beginning with the year 1979, the tax reductions
attributable to GPU expenses will be allocated each
year among GPU's subsidiaries in proportion to the
dollars of average common stock equity investment of
GPU in such subsidiaries during such year;
(d) The tax reductions attributable to GPU expenses
which each Company had in years prior to 1979 will not
be reallocated as a result of the anticipated 1979
consolidated net operating loss carryback; and
(e) Any consolidated minimum income tax arising from
preference items will be allocated among the Companies
in the ratio of their dollars of preference items
giving rise to such consolidated minimum tax.
3. The result of the proposed method of allocation is
that:
(a) No Company will pay more than its separate return
liability as if it had always filed separate returns;
(b) Each Company (other than GPU) will receive in
current cash payments from the other Companies the
benefit of its own net operating loss carrybacks to the
extent that the other Companies can utilize such net
operating loss carrybacks to offset the tax liability
they would otherwise have on a separate return basis
(after taking into account any investment tax credits
they could utilize on a separate return basis); and
(c) Each Company will pay that portion of the
consolidated minimum tax which its preference items
cause.
4. If, and to the extent that, the SEC shall, by
rule, regulation or order, authorize GPU to realize the tax
benefits of its own losses or costs by means of current or
carryback or carryforward provisions, the allocation of taxes
under this Agreement shall reflect such authorization. Thus, if
and to the extent, so authorized, GPU will receive in current
cash payments from the other Companies the benefit of its own
losses or costs to the extent that such losses or costs can be
2<PAGE>
Exhibit D-1
used to offset the tax liability the other Companies would
otherwise have on a separate return basis (after taking into
account any investment tax credits they could otherwise utilize
on a separate return basis).
5. This Agreement shall be subject to the obtaining
of any and all necessary authorizations or approvals of any
regulatory body having jurisdiction with respect thereto.
Moreover, if the SEC so directs within 60 days after the filing
of this Agreement with the SEC under the Holding Company Act,
such filing shall be deemed to be a declaration under Rule 45(a)
and this Agreement shall be conditioned upon the SEC's approval
thereof.
IN WITNESS WHEREOF, the Companies have executed this
Agreement this 26th day of May, 1983.
ATTEST JERSEY CENTRAL POWER & LIGHT COMPANY
BY: /s/ R. O. Brokaw BY: /s/ W. A. Verrochi
ATTEST METROPOLITAN EDISON COMPANY
BY: /s/ R. B. Heist BY: /s/ F. J. Smith
ATTEST YORK HAVEN POWER COMPANY
BY: /s/ W. A. Boquist BY: /s/ R. C. Richert
ATTEST PENNSYLVANIA ELECTRIC COMPANY
BY: /s/ J. W. Bonarrigo BY: /s/ J. R. Leva
ATTEST NINEVEH WATER COMPANY
BY: /s/ J. W. Bonarrigo BY: /s/ J. R. Leva
ATTEST GENERAL PUBLIC UTILITIES CORPORATION
BY: /s/ G. Wade BY: /s/ W. G. Kuhns
ATTEST GPU SERVICE CORPORATION
BY: /s/ G. Wade BY: /s/ W. G. Kuhns
ATTEST GPU NUCLEAR CORPORATION
BY: /s/ G. Wade BY: /s/ H. Dieckamp
3<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST Waverly Electric Light & Power
Company
By:/s/ M. A. Nalewako /s/ Don W. Myers
May 26, 1983
4<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST Saxton Nuclear Experimental
Corporation
By:/s/ M. A. Nalewako /s/ Don W. Myers
May 26, 1983
5<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST Energy Initiatives, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
December 19, 1984
6<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST Armstrong Energy Corporation
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
July 15, 1988
7<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST Hanover Energy Corporation
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
May 28, 1988
8<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST Camchino Energy Corporation
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
April 26, 1989
9<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST Elmwood Energy Corporation
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
April 13, 1987
10<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST Geddes Cogeneration
Corporation
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
March 27, 1989
11<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST EI Fuels Corporation
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
September 30, 1990
12<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST NCP Energy, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
June 13, 1994
13<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST NCP Lake Power, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
June 13, 1994
14<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST NCP Gem, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
June 13, 1994
15<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST Umatilla Groves, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
June 13, 1994
16<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST NCP Dade Power, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
June 13, 1994
17<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST NCP Pasco, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
June 13, 1994
18<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST NCP Ada Power, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
June 13, 1994
19<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST NCP Brooklyn Power, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
June 13, 1994
20<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST NCP Commerce Power, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
June 13, 1994
21<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST NCP Houston Power, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
June 13, 1994
22<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST NCP Perry, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
June 13, 1994
23<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST NCP New York, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
June 13, 1994
24<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST EI Selkirk, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
October 31, 1994
25<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST EI Power, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
March 15, 1994
26<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST Met-Ed Preferred Capital, Inc.
By:/s/ M. A. Nalewako /s/ T. G. Howson
May 6, 1994
27<PAGE>
Exhibit D-1
Amendment to Agreement of
General Public Utilities Corporation and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, General Public Utilities Corporation ("GPU")
and certain of its subsidiaries have entered into the Agreement
of General Public Utilities Corporation and its Subsidiaries
related to Consolidated Federal Income Tax Returns, dated May
26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST Penelec Preferred
Capital, Inc.
By:/s/ M. A. Nalewako /s/ T. G. Howson
May 9, 1994
28<PAGE>
Exhibit E-4
VENTURE DISCLOSURES
Licensing of Computer Programs
to Nonassociated Companies
Pursuant to the provisions contained in the Securities and Exchange
Commission (SEC) Order dated August 29, 1990 for SEC File No. 70-7675, neither
Jersey Central Power & Light Company, Metropolitan Edison Company nor
Pennsylvania Electric Company entered into any transactions nor recognized any
revenues during the calendar year 1994 for activity related to the licensing
of computer programs to nonassociated companies.
-1-
<PAGE>
Exhibit B-78
BYLAWS OF
TRIGEN POWER COMPANY
(A California Corporation)<PAGE>
BYLAWS
OF
TRIGEN POWER COMPANY
A California Corporation
Page
ARTICLE I OFFICES.................................... 1
Section 1. Principal Office........................... 1
Section 2. Other Offices.............................. 1
ARTICLE II MEETINGS OF SHAREHOLDERS................... 1
Section 1. Place of Meetings.......................... 1
Section 2. Annual Meeting............................. 1
Section 3. Special Meetings........................... 1
Section 4. Notice of Shareholders' Meetings........... 2
Section 5. Manner of Giving Notice; Affidavit of
Notice................................... 2
Section 6. Quorum..................................... 3
Section 7. Adjourned Meeting; Notice.................. 3
Section 8. Voting..................................... 4
Section 9. Waiver of Notice or Consent of Absent
Shareholders............................. 4
Section 10. Shareholder Action by Written Consent
Without a Meeting........................ 5
Section 11. Record Date for Shareholder Notice,
Voting and Consents...................... 6
Section 12. Proxies.................................... 6
Section 13. Inspectors of Election..................... 7
ARTICLE III. DIRECTORS.................................. 8
Section 1. Powers..................................... 8
Section 2. Number and Qualification of Directors...... 8
Section 3. Election and Term of Office................ 8
Section 4. Removal of Directors....................... 8
Section 5. Vacancies.................................. 8
Section 6. Place of Meetings and Meetings by
Telephone................................ 9
Section 7. Annual Meeting............................. 9
Section 8. Other Regular meetings..................... 10
Section 9. Special Meetings........................... 10
Section 10. Quorum..................................... 10
Section 11. Waiver of Notice........................... 10
Section 12. Adjournment................................ 11
Section 13 Notice of Adjournment...................... 11
Section 14 Action Without Meeting..................... 11
Section 15. Fees and Compensation...................... 11
(i)<PAGE>
ARTICLE IV. COMMITTEES................................. 11
Section 1. Committees of Directors.................... 11
Section 2. Meetings and Action of Committees with
Authority................................ 12
Section 3. Advisory Committees........................ 12
ARTICLE V. OFFICERS................................... 13
Section 1. Officers................................... 13
Section 2. Appointment of Officers.................... 13
Section 3. Subordinate Officers 13
Section 4. Removal and Resignation of Officers........ 13
Section 5. Vacancies in Offices....................... 14
Section 6. Chairman of the Board...................... 14
Section 7. President.................................. 14
Section 8. Vice Presidents............................ 14
Section 9. Secretary.................................. 15
Section 10. Chief Financial Officer.................... 15
ARTICLE VI. INDEMNIFICATION OF DIRECTORS OFFICERS,
EMPLOYEES AND OTHER AGENTS............... 15
Section 1. Extent; Definitions........................ 15
Section 2. Indemnification Agreements................. 16
Section 3. Liability Insurance........................ 16
Section 4. Advance of Expenses........................ 16
Section 5. Fiduciaries................................ 17
ARTICLE VII. RECORDS AND REPORTS........................ 17
Section 1. Maintenance and Inspection of Share
Register................................. 17
Section 2. Maintenance and Inspection of Bylaws....... 17
Section 3. Maintenance and Inspection of Other
Corporate Records........................ 18
Section 4. Inspection by Directors.................... 18
Section 5. Annual Report to Shareholders.............. 18
Section 6. Financial Statements....................... 18
Section 7. Annual Statements of General Information... 19
ARTICLE VIII. GENERAL CORPORATE MATTERS.................. 19
Section 1. Record Date for Purposes Other Than
Notice and Voting........................ 19
Section 2. Checks, Drafts, Evidences of Indebtedness.. 20
Section 3. Corporate Contracts and Instruments;
How Executed............................. 20
Section 4. Certificates for Shares.................... 20
Section 5. Lost Certificates.......................... 20
Section 6. Representation of Shares of Other
Corporations............................. 21
Section 7. Construction and Definitions............... 21
(ii)<PAGE>
ARTICLE IX. AMENDMENTS................................. 21
Section 1. Amendment by Shareholders.................. 21
Section 2. Amendment by Directors..................... 21
(iii)<PAGE>
BYLAWS
OF
TRIGEN POWER COMPANY
(A California Corporation)
ARTICLE I
OFFICES
Section 1. Principal Office. The board of directors
shall fix the location of the principal executive office of the
corporation at any place within or outside the State of
California. If the principal executive office is located outside
this state, and the corporation has one or more business offices
in this state, the board of directors shall likewise fix and
designate a principal business office in the State of California.
Section 2. Other Offices. The board of directors may
at any time establish branch of subordinate offices at any place
or places where the corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. Meetings of
shareholders shall be held at any place within or outside the
State of California designated by the board of directors. In the
absence of any such designation, shareholders' meetings shall be
held at the principal executive office of the corporation.
Section 2. Annual Meeting. The annual meeting of
shareholders shall be held each year on a date and at a time
designated by the board of directors. At each annual meeting
directors shall be elected, and any other proper business may be
transacted.
Section 3. Special Meetings. A special meeting of the
shareholders may be called at any time by the board of directors,
or by the chairman of the board, or by the president, or by one
or more shareholders holding shares in the aggregate entitled to
cast not less than ten percent (10%) of the votes at that
meeting.
If a special meeting is called by any person or persons
other than the board of directors, the request shall be in
writing, specifying the time of such meeting and the general
nature of the business proposed to be transacted, and shall be
delivered personally or sent by registered mail or by telegraphic<PAGE>
or other facsimile transmission to the chairman of the board, the
president, any vice president or the secretary of the
corporation. The officer receiving the request shall cause
notice to be normally given to the shareholders entitled to vote,
in accordance with the provisions of the Sections 4 and 5 of this
Article II, that a meeting will be held at the time requested by
the person or persons calling the meeting, not less than thirty-
five (35) nor more than sixty (60) days after the receipt of the
request. If the notice is not given within twenty (20) days
after receipt of the request, the person or persons requesting
the meeting may give the notice. Nothing contained in this
Section 3 shall be construed as limiting, fixing or affecting the
time when a meeting of shareholders called by action of the board
of directors may be held.
Section 4. Notice of Shareholders' Meetings. All
notices of meetings of shareholders shall be sent or otherwise
given in accordance with section 5 of this Article II not less
than ten (10) nor more than sixty (60) days before the date of
the meeting. The notice shall specify the place, date and hour
of the meeting and (a) in the case of a special meeting, the
general nature of the business to be transacted, or (b) in the
case of the annual meeting, those matters which the board of
directors, at the time of giving the notice, intends to present
for action by the shareholders. The notice of any meeting at
which directors are to be elected shall include the name of any
nominee or nominees whom, at the time of the notice, management
intends to present for election.
If action is proposed to be taken at any meeting for
approval of (a) a contract or transaction in which a director has
a direct or indirect financial interest, pursuant to Section 310
of the Corporations Code of California, (b) an amendment of the
articles of incorporation, pursuant to Section 902 of that Code,
(c) a reorganization of the corporation, pursuant to Section 1201
of that Code, (d) a voluntary dissolution of the corporation,
pursuant to Section 1900 of that Code, or (e) a distribution in
dissolution other than in accordance with the rights of
outstanding preferred shares, pursuant to Section 2007 of that
Code, the notice shall also state the general nature of that
proposal.
Section 5. Manner of Giving Notice; Affidavit of
Notice. Notice of any meeting of shareholders shall be given
either personally or by first-class mail or telegraphic or other
written communication, charges prepaid, addressed to the
shareholder at the address of that shareholder appearing on the
books of the corporation or given by the shareholder to the
corporation for the purpose of notice. If no such address
appears on the corporation's books or is given, notice shall be
deemed to have been given if sent to that shareholder by first-
class mail or telegraphic or other written communication to the
corporation's principal executive office, or if published at
2<PAGE>
least once in a newspaper of general circulation in the county
where that office is located. Notice shall be deemed to have
been given at the time when delivered personally or deposited in
the mail or sent by telegram or other means of written
communications.
If any notice addressed to a shareholder at the address
of that shareholder appearing on the books of the corporation is
returned to the corporation by the United States Postal Service
marked to indicate that the United States Postal Service is
unable to deliver the notice to the shareholder at that address,
all future notices or reports shall be deemed to have been duly
given without further mailing if these shall be available to the
shareholder on written demand of the shareholder at the principal
executive office of the corporation for a period of one year from
the date of the giving of the notice.
An affidavit of the mailing or other means of giving
any notice of any shareholders' meeting shall be executed by the
secretary, assistant secretary or any transfer agent of the
corporation giving the notice, and shall be filed and maintained
in the minute book of the corporation.
Section 6. Quorum. The presence in person or by proxy
of the holders of a majority of the shares entitled to vote at
any meeting of shareholders shall constitute a quorum for the
transaction of business. The shareholders present at a duly
called or held meeting at which a quorum is present may continue
to do business until adjournment, notwithstanding the withdrawal
of enough shareholders to leave less than a quorum, if any action
taken (other than adjournment) is approved by a least a majority
of the shares required to constitute a quorum.
Section 7. Adjourned Meeting; Notice. Any
shareholders' meeting, annual or special, whether or not a quorum
is present, may be adjourned from time to time by the vote of the
majority of the shares represented at that meeting, either in
person or by proxy, but in the absence of a quorum, no other
business may be transacted at that meeting, except as provided in
section 6 of this Article II.
When any meeting of shareholders, either annual or
special, is adjourned to another time or place, notice need not
be given of the adjourned meeting if the time and place are
announced at a meeting at which the adjournment is taken, unless
a new record date for the adjourned meeting is fixed, or unless
the adjournment is for more that forty-five (45) days from the
date set for the original meeting, in which case the board of
directors shall set a new record date. Notice of any such
adjourned meeting shall be given to each shareholder of record
entitled to vote at the adjourned meeting in accordance with the
provisions of Sections 4 and 5 of this Article II. At any
adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting.
3<PAGE>
Section 8. Voting. The shareholders entitled to vote
at any meeting of shareholders shall be determined in accordance
with the provisions of Section 11 of this Article II, subject to
the provisions of Sections 702 to 704, inclusive, of the
Corporations Code of California (relating to voting shares held
by a fiduciary, in the name of a corporation, or in joint
ownership). The shareholders' vote may be by voice vote or by
ballot; provided, however, that any election for directors must
be by ballot if demanded by any shareholder before the voting has
begun. On any matter other than elections of directors, any
shareholder may vote part of the shares in favor of the proposal
and refrain from voting the remaining shares or vote them against
the proposal, but, if the share-holder fails to specify the
number of shares which the share-holder is voting affirmatively,
it will be conclusively presumed that the shareholder's approving
vote is with respect to all shares that the shareholder if
entitled to vote. If a quorum is present, the affirmative vote
of the majority of shares represented at the meeting and entitled
to vote on any matter (other than the election of directors)
shall be the act of the shareholders, unless the vote of a
greater number of voting by classes is required by the California
General Corporation Law or by the articles of incorporation.
At a shareholders' meeting at which directors are to be
elected, no shareholder shall be entitled to cumulate votes
(i.e., cast for any one or more candidates a number of votes
greater than the number of the shareholder's shares) unless the
candidates' names have been placed in nomination prior to
commencement of the voting and a shareholder has given notice
prior to commencement of the voting of the shareholder's notice,
then every shareholder entitled to vote may cumulate votes for
candidates in nomination and give one candidate a number of votes
equal to the number of directors to be elected multiplied by the
number of votes to which that shareholder's intention to cumulate
votes. If any shareholder has given such notice, then every
shareholder entitled to vote may cumulate votes for candidates in
nomination and give one candidate a number of votes equal to the
number of directors to be elected multiplied by the number of
votes to which that shareholder's shares are entitled, or
distribute the shareholder's votes on the same principle among
any or all of the candidates, as the shareholder thinks fit. The
candidates receiving the highest number of votes, up to the
number of directors to be elected, shall be elected.
Section 9. Waiver of Notice of Consent by Absent
Shareholders. The transactions of any meeting of shareholders,
either annual or special, however called and noticed, and
wherever held, shall be as valid as though had at a meeting duly
held after regular call and notice, if a quorum be present either
in person or by proxy, and if, either before or after the
meeting, each person entitled to vote, who was not present in
person or by proxy, signs a written waiver of notice or a consent
to a holding of the meeting, or an approval of the minutes. The
4<PAGE>
waiver of notice of consent need not specify either the business
to be transacted or the purpose of any annual or special meeting
of shareholders, except that if action is taken or proposed to be
taken for approval of any of those matters specified in the
Section 4 of this Article II, the waiver of notice or consent
shall state the general nature of the proposal. All such
waivers, consents or approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
Attendance by a person at a meeting shall also
constitute a waiver of notice of that meeting, except when the
person objects, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully
called or convened, and except that attendance at a meeting is
not a waiver of any right to object to the consideration of
matters not included in the notice of the meeting if that
objection is expressly made at the meeting.
Section 10. Shareholder Action by Written Consent
Without a Meeting. Any action which may be taken at any annual
or special meeting of shareholders may be taken without a meeting
and without prior notice, if a consent in writing, setting forth
the action so taken, is signed by the holders of outstanding
shares having not less than the minimum number of votes that
would be necessary to authorize or take that action at a meeting
at which all shares entitled to vote on that action were present
and voted. In the case of election of directors, such a consent
shall be effective only if signed by the holders of all
outstanding shares entitled to vote for the election of
directors; provided, however, that a director may be elected at
any time to fill a vacancy on the board of directors that has not
been filled by the directors, by the written consent of the
holders of a majority of the outstanding shares entitled to vote
for the election of directors. All such consents shall be filed
with the secretary of the corporation and shall be maintained in
the corporate records. Any shareholder giving a written consent,
or the shareholder's proxy holders, or a transferee of the shares
or a personal representative of the shareholder of their
respective proxy holders, may revoke the consent by a writing
received by the secretary of the corporation before written
consents of the number of shares required to authorize the
proposed action have been filed with the secretary.
If the consents of all shareholders entitled to vote
have been solicited in writing, and if the unanimous written
consent of all such shareholders shall have been received, the
secretary shall give prompt notice of the corporate action
approved by the shareholders without a meeting. This notice
shall be given in the manner specified in Section 5 of this
Article II. In the case of approval of (a) contracts or
transactions in which a director has a direct or indirect
financial interest, pursuant to Section 310 of the Corporations
Code of California, (b) indemnification of agents of the
corporation, pursuant to Section 317 of that Code, (c) a
5<PAGE>
reorganization of the corporation, pursuant to Section 1201 of
that Code, and (d) a distribution in dissolution other than in
accordance with the rights of outstanding preferred shares,
pursuant to Section 2007 of that Code, the notice shall be action
authorized by that approval.
Section 11. Record Date for Shareholder Notice Voting
and Consents. For purposes of determining the shareholders
entitled to notice of any meeting or to vote or entitled to give
consent to corporate action without a meeting, the board of
directors may fix, in advance, a record date, which shall not be
more than sixty (60) days nor less than ten (10) days before the
date of any such meeting nor more than sixty (60) days before any
such action without a meeting, and in this event only
shareholders of record on the date so fixed in this event only
notice and to vote or to give consents, as the case may be,
notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided
in the California General Corporation Law.
If the board of directors does not so fix a record date:
(a) The record date for determining shareholders
entitled to notice of or to vote at a meeting of
shareholders shall be at the close of business on the
business day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the
business day next preceding the day on which the meeting is
held.
(b) The record date for determining shareholders
entitled to give consent to corporate action in writing
without a meeting, (i) when no prior action by the board has
been taken, shall be the day on which the first written
consent is give, or (ii) when prior action of the board has
been taken, shall be at the close of business on the day on
which the board adopts the resolution relating to that
action, or the sixtieth (60th) day before the date of such
other action, whichever is later.
Section 12. Proxies. Every person entitled to vote
for directors or on any other matter shall have the right to do
so either in person or by one or more agents authorized by a
written proxy signed by the person and filed with the secretary
of the corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual
signature, typewriting, telegraphic transmission or otherwise) by
the shareholder or the shareholder's attorney in fact. A validly
executed proxy which does not state that it is irrevocable shall
continue in full force and effect unless (a) revoked by the
person executing it, before its next exercise, by a writing
delivered to the corporation stating that the proxy is revoked,
6<PAGE>
or by a subsequent proxy executed by, or attendance at the
meeting and voting in person by, the person executing the proxy;
or (b) written notice of the death or incapacity of the maker of
that proxy is received by the corporation before the vote
pursuant to that proxy is counted; provided, however, that no
proxy shall be valid after the expiration of eleven (11) months
from the date of the proxy, unless otherwise provided in the
proxy. The revocability of a proxy that states on its face that
it is irrevocable shall be governed by the provisions of Sections
705(e) and 705(f) of the Corporations Code of California.
Section 13. Inspectors of Election. Before any
meeting of shareholders, the board of directors may appoint any
persons other than nominees for office to act as inspectors of
election at the meeting or its adjournment. If no inspectors of
election are so appointed, the chairman of the meeting may, and
on the request of any shareholder or a shareholder's proxy shall,
appoint inspectors of election at the meeting. The number of
inspectors shall be either one (1) or three (3). If inspectors
are appointed at a meeting on the request of one or more
shareholders or proxies, the holders of a majority of shares or
their proxies present at the meeting shall determine whether one
(1) or three (3) inspectors are to be appointed. If any person
appointed as inspectors are to be appointed. If any person
appointed as inspector fails to appear or fails or refuses to
act, the chairman of the meeting may, and upon the request of any
shareholder or a shareholder's proxy shall, appoint a person to
fill that vacancy.
The inspectors shall:
(a) Determine the number of shares outstanding and
the voting power of each, the shares represented at the meeting,
the existence of a quorum and the authenticity, validity and
effect of proxies;
(b) Receive votes, ballots or consents;
(c) Hear and determine all challenges and questions
in any way arising in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct
the election or vote with fairness to all shareholders.
7<PAGE>
ARTICLE III
DIRECTORS
Section 1. Powers. Subject to the provisions of the
California General Corporation Law and any limitations in the
articles of incorporation and these bylaws relating to action
required to be approved by the shareholders or by outstanding
shares, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under
the direction of the board of directors. The board may delegate
the day-to-day operation of the business to a management company
or other person provided that the business and affairs of the
corporation shall be managed and all corporate powers shall be
exercised under the ultimate direction of the board.
Section 2. Number and Qualification of Directors.
The authorized number of directors shall be one (1) until changed
by a duly adopted amendment to the articles of incorporation or
by an amendment to this bylaw adopted by the vote or written
consent of holders of majority of the outstanding shares entitled
to vote; provided, however, that an amendment reducing the number
of directors to a number less than five (5) cannot be adopted if
the notes cast against its adoption of a meeting, or the shares
not consenting in the case of action by written consent, are
equal to more than sixteen and two-thirds percent (16-2/3%) of
the outstanding shares entitled to vote. Directors need not be
share holders of the corporation.
Section 3. Election and Term of Office. Directors
shall be elected at each annual meeting of the shareholders to
hold office until the next annual meeting. Each director,
including a director elected to fill a vacancy, shall hold office
until the expiration of the term for which elected and until a
successor has been elected and qualified.
Section 4. Removal of Directors. Any director may be
removed from office with or without cause, at a meeting called
expressly for that purpose, by the vote or written consent of the
holders of a majority of the outstanding shares of the
corporation. No director shall be removed if the number of votes
cast against his removal would be sufficient to elect him at an
annual meeting of the shareholders.
Section 5. Vacancies. Vacancies in the board of
directors may be filled by a majority of the remaining directors,
though less than a quorum, or by a sole remaining director,
except that a vacancy created by the removal of a director by the
vote or written consent of the shareholders or by court order may
be filled only by the vote of a majority of the shares entitled
to vote represented at a duly held meeting at which a quorum is
present, or by the written consent of holders of a majority of
the outstanding shares entitled to vote. Each director so
elected shall hold office until the next annual meeting of the
shareholders and until a successor has been elected.
8<PAGE>
A vacancy or vacancies in the board of directors shall
be deemed to exist in the event of the death, resignation or
removal of any director, or if the board of directors by
resolution declares vacant the office of a director who has been
declared of unsound mind by an order of court or convicted of a
felony, or if the authorized number of directors is increased, or
if the shareholders fail, at any meeting of shareholders at which
any director or directors are elected, to elect the number of
directors to be voted for at that meeting.
The shareholders may elect a director or directors at
any time to fill any vacancy or vacancies not filled by the
directors, but any such election by written consent shall require
the consent of a majority of the outstanding shares entitled to
vote.
Any director may resign effective on giving written
notice to the chairman of the board, the president, the secretary
or the board of directors, unless the notice specifies a later
time for that resignation to become effective. If the
resignation of a director is effective at a future time, the
board of directors may elect a successor to take office when the
resignation becomes effective.
No reduction of the authorized number of directors
shall have the effect of removing any director before that
director's term of office expires. Except as provided in
Sections 302, 303 and 304 of the California General Corporation
Laws, a director may not be removed prior to the expiration of
such director's term of office.
Section 6. Place of Meetings and Meetings by
Telephone. Regular meetings of the board of directors may be
held at any place within or outside the State of California that
has been designated in the notice of the meeting, or, if not
stated in the notice or there is no notice, designated in these
bylaws or from time to time by resolution of the board. In the
absence of such a designation, regular meetings shall be held at
the principal executive office of the corporation. Special
meetings of the board shall be held at any place within or
outside the State of California that has been designated in the
notice of the meeting or, if not stated in the notice or there is
no notice, at the principal executive office of the corporation.
Any meeting, regular or special, may be held by conference
telephone or similar communication equipment, so long as all
directors participating in the meeting can hear one another, and
all such directors shall be deemed to be present in person at the
meeting.
Section 7. Annual Meeting. Immediately following
each annual meeting of shareholders, the board of directors shall
hold a regular meeting for the purpose of organization, any
desired election of officers and the transaction of other
business. Notice of this meeting shall not be required.
9<PAGE>
Section 8. Other Regular Meetings. Other regular
meetings of the board of directors shall be held without call at
such time as shall from time to time be fixed by the board of
directors. Such regular meetings may be held without notice.
Section 9. Special Meetings. Special meetings of the
board of directors for any purpose or purposes may be called at
any time by the chairman of the board or the president or any
vice president or the secretary or any two directors.
Notice of the time and place of special meetings shall
be delivered personally or by telephone to each director or sent
by first-class mail or telegram, charges prepaid, addressed to
each director at that director's address as it is shown on the
records of the corporation. In case the notice is mailed, it
shall be deposited in the United States mail at least four (4)
days before the time of the holding of the meeting. In case the
notice is delivered personally, or by telephone or to the
telegraph company at least forty-eight (48) hours before the time
of the holding of the meeting. Any oral notice given personally
or by telephone may be communicated either to the director or to
a person at the office of the director who the person giving the
notice has reason to believe will promptly communicate it to the
director. The notice need not specify the purpose of the meeting
nor the place if the meeting is to be held at the principal
executive office of the corporation.
Section 10. Quorum. A majority of the authorized
number of directors shall constitute a quorum for the transaction
of business, except to adjourn as provided in Section 11 of the
Article III. Every act or decision done or made by a majority of
the directors present at a meeting duly held at which a quorum is
present shall be regarded as the act of the board of directors,
subject to the provisions of the board of directors, subject to
the provisions of Section 310 of the Corporations Code of
California (as to approval of contracts or transactions in which
a director has a direct or indirect material financial interest),
Section 311 of that Code (as to appointment of committees), and
Section 317(e) of that Code (as to indemnification of directors).
A meeting at which a quorum if initially present may continue to
transact business notwithstanding the withdrawal of directors, if
any action taken is approved by at least a majority of the
required quorum for that meeting.
Section 11. Waiver of Notice. The transactions of any
meeting of the board of directors, however called and noticed or
wherever held, shall be as valid as though had at a meeting duly
held after regular call and notice if a quorum is present and if,
either before or after the meeting, each of the directors not
present signs a written waiver of notice, a consent to holding
the meeting or an approval of the minutes. The waiver of notice
or consent need not specify the purpose of the meeting. All such
waivers, consents and approvals shall be filed with the corporate
records or made a part of the minutes or the meeting. Notice of
10<PAGE>
a meeting need not be or have been given to any director who
attends the meeting without protesting before or at its
commencement, the lack of notice to that director.
Section 12. Adjournment. A majority of the directors
present, whether or not constituting a quorum, may adjourn any
meeting to another time and place.
Section 13. Notice of Adjournment. Notice of the time
and place of holding an adjourned meeting need not be given,
unless the meeting is adjourned for more than twenty-four (24)
hours, in which case notice of the time and place shall be given
before the time of the adjourned meeting, in the manner specified
in Section 8 of this Article III, to the directors who were not
present at the time of the adjournment.
Section 14. Action Without Meeting. Any action
required or permitted to be taken by the board of directors may
be taken without a meeting, if all members of the board shall
individually or collectively consent in writing to that action.
Such action by written consent shall have the same force and
effect as a unanimous vote of the board of directors. Such
written consent or consents shall be filed with the minutes of
the proceedings of the board.
Section 15. Fees and Compensation. Directors and
members of committees may receive such compensation, if any, for
their services, and such reimbursements of expenses, as may be
fixed or determined by resolution of the board of directors.
This Section 15 shall not be construed to preclude any director
from serving the corporation in any other capacity as an officer,
agent, employee or otherwise, and receiving compensation for
those services.
ARTICLE IV
COMMITTEES
Section 1. Committees of Directors. Committees are
of two kinds, those having legal authority to act for the
corporation and advisory committees. The board of directors may,
by resolution adopted by a majority of the authorized number of
directors, designate one or more committees having legal
authority to act for the corporation, each consisting of two or
more directors, to serve at the pleasure of the board. The board
may designate one or more directors as alternate members of any
such committee, who may replace any absent member at any meeting
of the committee. Any committee having legal authority to act
for the corporation, to the extent provided in the resolution of
the board, shall have all authority of the board, except with
respect to:
11<PAGE>
(a) The approval of any action which, under the
General Corporation Law of california, also requires
shareholders' approval or approval of the outstanding
shares;
(b) The filling of vacancies on the board of
directors or in any committee;
(c) The fixing of compensation of the directors for
serving on the board or on any committee;
(d) The amendment or repeal of bylaws or the adoption
of new bylaws:
(e) The amendment or repeal of any resolution of the
board of directors which by its express terms is not so
amendable or repealable;
(f) A distribution to the shareholders of the
corporation, except at a rate or in a periodic amount or
within a price range determined by the board of directors;
or
(g) The appointment of any other committees of the
board of directors or the members of these committees.
Section 2. Meetings and Action of Committees with
Authority. Meetings and action of committees having legal
authority to act for the corporation shall be governed by, and
held and taken in accordance with, the provisions of Article III
of these bylaws, Section 6 (place of meetings), Section 8
(regular meetings), Section 9 (special meetings and notice),
Section 10 (quorum), Section 11 (waiver of notice), Section 12
(adjournment), Section 13 (notice of adjournment), and Section 14
(action without meeting), with such changes in the context of
those bylaws as are necessary to substitute the committee and its
members for the board of directors and its members, except that
the time of regular meetings of committees may be determined
either by resolution of the board of directors or by resolution
of the committee; special meetings of committees may also be
called by resolution of the board of directors; and notice of
special meetings of committees shall also be given to all
alternate members, who shall have the right to attend all
meetings of the committee. The board of directors may adopt
rules for the government of any committee not inconsistent with
the provisions of these bylaws.
Section 3. Advisory Committees. Advisory Committees
may be appointed to consist of one or more members. Advisory
directors and nondirectors or nondirectors only, and also may
include nonvoting members and alternate members. Advisory
Committees have no legal authority to act for the corporation,
but shall report their findings and recommendations to the board
12<PAGE>
of directors. Members of Advisory Committees shall receive such
compensation as may be established by resolution of the board of
directors.
ARTICLE V
OFFICERS
Section 1. Officers. The officers of the corporation
shall be a president, a secretary, and a chief financial officer.
The corporation may also have, at the discretion of the board of
directors, a chairman of the board, one or more vice presidents,
one or more assistant secretaries, one or more assistant
treasurers, and such other officers as may be appointed in
accordance with the provisions of Section 3 of this Article V.
Any number of offices may be held by the same person.
Section 2. Appointment of Officers. The officers of
the corporation, except such officers as may be appointed in
accordance with the provisions of Section 3 or Section 5 of this
Article V, shall be appointed by the board of directors, and each
shall serve at the pleasure of the board, subject to the rights,
if any, of an officer under any contract of employment.
(a) Any officer appointed by the board of directors
may be removed from office at any time by the board of
directors, with or without cause or prior notice. Any
officer not appointed by the board of directors may be
removed from office at any time by the officer by whom
appointed or by the board of directors with or without cause
of prior notice.
(b) When authorized by the board of directors, any
officer may be appointed for a specified term under a
contract of employment. Notwithstanding that such officer
is appointed for a specified term or under the contract of
employments, any such officer may be removed from office at
any time pursuant to Subsection 2(a) of this Article V and
shall have no claim against the corporation on account of
such removal other than for such monetary compensation as
the officer may be entitled to under the terms of the
contract of employment.
Section 3. Subordinate Officers. The board of
directors may appoint, and may empower the president to appoint,
such other officers as the business of the corporation may
require, each of whom shall hold office for such period, have
such authority and perform such duties as are provided in the
bylaws or as the board of directors may from time to time
determine.
Section 4. Removal and Resignation of Officers.
Subject to the rights, if any, of an officer under any contract
of employment, any officer may be removed, either with or without
cause, by the board of directors, at any regular or special
13<PAGE>
meeting of the board, or, except in the case of an officer chosen
by the board of directors, by any officer upon whom such power of
removal may be conferred by the board of directors.
Any officer may resign at any time by giving written
notice to the corporation. Any resignation shall take effect at
the date of the receipt of that notice or at any later time
specified in that notice; and, unless otherwise specified in that
notice, the acceptance of the resignation shall not be necessary
to make it effective. Any resignation is without prejudice to
the rights, if any, of the corporation under any contract to
which the officer is a party.
Section 5. Vacancies in Offices. A vacancy in any
office because of death, resignation, removal, disqualification
or any other cause shall be filled in the manner prescribed in
these bylaws for regular appointments to that office.
Section 6. Chairman of the Board. The chairman of
the board, if such an office be elected, shall, if present,
preside at meetings of the board of directors and exercise and
perform such other powers and duties as may be assigned to him
from time to time by the board of directors or prescribed by the
bylaws. If there is no president, the chairman of the board
shall in addition be the chief executive officer of the
corporation and shall have the powers and duties prescribed in
Section 7 of this Article V.
Section 7. President. Subject to such supervisory
powers, if any, as may be given by the board of directors to the
chairman of the board, if there be such an officer, the president
shall be the chief executive officer of the corporation and
shall, subject to the control of the board of directors, have
general supervision, direction and control of the business and
the officers of the corporation. He shall preside at all
meetings of the shareholders and, in the absence of the chairman
of the board, or if there be none, at all meetings of the board
of directors. He shall have the general powers and duties of
management usually vested in the office of president of a
corporation, and shall have such other powers and duties as may
be prescribed by the board of directors or the bylaws.
Section 8. Vice Presidents. In the absence or
disability of the president, the vice presidents, if any, in
order of their rank as fixed by the board of directors or, if not
ranked, a vice president designated by the board of directors,
shall perform all the duties of the president, and when so acting
shall have all the powers of, and be subject to all the
restrictions upon, the president. The vice presidents shall have
such other powers and perform such other duties as from time to
time may be prescribed for them respectively by the board of
directors or the bylaws, and the president, or the chairman of
the board.
14<PAGE>
Section 9. Secretary. The secretary shall keep or
cause to be kept, at the principal executive office or such other
place as the board of directors may direct, a book of minutes of
all meetings and actions of directors, committees of directors,
and shareholders, with the time and place of holding, whether
regular or special, and, if special, how authorized, the notice
given, the names of those present at directors' meetings or
committee meetings, the number of shares present or represented
at shareholders' meetings, and a summary of the proceedings.
The secretary shall keep, or cause to be kept, at the
principal executive office or at the office of the corporation's
transfer agent or registrar, as determined by resolution of the
board of directors, a share register, or a duplicate share
register, showing the names of all shareholders and their
addresses, the number and classes of shares held by each, the
number and date of certificates issued for the same, and the
number and date of cancellation of every certificate surrendered
for cancellation.
The secretary shall give, or cause to be given, notice
of all meetings of the shareholders and of the board of directors
required by the bylaws or by law to be given, and he shall keep
the seal of the corporation if one be adopted, in safe custody,
and shall have such other powers and perform such other duties as
may be prescribed by the board of directors or by the bylaws.
Section 10. Chief Financial Officer. The chief
financial officer shall keep and maintain, or cause to be kept
and maintained, adequate and correct books and records of
accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, retained
earnings and shares. The books of account shall at all
reasonable times be open to inspection by any director.
The chief financial officer shall deposit all moneys
and other valuables in the name and to the credit of the
corporation with such depositaries as may be designated by the
board of directors. He shall disburse the funds of the
corporation as may be ordered by the board of directors, shall
render to the president and directors, whenever they request it,
an account of all of his transactions as chief financial officer
and of the financial condition of the corporation, and shall have
such other powers and perform such other duties as may be
prescribed by the board of directors or the bylaws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
Section 1. Extent; Definitions. Subject only to the
express limitations of the corporation's Articles of
15<PAGE>
Incorporation and Sections 204 and 317 of the Corporations Code
of California, the corporation shall indemnify each of its agents
from and against any expenses, judgments, fines, settlements and
other amounts actually and reasonably incurred in connection with
any proceeding to which such person was or is a party or is
threatened to be made a party arising by reason of the fact any
such person is or was an agent of the corporation. For purposes
of this Article VI, an "agent" of the corporation includes any
person who is or was a director, officer, employee, or other
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, or was a director, officer, employee or agent of a
corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such
predecessor corporation; "proceeding" means any threatened,
pending or completed action or proceeding, whether civil,
criminal, administrative or investigative, and includes an action
or proceeding by or in the right of the corporation to procure a
judgment in its favor; and "expenses" includes, without
limitation, attorneys' fees and any expenses of establishing a
right to indemnification under subdivisions (d) or (e) (3) of
Section 317 of the Corporations Code of California.
Section 2. Indemnification Agreements. The
corporation shall, if and to the extent the Board of directors so
determines by resolution, enter into indemnification agreements
with its agents on the terms and conditions determined by the
Board of Directors, subject to those limitations upon the
corporation's capacity to indemnify its agents set forth in the
corporation's Articles of Incorporation and Sections 204 and 317
of the Corporations Code of California.
Section 3. Liability Insurance. Subject to the
provisions of subdivision (i) of section 317 of the Corporations
Code of California, the corporation shall, if and to the extent
the Board of Directors so determines by resolution, purchase and
maintain insurance in an amount and on behalf of such agents of
the corporation as the Board may specify in such resolution
against any liability asserted against or incurred by the agent
in such capacity or arising out of the agent's status as such
whether or not the corporation would have the capacity to
indemnify the agent against such liability under the provisions
of this Article VI.
Section 4. Advance of Expenses. The corporation
shall, if and to the extent the Board of Directors so determines
by resolution, advance expenses incurred by an agent in defending
any proceeding prior to the final disposition of such proceeding,
subject to the provisions of subdivision (f) of section 317 of
the Corporations Code of California.
16<PAGE>
Section 5. Fiduciaries. This Article VI shall not
apply to any proceeding against any trustee, investment manager
or other fiduciary of an employee benefit plan in such person's
capacity as such, even though such person's capacity as such,
even though such person may be an agent, as defined in Section 1
hereof.
ARTICLE VII
RECORDS AND REPORTS
Section 1. Maintenance and Inspection of Share
Register. The corporation shall keep at its principal executive
office, or at the office of its transfer agent or registrar, if
either be appointed and as determined by resolution of the board
of directors, a record of its shareholders, giving the names and
addresses of all shareholders and the number and class of shares
held by each shareholder.
A shareholder or shareholders of the corporation
holding at least five percent (5%) in the aggregate of the
outstanding voting shares of the corporation may (a) inspect and
copy the records of shareholders names and addresses and
shareholdings during usual business hours on five (5) days prior
written demand on the corporation, and (b) obtain from the
transfer agent of the corporation, on written demand and on the
tender of such transfer agent's usual charges for such list, a
list of the names and addresses of the shareholders who are
entitled to vote for the election of directors, and their
shareholdings, as of the most recent record date for which that
list has been compiled or as of a date specified by the
shareholder after the date of demand. This list shall be made
available to any such shareholder by the transfer agent on or
before the later of five (5) days after the demand is received or
the date specified in the demand as the date as of which the list
is to be compiled. The record of shareholders shall also be open
to inspection on the written demand of any shareholder or holder
of a voting trust certificate, at any time during usual business
hours, for a purpose reasonably related to the holder's interests
as a shareholder or as the holder of a voting trust certificate.
Any inspection and copying under this Section 1 may be made in
person or by an agent or attorney of the shareholder or holder of
a voting trust certificate making the demand.
Section 2. Maintenance and Inspection of Bylaws. The
corporation shall keep at its principal executive office, or if
its principal executive office is not in the state of California,
at its principal business office in this state, the original or a
copy of the bylaws as amended to date, which shall be open to
inspection by the shareholders at all reasonable times during
office hours. If the principal executive office of the
corporation is outside the State of California and the
corporation has no principal business office in this state, the
secretary shall, upon the written request of any shareholder,
furnish to that shareholder a copy of the bylaws as amended to
date.
17<PAGE>
Section 3. Maintenance and Inspection of Other
Corporate Records. The accounting books and records and minutes
of proceedings of the shareholders and the board of directors and
any committee or committees of the board of directors and any
committee or committees of the board of directors shall be kept
at such place or places designated by the board of directors, or,
in the absence of such designation, at the principal executive
office of the corporation. The minutes shall be kept in written
form and the accounting books and records shall be kept either in
written form or in any other form capable of being converted into
written form. The minutes and accounting books and records shall
be open to inspection upon the written demand of any shareholder
or holder of a voting trust certificate, at any reasonable time
during usual business hours, for a purpose reasonably related to
the holder's interests as a share holder or as the holder of a
voting trust certificate. The inspection may be made in person
or by an agent or attorney, and shall include the right to copy
and make extracts. These rights of inspection shall extend to
the records of any subsidiary corporation of the corporation.
Section 4. Inspection by Directors. Every director
shall have the absolute right at any reasonable time to inspect
all books, records and documents of every kind and the physical
properties of the corporation and each of its subsidiary
corporations. This inspection by a director may be made in
person or by an agent or attorney and the right of inspection
includes the right to copy and make extracts of documents.
Section 5. Annual Report to Shareholders. The annual
report to shareholders referred to in Section 1501 of the
California General Corporation Law is expressly dispensed with,
but nothing herein shall be interpreted as prohibiting the board
of directors from issuing annual or other periodic reports to the
shareholders of the corporation as they consider appropriate.
Section 6. Financial Statements. A copy of any
annual financial statement and any income statement of the
corporation for each quarterly period of each fiscal year, and
any accompanying balance sheet of the corporation as of the end
of each such period, that has been prepared by the corporation
shall be kept on file in the principal executive office of the
corporation for twelve (12) months and each such statement shall
be exhibited at all reasonable times to any shareholder demanding
an examination of any such statement or a copy shall be mailed to
any such shareholder.
If a shareholder or shareholders holding at least five
percent (5%) of the outstanding shares of any class of stock of
the corporation makes a written request to the corporation for an
income statement of the corporation for the three-month, six-
month or nine-month period of the then current fiscal year ended
more than thirty (30) days before the date of the request, and a
balance sheet of the corporation as of the end of that period,
18<PAGE>
the chief financial officer shall cause that statement to be
prepared, if not already prepared, and shall deliver personally
or mail that statement or statements to the person making the
request within thirty (30) days after the receipt of the request.
If the corporation has not sent to the shareholders its annual
report for the last fiscal year, this report shall likewise be
delivered or mailed to the shareholder or shareholders within
thirty (30) days after the request.
The corporation shall also, on the written request of
any shareholder, mail to the shareholder a copy of the last
annual, semi-annual or quarterly income statement which it has
prepared, and a balance sheet as of the end of that period.
The quarterly income statements and balance sheets
referred to in this section shall be accompanied by the report,
if any, of any independent accountants engaged by the corporation
or the certificate of an authorized officer of the corporation
that the financial statements were prepared without audit from
the books and records of the corporation.
Section 7. Annual Statement of General Information.
The corporation shall file annually with the Secretary of State
of the State of California, on the prescribed form, a statement
setting forth the authorized number of directors, the names and
complete business or residence addresses of all incumbent
directors, the names and complete business or residence addresses
of the chief executive officer, secretary, and chief financial
officer, the street address of its principal executive office or
principal business office in this state, and the general type of
business constituting the principal business activity of the
corporation, together with a designation of the agent of the
corporation for the purpose of service of process, all in
compliance with Section 1502 of the Corporations Code of
California.
ARTICLE VIII
GENERAL CORPORATE MATTERS
Section 1. Record Date for Purposes Other Than Notice
and Voting. For purposes of determining the shareholders
entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in
respect of any other lawful action (other than action by
shareholders by written consent without a meeting), the board of
directors may fix, in advance, a record date, which shall not be
more than sixty (60) days before any such action, and in that
case only shareholders of record on the date so fixed are
entitled to receive the dividends, distribution or allotment of
rights or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the
corporation after the record date so fixed, except as otherwise
provided in the California General Corporation Law.
19<PAGE>
If the board of directors does not so fix a record
date, the record date for determining shareholders for any such
purpose shall be at the close of business on the day on which the
board adopts the applicable resolution or the sixtieth (60th) day
before the date of that action, whichever is later.
Section 2. Checks, Drafts, Evidences of Indebtedness.
All checks, drafts, or other orders for payment of money, notes,
or other evidences of indebtedness, issued in the name of or
payable to the corporation, shall be signed or endorsed by such
person or persons and in such manner as, from time to time, shall
be determined by resolution of the board of directors.
Section 3. Corporate Contracts and Instruments; How
Executed. The board of directors, except as otherwise provided
in these bylaws, may authorize any officer or officers, agent or
agents, to enter into any contract or execute any instrument in
the name of and on behalf of the corporation, and this authority
may be general or confined to specific instances; and, unless so
authorized or ratified by the board of directors or within the
agency power of an officer, no officer, agent, or employee shall
have any power or authority to bind the corporation by any
contract or engagement or to pledge its credit or to render it
liable for any purpose of for any amount.
Section 4. Certificates for Shares. A certificate or
certificates for shares of the capital stock of the corporation
shall be issued to each shareholder when any of these shares are
fully paid, and the board of directors may authorize the issuance
of certificates or shares as partly paid provided that these
certificates shall state the amount of the consideration to be
paid for them and the amount paid. All certificates shall be
signed in the name of the corporation by the chairman of the
board or vice chairman of the board or the president or vice
president and by the chief financial officer or an assistant
treasurer or the secretary or any assistant secretary, certifying
the number of shares and the class or series of shares owned by
the shareholder. Any or all of the signatures on the certificate
may be facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been
placed on a certificate shall have ceased to be that officer,
transfer agent, or registrar before that certificate is issued,
it may be issued by the corporation with the same effect as if
that person were an officer, transfer agent or registrar at the
date of the issue.
Section 5. Lost Certificates. Except as provided in
this Section 5, no new certificates for shares shall be issued to
replace an old certificate unless the latter is surrendered to
the corporation and cancelled at the same time. The board of
directors may, in case any share certificate or certificate for
any other security is lost, stolen or destroyed, authorize the
issuance of replacement certificate on such terms and conditions
20<PAGE>
as the board may require, including provision for indemnification
of the corporation secured by a bond or other adequate security
sufficient to protect the corporation against liability, on
account of the alleged loss, theft or destruction of the
certificate or the issuance of the replacement certificate.
Section 6. Representation of Shares of Other
Corporations. The chairman of the board, the president, or any
vice president, or any other person authorized by resolution of
the board of directors or by any of the foregoing designated
officers, is authorized to vote on behalf of the corporation any
and all shares of any other corporation or corporations, foreign
or domestic, standing in the name of the corporation. The
authority granted to these officers to vote or represent on
behalf of the corporation any and all shares held by the
corporation in any other corporation or corporations may be
exercised by any of these officers in person or by any person
authorized to do so by a proxy duly executed by these officers.
Section 7. Construction and Definitions. Unless the
context requires otherwise, the general provisions, rules of
construction, and definitions in the California General
Corporation Law shall govern the construction of these bylaws.
Without limiting the generality of this provision, the singular
number includes the plural, the plural number includes the
singular, and the term "person" includes both a corporation and a
natural person.
ARTICLE IX
AMENDMENTS
Section 1. Amendment by Shareholders. New bylaws may
be adopted or these bylaws may be amended or repealed by the vote
or written consent of holders of a majority of the outstanding
shares entitled to vote; provided, however, that if the articles
of incorporation of the corporation set forth the number of
authorized directors of the corporation, the authorized number of
directors may be changed only by an amendment of the Articles of
Incorporation
Section 2. Amendment by Directors. Subject to the
rights of the shareholders as provided in Section 1 of this
Article IX, bylaws, other than a bylaw or an amendment of a bylaw
changing the authorized number of directors, may be adopted,
amended or repealed by the board of directors.
21<PAGE>
Exhibit B-79
BY-LAWS
OF
NCP HOUSTON POWER INCORPORATED
ARTICLE I - Stockholders
1.1 Place of Meetings
All meetings of the stockholders shall be held at such
place within or without the State of Delaware as may be
designated from time to time by the Board of Directors or the
President or, if not so designated, at the registered office of
the corporation.
1.2 Annual Meeting
The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may
properly be brought before the meeting shall be held on the
second Wednesday in November of each year beginning in the year
1994, at a time fixed by the Board of Directors or the President.
If this date shall fall upon a legal holiday at the place of the
meeting, then such meeting shall be held on the next succeeding
business day at the same hour. If no annual meeting is held in
accordance with the foregoing provisions, the Board of Directors
shall cause the meeting to be held as soon thereafter as
convenient.
1.3 Special Meetings
Special meetings of stockholders may be called at any
time by the President or by the Board of Directors. Special
meetings of stockholders shall be called by the President or
Secretary upon the written request of one ore more stockholders
who hold in the aggregate at least ten percent (10%) of the
shares of the capital stock entitled to vote at the meeting; such
request must state the purpose or purposes of the proposed
meeting. Business transacted at any special meeting of
stockholders shall be limited to matters relating to the purpose
or purposes stated in the notice of meeting.
1.4 Notice of Meetings
Except as otherwise provided by law, written notice of each
meeting of stockholders, whether annual or special, shall be
given not less than ten (10) nor more than sixty (60) days before
the date of the meeting to each stockholder entitled to vote at
such meeting. The notices of all meetings shall state the place,
date and hour of the meeting. The notice of special meeting
shall state, in addition, the purpose or purposes for which the
meeting is called. If mailed, notice is given when deposited in
the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the
corporation.
1.5 Voting List
The officer who has charge of the stock ledger of the
corporation shall prepare, at least ten (10) days before every
-1-<PAGE>
meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours,
for a period of at least ten (10) days prior to the meeting, at a
place within the city where the meeting is to be held. The list
shall also be produced and kept at the time and place of the
meeting during the whole time of the meeting, and may be
inspected by any stockholder who is present.
1.6 Quorum
Except as otherwise provided by law, the Certificate of
Incorporation of these By-Laws, the holders of a majority of the
shares of the capital stock of the corporation issued and
outstanding and entitled to vote at the meeting, present in
person or represented by proxy, shall constitute a quorum for the
transaction of business.
1.7 Adjournments
Any meeting of stockholders may be adjourned to another time
and to any other place at which a meeting of stockholders may be
held under these By-Laws by the stockholders present or
represented at the meeting and entitled to vote, although less
than a quorum, or, if no stockholder is present, by any officer
entitled to preside at or to act as Secretary of such meeting.
It shall not be necessary to notify any stockholder of any
adjournment of less than thirty (30) days if the time and place
of the adjourned meeting are announced at the meeting at which
adjournment is taken, unless after the adjournment a new record
date is fixed for the adjourned meeting, At the adjourned
meeting, the corporation may transact any business which might
have been transacted at the original meeting.
1.8 Voting and Proxies
Each stockholder shall have one (1) vote for each share of
stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless
otherwise provided in the Certificate of Incorporation. Each
stockholder of record entitled to vote at a meeting of
stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may vote or express such
consent or dissent in person or may authorize another person or
persons to vote or act for him by written proxy executed by the
stockholder or his authorized agent and delivered to the
Secretary of the corporation. No such proxy shall be voted or
acted upon after three years from the date of its execution,
unless the proxy expressly provides for a longer period.
1.9 Action at Meeting
When a quorum is present at any meeting, the holders of a
majority of the stock present or represented and voting on a
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matter (or if there are two or more classes of stock entitled to
vote as separate classes, then in the case of each such class,
the holders of a majority of the stock of that class present or
represented and voting on a matter) shall decide any matter to be
voted upon by the stockholders at such meeting, except when a
different vote is required by express provision of law, the
Certificate of Incorporation or these By-Laws. Any election by
stockholders shall be determined by a plurality of the votes cast
by the stockholders entitled to vote at the election.
1.10 Action Without Meeting
Any action required or permitted to be taken at any annual
or special meeting of stockholders of the corporation may be
taken without a meeting, without prior notice and without a vote,
if a consent in writing, setting forth the action so taken, is
signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to
vote on such action were present and voted. Prompt notice of the
taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders
who have not consented in writing.
ARTICLE 2 - Directors
2.1 General Powers
The business and affairs of the corporation shall be managed
by or under the direction of a Board of Directors, who may
exercise all of the powers of the corporation except as otherwise
provided by law, the Certificate of Incorporation or these By-
Laws. In the event of a vacancy in the Board of Directors, the
remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is
filled.
2.2 Number: Election: Tenure and Qualification
The number of directors which shall constitute the whole
Board shall be fixed by resolution of the Board of Directors, the
number to be not fewer than one (1) nor more than ten (10), with
the number currently fixed at three (3). Each director shall be
elected by the stockholders at the annual meeting and shall hold
office until the next annual meeting and until his successor is
elected and qualified, or until his earlier death, resignation or
removal. Directors need not be stockholders of the corporation.
2.3 Enlargement of the Board
The number of the Board of Directors may be increased at any
time by vote of a majority of the directors then in office.
2.4 Vacancies
Unless and until filled by the stockholders, any vacancy in
the Board of Directors, however occurring, including a vacancy
-3-<PAGE>
resulting from an enlargement of the Board, may be filled by vote
of a majority of the directors then in office, although less than
a quorum, or by a sole remaining director. A director elected to
fill a vacancy shall be elected for the unexpired term of his
predecessor in office, or a director chosen to fill a position
resulting from an increase in the number of directors shall hold
office until the next annual meeting of stockholders and until
his successor is elected and qualified, or until his earlier
death, resignation or removal.
2.5 Resignation and Removal
Any director may resign by delivering his written
resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time
or upon the happening of some other event.
Any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors.
2.6 Regular Meetings
Regular meetings of the Board of Directors may be held
without notice at such time and place, within or without the
State of Delaware, as shall be determined from time to time by
the Board of Directors; provided that any director who is absent
when such a determination is made shall be given notice of the
determination. A regular meeting of the Board of Directors may
be held without notice immediately after and at the same place as
the annual meeting of stockholders.
2.7 Special Meetings
Special meetings of the Board of Directors may be held at
any time and place, within or without the State of Delaware,
designated in a call by the Chairman of the board, President, two
or more directors, or by one director in the event that there is
only a single director in office.
2.8 Notice of Special Meetings
Notice of any special meeting of directors shall be given to
each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be given to each
director in person, by telephone or by telegram sent to his
business or home address at least forty-eight (48) hours in
advance of the meeting, or by written notice mailed to his
business or home address at least seventy-two (72) hours in
advance of the meeting. A notice or waiver of notice of a
meeting of the Board of Directors need not specify the purposes
of the meeting.
2.9 Meetings by Telephone Conference Calls
Directors or any members of any committee designated by the
directors may participate in a meeting of the Board of Directors
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or such committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation by such means shall constitute presence in persons
at such meeting.
2.10 Quorum
A majority of the number of directors fixed pursuant to
Section 2.2 shall constitute a quorum at all meetings of the
Board of Directors. In the event one or more of the directors
shall be disqualified to vote at any meeting, then the required
quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than
one-third (1/3) of the number so fixed constitute a quorum. In
the absence of a quorum at any such meeting, a majority of the
directors present may adjourn the meeting from time to time
without further notice other than announcement at the meeting,
until a quorum shall be present.
2.11 Action at Meeting
At any meeting of the Board of Directors at which quorum is
present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is
specified by law, the Certificate of Incorporation or these By-
Laws.
2.12 Action by Consent
Any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting, of all members of the
Board or committee, as the case may be, consent to the action in
writing, and the written consents are filed with the minutes of
proceedings of the Board or committee.
2.13 Removal
Any one or more or all of the directors may be removed, with
or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
2.14 Committees
The Board of Directors may, be resolution passed by a
majority of the whole Board, designate one or more committees,
each committee to consist of one or more of the directors of the
corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the
member or members of the committee present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent
or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors and subject
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to the provisions of the General Corporation Law of the State of
Delaware, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the
business and affairs of the corporation and may authorize the
seal of the corporation to be affixed to all papers which may
require it. Each such committee shall keep minutes and make such
reports as the Board of Directors may from time to time request.
Except as the Board of Directors may otherwise determine, any
committee may make rules for the conduct of its business, but
unless otherwise provided by the directors in such rules, its
business shall be conducted as nearly as possible in the same
manner as is provided in these By-Laws for the Board of
Directors.
2.15 Compensation of Directors
Directors may be paid such compensation for their services
and such reimbursement for expenses of attendance at meetings as
the Board of Directors may from time to time determine. No such
payment shall preclude any director from serving the corporation
or any of its parent of subsidiary corporations in any other
capacity and receiving compensation for such service.
ARTICLE 3 - Officers
3.1 Enumeration
The officers of the corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with
such other titles as the Board of Directors shall determine,
including a Chairman of the Board, a Vice Chairman of the Board,
and one or more Vice Presidents, Assistant Treasurers and
Assistant Secretaries. The Board of Directors may appoint such
other officers as it may deem appropriate.
3.2 Election
The President, Treasurer and Secretary shall be elected
annually by the Board of Directors at its first meeting following
the annual meeting of stockholders. Other officers may be
appointed by the Board of Directors at such meeting or at any
other meeting.
3.3 Qualification
The President need not be a director. No officer need be a
stockholder. Any two or more offices may be held by the same
person.
3.4 Tenure
Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, each officer shall hold office
until his successor is elected and qualified, unless a different
term is specified in the vote choosing or appointing him, or
until his earlier death, resignation or removal.
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3.5 Resignation and Removal
Any officer may resign by delivering his written resignation
to the corporation at its principal office or to the President or
or Secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon
the happening of some other event.
Board of Directors, or a committee duly authorized to do so,
may remove any officer with or without cause. Except as the
Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as
an officer for any period following his resignation or removal,
or any right to damages on account of such removal, whether his
compensation be by month or by the year or otherwise, unless such
compensation is expressly provided in a duly authorized written
agreement with the corporation.
3.6 Vacancies
The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled
for such period as it may determine any offices other than those
of President, Treasurer and Secretary. Each such successor shall
hold office for the unexpired term of his predecessor and until
his successor is elected and qualified, or until his earlier
death, resignation or removal.
3.7 Chairman of the Board and Vice-Chairman of the Board
If the Board of Directors appoints a Chairman of the Board,
he shall, when present, preside at all meetings of the Board of
Directors. He shall perform such duties and possess such powers
as are usually vested in the office of the Chairman of the Board
or as may be vested in him by the Board of Directors. If the
Board of Directors appoints a Vice-Chairman of the Board, he
shall, in the absence or disability of the Chairman of the Board,
perform the duties and exercise the powers of the Chairman of the
Board and shall perform such other duties and possess such other
powers as may from time to time be vested in him by the Board of
Directors.
3.8 President
The President shall be the chief operating officer of the
corporation. He shall also be the chief executive officer of the
corporation unless such title is assigned to a Chairman of the
Board. The President shall, subject to the direction of the
Board of Directors, have general supervision and control of the
business of the corporation. Unless otherwise provided by the
directors, he shall preside at all meetings of the stockholders
and of the Board of Directors (except as provided in Section 3.7
above). The President shall perform such other duties and shall
have such other powers as the Board of Directors may from time to
time prescribe.
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3.9 Vice Presidents
Any Vice President shall perform such duties and possess
such powers as the Board of Directors or the President may from
time to time prescribe. In the event of the absence, inability,
or refusal to act of the President, the Vice President (or if
there shall be more than one, the Vice Presidents in the order
determined by the Board of Directors) shall perform the duties of
the President and when so performing shall have all the powers of
and be subject to all the restrictions upon the President. The
Board of Directors may assign to any Vice President the title of
Executive Vice President, Senior Vice President or any other
title selected by the Board of Directors.
3.10 Secretary and Assistant Secretaries
The Secretary shall perform such duties and shall have such
powers as the Board of Directors or the President may from time
to time prescribe. In addition, the Secretary shall perform such
duties and have such powers as are incident to the office of the
secretary, including without limitation the duty and power to
give notices of all meetings of stockholders and special meetings
of the board of Directors, to attend all meetings of stockholders
and the Board of Directors and keep a record of the proceedings,
to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records
and the corporate seal and to affix and attest to the same on
documents.
Any Assistant Secretary shall perform such duties and posses
such powers as the Board of Directors, the President or the
Secretary may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Secretary, the
Assistant Secretary, (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of
the Secretary.
In the absence of the Secretary or any Assistant Secretary
at any meeting of stockholders or directors, the person presiding
at the meeting shall designate a temporary secretary to keep, a
record of the meeting.
3.11 Treasurer and Assistant Treasurers
The Treasurer shall perform such duties and shall have such
powers as may from time to time be assigned to him by the Board
of Directors or the President. In addition, the Treasurer shall
perform such duties and have such powers as are incident to the
office of treasurer, including without limitation the duty and
power to keep and be responsible for all funds and securities of
the corporation, to deposit funds of the corporation in
depositories selected in accordance with these By-Laws, to
disburse such funds as ordered by the Board of Directors, to make
proper accounts of such funds, and to render as required by the
-8-<PAGE>
Board of Directors statements of all such transactions and of the
financial condition of the corporation.
The Assistant Treasurers shall perform such duties and
possess such powers as the Board of Directors, the President or
the Treasurer may from time to time prescribe. In the event of
the absence, inability or refusal to act of the Treasurer, the
Assistant Treasurer, (or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of
the Treasurer.
3.12 Bonded Officers
The Board of Directors may require any officer to give the
corporation a bond in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors upon such
terms and conditions as the Board of Directors may specify,
including without limitation a bond for the faithful performance
of his duties and for the restoration to the corporation of all
property in his possession or under his control belonging to the
corporation.
3.13 Salaries
Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or
allowed from time to time by the Board of Directors.
ARTICLE 4 - Capital Stock
4.1 Issuance of Stock
Unless otherwise voted by the stockholders and subject to
the provisions of the Certificate of Incorporation, the whole or
any part of any unissued balance of the authorized capital stock
of the corporation or the whole or any of any unissued balance of
the authorized capital stock of the corporation held in its
treasury may be issued, sold, transferred or otherwise disposed
of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may
determine.
4.2 Certificates of Stock
Every holder of stock of the corporation shall be entitled
to have a certificate, in such form as may be prescribed by law
and by the Board of Directors certifying the number and class of
shares owned by him in the corporation. Each such certificate
shall be signed by, or in the name of the corporation by, the
Chairman or Vice-Chairman, if any, of the Board of Directors, or
the President or a Vice President, and the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary
of the corporation. Any or all of the signatures on the
certificate may be a facsimile.
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Each certificate for shares of stock which are subject to
any restriction on transfer pursuant to the Certificate of
Incorporation, the By-Laws, applicable securities laws or any
agreement among any number of shareholders or among such holders
and the corporation shall have conspicuously noted on the face or
back of the certificate either the full text of the restriction
or a statement of the existence of such restriction.
4.3 Transfers
Subject to the restrictions, if any, stated or noted on the
stock certificates, shares of stock may be transferred on the
books of the corporation by the surrender to the corporation of
its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power
of attorney properly executed, and with such proof of authority
or the authenticity of signature as the corporation or its
transfer agent may reasonably require. Except as may be
otherwise required by law, by the Certificate of Incorporation or
by these By-Laws, the corporation shall be entitled to treat the
record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and
the right to vote with respect to such stock, regardless of any
transfer, pledge or other disposition of such stock until the
shares have been transferred on the books of the corporation in
accordance with the requirements of these By-Laws.
4.4 Lost, Stolen or Destroyed Certificates
The corporation may issue a new certificate of stock in
place of any previously issued certificate alleged to have been
lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of
reasonable evidence of such loss, theft or destruction and the
giving of such indemnity as the Board of Directors may require
for the protection of the corporation or any transfer agent or
registrar.
4.5 Record Date
The Board of Directors may fix in advance a date as a record
date for the determination of the stockholders entitled to notice
of or to vote at any meeting of stockholders or to express
consent (or dissent) to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other
lawful action. Such record date shall not be more than 60 nor
less than 10 days before the date of such meeting, nor more than
60 days prior to any other action to which such record date
releases.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day before
the day on which notice is given, or, if notice is waived, at the
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close of business on the day before the day on which the meeting
is held. The record date for determining stockholders entitled
to express consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is
expressed. The record date for determining stockholders for any
other purpose shall be at the close of business on the day on
which the Board of Directors adopts the resolution relating to
such purpose.
A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
ARTICLE 5 - Indemnification
The corporation shall, to the fullest extent permitted by
Section 145 or the General Corporation Law of Delaware, as that
section may be amended and supplemented from time to time,
indemnify any director, officer or trustee which it shall have
power to indemnify under the section against any expenses,
liabilities or other matters referred to in or covered by that
section. The indemnification provided for in this Article (i)
shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any by-law, agreement or vote
of stockholders or disinterested directors or otherwise, both as
to action in their official capacities and as to action in
another capacity while holding such office, (ii) shall continue
as to a person who has ceased to be a director, officer or
trustee and (iii) shall inure to the benefit of the heirs,
executors and administrators of such a person. The corporation's
obligation to provide indemnification under this Article shall be
offset to the extent of any other source of indemnification or
any otherwise applicable insurance coverage under a policy
maintained by the corporation or any other person.
Expenses incurred by a director of the Corporation in
defending a civil or criminal action, suit or proceeding by
reason of the fact that he is or was a director of the
Corporation (or was serving at the Company's request as a
director or officer of another corporation) shall be paid by the
corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of such director to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Corporation as authorized by relevant sections of the general
Corporation Law of Delaware.
To assure indemnification under this Article of all such
persons who are determined by the corporation or otherwise to be
or to have been "fiduciaries" of any employee benefit plan of the
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corporation which may exist from time to time, such section 145
shall, for the purposes of this Article, be interpreted as
follows: an "other enterprise" shall be deemed to include such
an employee benefit plan, including, without limitation, any plan
of the corporation which is governed by the Act of Congress
entitled "Employee Retirement Income Security Act of 1974," as
amended from time to time; the corporation shall be deemed to
have requested a person to serve an employee benefit plan where
the performance by such person of his duties to the corporation
also imposes duties on, or otherwise involves services by, such
person to the plan or participants or beneficiaries of the plan;
excise taxes assessed on a person with respect to an employee
benefit plan pursuant to such Act of Congress shall be deemed
"fines"; and action taken or omitted by a person with respect to
an employee benefit plan in the performance of such person's
duties for a purpose reasonably believed by such person to be in
the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the
best interest of the corporation.
ARTICLE 6 - General Provisions
6.1 Fiscal Year
Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall
begin on the 1st day of January in each year and end on the 31st
day of December in each year.
6.2 Corporate Seal
The corporate seal shall be in such form as shall be
approved by the Board of Directors.
6.3 Execution of instruments
The President or the Treasurer shall have power to execute
and deliver on behalf and in the name of the corporation any
instrument requiring the signature of an officer of the
corporation, except as otherwise provided in these By-Laws, or
where the execution and delivery of such an instrument shall be
expressly delegated by the Board of Directors to some other
officer or agent of the corporation.
6.4 Waiver of Notice
Whenever any notice whatsoever is required to be given by
law, by the Certificate of Incorporation or by these By-Laws, a
waiver of such notice either in writing signed by the person
entitled to such notice or such person's duly authorized
attorney, or by telegraph, cable or any other available method,
whether before, at or after the time stated in such waiver, or
the appearance of such person or persons at such meeting in
person or by proxy, shall be deemed equivalent to such notice.
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6.5 Voting of Securities
Except as the directors may otherwise designate, the
President or Treasurer may waive notice of, and act as, or
appoint any person or persons to act as, proxy or attorney-in-
fact for this corporation (with or without power of substitution)
at, any meeting of stockholders or shareholders of any other
corporation or organization, the securities of which may be held
by this corporation.
6.6 Evidence of Authority
A certificate by the Secretary, or an Assistant Secretary,
or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or
representative of the corporation shall as to all persons who
rely on the certificate in good faith be conclusive evidence of
such action.
6.7 Certificate of Incorporation
All references in these By-Laws to the Certificate of
Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from
time to time.
6.8 Transactions with Interested Parties
No contract or transaction between the corporation and one
or more of the directors or officers, or between the corporation
and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors or a committee of the Board of
Directors which authorizes the contract or transaction or solely
because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board or
committee in good faith authorizes the contract or transaction by
the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a
quorum;
(2) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee of the Board of
Directors, or the stockholders.
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Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors
or of a committee which authorizes the contract or transaction.
6.9 Severability
Any determination that any provision of these By-Laws is for
any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these By-Laws.
6.10 Pronouns
All pronouns used in these By-Laws shall be deemed to refer
to the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons may require.
ARTICLE 7 - Amendments
7.1 By the Board of Directors. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the
affirmative vote of a majority of the directors present at any
regular or special meeting of the Board of Directors at which a
quorum is present.
7.2 By the Stockholders
These By-Laws may be altered, amended or repealed or new by-
laws may be adopted by the affirmative vote of the holders of a
majority of the shares of the capital stock of the corporation
issued and outstanding and entitled to vote at any regular
meeting of stockholders, or at any special meeting of
stockholders, provided notice of such alteration, amendment,
repeal or adoption of new By-Laws shall have been stated in the
notice of such special meeting.
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Exhibit B-80
BY-LAWS
OF
NCP PERRY INCORPORATED
ARTICLE I - Stockholders
1.1 Place of Meetings
All meetings of the stockholders shall be held at such
place within or without the State of Delaware as may be
designated from time to time by the Board of Directors or the
President or, if not so designated, at the registered office of
the corporation.
1.2 Annual Meeting
The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may
properly be brought before the meeting shall be held on the
second Wednesday in November of each year beginning in the year
1994, at a time fixed by the Board of Directors or the President.
If this date shall fall upon a legal holiday at the place of the
meeting, then such meeting shall be held on the next succeeding
business day at the same hour. If no annual meeting is held in
accordance with the foregoing provisions, the Board of Directors
shall cause the meeting to be held as soon thereafter as
convenient.
1.3 Special Meetings
Special meetings of stockholders may be called at any
time by the President or by the Board of Directors. Special
meetings of stockholders shall be called by the President or
Secretary upon the written request of one ore more stockholders
who hold in the aggregate at least ten percent (10%) of the
shares of the capital stock entitled to vote at the meeting; such
request must state the purpose or purposes of the proposed
meeting. Business transacted at any special meeting of
stockholders shall be limited to matters relating to the purpose
or purposes stated in the notice of meeting.
1.4 Notice of Meetings
Except as otherwise provided by law, written notice of each
meeting of stockholders, whether annual or special, shall be
given not less than ten (10) nor more than sixty (60) days before
the date of the meeting to each stockholder entitled to vote at
such meeting. The notices of all meetings shall state the place,
date and hour of the meeting. The notice of special meeting
shall state, in addition, the purpose or purposes for which the
meeting is called. If mailed, notice is given when deposited in
the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the
corporation.
1.5 Voting List
The officer who has charge of the stock ledger of the
corporation shall prepare, at least ten (10) days before every
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meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours,
for a period of at least ten (10) days prior to the meeting, at a
place within the city where the meeting is to be held. The list
shall also be produced and kept at the time and place of the
meeting during the whole time of the meeting, and may be
inspected by any stockholder who is present.
1.6 Quorum
Except as otherwise provided by law, the Certificate of
Incorporation of these By-Laws, the holders of a majority of the
shares of the capital stock of the corporation issued and
outstanding and entitled to vote at the meeting, present in
person or represented by proxy, shall constitute a quorum for the
transaction of business.
1.7 Adjournments
Any meeting of stockholders may be adjourned to another time
and to any other place at which a meeting of stockholders may be
held under these By-Laws by the stockholders present or
represented at the meeting and entitled to vote, although less
than a quorum, or, if no stockholder is present, by any officer
entitled to preside at or to act as Secretary of such meeting.
It shall not be necessary to notify any stockholder of any
adjournment of less than thirty (30) days if the time and place
of the adjourned meeting are announced at the meeting at which
adjournment is taken, unless after the adjournment a new record
date is fixed for the adjourned meeting, At the adjourned
meeting, the corporation may transact any business which might
have been transacted at the original meeting.
1.8 Voting and Proxies
Each stockholder shall have one (1) vote for each share of
stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless
otherwise provided in the Certificate of Incorporation. Each
stockholder of record entitled to vote at a meeting of
stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may vote or express such
consent or dissent in person or may authorize another person or
persons to vote or act for him by written proxy executed by the
stockholder or his authorized agent and delivered to the
Secretary of the corporation. No such proxy shall be voted or
acted upon after three years from the date of its execution,
unless the proxy expressly provides for a longer period.
1.9 Action at Meeting
When a quorum is present at any meeting, the holders of a
majority of the stock present or represented and voting on a
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matter (or if there are two or more classes of stock entitled to
vote as separate classes, then in the case of each such class,
the holders of a majority of the stock of that class present or
represented and voting on a matter) shall decide any matter to be
voted upon by the stockholders at such meeting, except when a
different vote is required by express provision of law, the
Certificate of Incorporation or these By-Laws. Any election by
stockholders shall be determined by a plurality of the votes cast
by the stockholders entitled to vote at the election.
1.10 Action Without Meeting
Any action required or permitted to be taken at any annual
or special meeting of stockholders of the corporation may be
taken without a meeting, without prior notice and without a vote,
if a consent in writing, setting forth the action so taken, is
signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to
vote on such action were present and voted. Prompt notice of the
taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders
who have not consented in writing.
ARTICLE 2 - Directors
2.1 General Powers
The business and affairs of the corporation shall be managed
by or under the direction of a Board of Directors, who may
exercise all of the powers of the corporation except as otherwise
provided by law, the Certificate of Incorporation or these By-
Laws. In the event of a vacancy in the Board of Directors, the
remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is
filled.
2.2 Number: Election: Tenure and Qualification
The number of directors which shall constitute the whole
Board shall be fixed by resolution of the Board of Directors, the
number to be not fewer than one (1) nor more than ten (10), with
the number currently fixed at three (3). Each director shall be
elected by the stockholders at the annual meeting and shall hold
office until the next annual meeting and until his successor is
elected and qualified, or until his earlier death, resignation or
removal. Directors need not be stockholders of the corporation.
2.3 Enlargement of the Board
The number of the Board of Directors may be increased at any
time by vote of a majority of the directors then in office.
2.4 Vacancies
Unless and until filled by the stockholders, any vacancy in
the Board of Directors, however occurring, including a vacancy
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resulting from an enlargement of the Board, may be filled by vote
of a majority of the directors then in office, although less than
a quorum, or by a sole remaining director. A director elected to
fill a vacancy shall be elected for the unexpired term of his
predecessor in office, or a director chosen to fill a position
resulting from an increase in the number of directors shall hold
office until the next annual meeting of stockholders and until
his successor is elected and qualified, or until his earlier
death, resignation or removal.
2.5 Resignation and Removal
Any director may resign by delivering his written
resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time
or upon the happening of some other event.
Any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors.
2.6 Regular Meetings
Regular meetings of the Board of Directors may be held
without notice at such time and place, within or without the
State of Delaware, as shall be determined from time to time by
the Board of Directors; provided that any director who is absent
when such a determination is made shall be given notice of the
determination. A regular meeting of the Board of Directors may
be held without notice immediately after and at the same place as
the annual meeting of stockholders.
2.7 Special Meetings
Special meetings of the Board of Directors may be held at
any time and place, within or without the State of Delaware,
designated in a call by the Chairman of the board, President, two
or more directors, or by one director in the event that there is
only a single director in office.
2.8 Notice of Special Meetings
Notice of any special meeting of directors shall be given to
each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be given to each
director in person, by telephone or by telegram sent to his
business or home address at least forty-eight (48) hours in
advance of the meeting, or by written notice mailed to his
business or home address at least seventy-two (72) hours in
advance of the meeting. A notice or waiver of notice of a
meeting of the Board of Directors need not specify the purposes
of the meeting.
2.9 Meetings by Telephone Conference Calls
Directors or any members of any committee designated by the
directors may participate in a meeting of the Board of Directors
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or such committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation by such means shall constitute presence in persons
at such meeting.
2.10 Quorum
A majority of the number of directors fixed pursuant to
Section 2.2 shall constitute a quorum at all meetings of the
Board of Directors. In the event one or more of the directors
shall be disqualified to vote at any meeting, then the required
quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than
one-third (1/3) of the number so fixed constitute a quorum. In
the absence of a quorum at any such meeting, a majority of the
directors present may adjourn the meeting from time to time
without further notice other than announcement at the meeting,
until a quorum shall be present.
2.11 Action at Meeting
At any meeting of the Board of Directors at which quorum is
present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is
specified by law, the Certificate of Incorporation or these By-
Laws.
2.12 Action by Consent
Any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting, of all members of the
Board or committee, as the case may be, consent to the action in
writing, and the written consents are filed with the minutes of
proceedings of the Board or committee.
2.13 Removal
Any one or more or all of the directors may be removed, with
or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
2.14 Committees
The Board of Directors may, be resolution passed by a
majority of the whole Board, designate one or more committees,
each committee to consist of one or more of the directors of the
corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the
member or members of the committee present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent
or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors and subject
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to the provisions of the General Corporation Law of the State of
Delaware, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the
business and affairs of the corporation and may authorize the
seal of the corporation to be affixed to all papers which may
require it. Each such committee shall keep minutes and make such
reports as the Board of Directors may from time to time request.
Except as the Board of Directors may otherwise determine, any
committee may make rules for the conduct of its business, but
unless otherwise provided by the directors in such rules, its
business shall be conducted as nearly as possible in the same
manner as is provided in these By-Laws for the Board of
Directors.
2.15 Compensation of Directors
Directors may be paid such compensation for their services
and such reimbursement for expenses of attendance at meetings as
the Board of Directors may from time to time determine. No such
payment shall preclude any director from serving the corporation
or any of its parent of subsidiary corporations in any other
capacity and receiving compensation for such service.
ARTICLE 3 - Officers
3.1 Enumeration
The officers of the corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with
such other titles as the Board of Directors shall determine,
including a Chairman of the Board, a Vice Chairman of the Board,
and one or more Vice Presidents, Assistant Treasurers and
Assistant Secretaries. The Board of Directors may appoint such
other officers as it may deem appropriate.
3.2 Election
The President, Treasurer and Secretary shall be elected
annually by the Board of Directors at its first meeting following
the annual meeting of stockholders. Other officers may be
appointed by the Board of Directors at such meeting or at any
other meeting.
3.3 Qualification
The President need not be a director. No officer need be a
stockholder. Any two or more offices may be held by the same
person.
3.4 Tenure
Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, each officer shall hold office
until his successor is elected and qualified, unless a different
term is specified in the vote choosing or appointing him, or
until his earlier death, resignation or removal.
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3.5 Resignation and Removal
Any officer may resign by delivering his written resignation
to the corporation at its principal office or to the President or
or Secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon
the happening of some other event.
Board of Directors, or a committee duly authorized to do so,
may remove any officer with or without cause. Except as the
Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as
an officer for any period following his resignation or removal,
or any right to damages on account of such removal, whether his
compensation be by month or by the year or otherwise, unless such
compensation is expressly provided in a duly authorized written
agreement with the corporation.
3.6 Vacancies
The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled
for such period as it may determine any offices other than those
of President, Treasurer and Secretary. Each such successor shall
hold office for the unexpired term of his predecessor and until
his successor is elected and qualified, or until his earlier
death, resignation or removal.
3.7 Chairman of the Board and Vice-Chairman of the Board
If the Board of Directors appoints a Chairman of the Board,
he shall, when present, preside at all meetings of the Board of
Directors. He shall perform such duties and possess such powers
as are usually vested in the office of the Chairman of the Board
or as may be vested in him by the Board of Directors. If the
Board of Directors appoints a Vice-Chairman of the Board, he
shall, in the absence or disability of the Chairman of the Board,
perform the duties and exercise the powers of the Chairman of the
Board and shall perform such other duties and possess such other
powers as may from time to time be vested in him by the Board of
Directors.
3.8 President
The President shall be the chief operating officer of the
corporation. He shall also be the chief executive officer of the
corporation unless such title is assigned to a Chairman of the
Board. The President shall, subject to the direction of the
Board of Directors, have general supervision and control of the
business of the corporation. Unless otherwise provided by the
directors, he shall preside at all meetings of the stockholders
and of the Board of Directors (except as provided in Section 3.7
above). The President shall perform such other duties and shall
have such other powers as the Board of Directors may from time to
time prescribe.
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3.9 Vice Presidents
Any Vice President shall perform such duties and possess
such powers as the Board of Directors or the President may from
time to time prescribe. In the event of the absence, inability,
or refusal to act of the President, the Vice President (or if
there shall be more than one, the Vice Presidents in the order
determined by the Board of Directors) shall perform the duties of
the President and when so performing shall have all the powers of
and be subject to all the restrictions upon the President. The
Board of Directors may assign to any Vice President the title of
Executive Vice President, Senior Vice President or any other
title selected by the Board of Directors.
3.10 Secretary and Assistant Secretaries
The Secretary shall perform such duties and shall have such
powers as the Board of Directors or the President may from time
to time prescribe. In addition, the Secretary shall perform such
duties and have such powers as are incident to the office of the
secretary, including without limitation the duty and power to
give notices of all meetings of stockholders and special meetings
of the board of Directors, to attend all meetings of stockholders
and the Board of Directors and keep a record of the proceedings,
to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records
and the corporate seal and to affix and attest to the same on
documents.
Any Assistant Secretary shall perform such duties and posses
such powers as the Board of Directors, the President or the
Secretary may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Secretary, the
Assistant Secretary, (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of
the Secretary.
In the absence of the Secretary or any Assistant Secretary
at any meeting of stockholders or directors, the person presiding
at the meeting shall designate a temporary secretary to keep, a
record of the meeting.
3.11 Treasurer and Assistant Treasurers
The Treasurer shall perform such duties and shall have such
powers as may from time to time be assigned to him by the Board
of Directors or the President. In addition, the Treasurer shall
perform such duties and have such powers as are incident to the
office of treasurer, including without limitation the duty and
power to keep and be responsible for all funds and securities of
the corporation, to deposit funds of the corporation in
depositories selected in accordance with these By-Laws, to
disburse such funds as ordered by the Board of Directors, to make
proper accounts of such funds, and to render as required by the
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Board of Directors statements of all such transactions and of the
financial condition of the corporation.
The Assistant Treasurers shall perform such duties and
possess such powers as the Board of Directors, the President or
the Treasurer may from time to time prescribe. In the event of
the absence, inability or refusal to act of the Treasurer, the
Assistant Treasurer, (or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of
the Treasurer.
3.12 Bonded Officers
The Board of Directors may require any officer to give the
corporation a bond in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors upon such
terms and conditions as the Board of Directors may specify,
including without limitation a bond for the faithful performance
of his duties and for the restoration to the corporation of all
property in his possession or under his control belonging to the
corporation.
3.13 Salaries
Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or
allowed from time to time by the Board of Directors.
ARTICLE 4 - Capital Stock
4.1 Issuance of Stock
Unless otherwise voted by the stockholders and subject to
the provisions of the Certificate of Incorporation, the whole or
any part of any unissued balance of the authorized capital stock
of the corporation or the whole or any of any unissued balance of
the authorized capital stock of the corporation held in its
treasury may be issued, sold, transferred or otherwise disposed
of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may
determine.
4.2 Certificates of Stock
Every holder of stock of the corporation shall be entitled
to have a certificate, in such form as may be prescribed by law
and by the Board of Directors certifying the number and class of
shares owned by him in the corporation. Each such certificate
shall be signed by, or in the name of the corporation by, the
Chairman or Vice-Chairman, if any, of the Board of Directors, or
the President or a Vice President, and the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary
of the corporation. Any or all of the signatures on the
certificate may be a facsimile.
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Each certificate for shares of stock which are subject to
any restriction on transfer pursuant to the Certificate of
Incorporation, the By-Laws, applicable securities laws or any
agreement among any number of shareholders or among such holders
and the corporation shall have conspicuously noted on the face or
back of the certificate either the full text of the restriction
or a statement of the existence of such restriction.
4.3 Transfers
Subject to the restrictions, if any, stated or noted on the
stock certificates, shares of stock may be transferred on the
books of the corporation by the surrender to the corporation of
its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power
of attorney properly executed, and with such proof of authority
or the authenticity of signature as the corporation or its
transfer agent may reasonably require. Except as may be
otherwise required by law, by the Certificate of Incorporation or
by these By-Laws, the corporation shall be entitled to treat the
record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and
the right to vote with respect to such stock, regardless of any
transfer, pledge or other disposition of such stock until the
shares have been transferred on the books of the corporation in
accordance with the requirements of these By-Laws.
4.4 Lost, Stolen or Destroyed Certificates
The corporation may issue a new certificate of stock in
place of any previously issued certificate alleged to have been
lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of
reasonable evidence of such loss, theft or destruction and the
giving of such indemnity as the Board of Directors may require
for the protection of the corporation or any transfer agent or
registrar.
4.5 Record Date
The Board of Directors may fix in advance a date as a record
date for the determination of the stockholders entitled to notice
of or to vote at any meeting of stockholders or to express
consent (or dissent) to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other
lawful action. Such record date shall not be more than 60 nor
less than 10 days before the date of such meeting, nor more than
60 days prior to any other action to which such record date
releases.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day before
the day on which notice is given, or, if notice is waived, at the
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close of business on the day before the day on which the meeting
is held. The record date for determining stockholders entitled
to express consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is
expressed. The record date for determining stockholders for any
other purpose shall be at the close of business on the day on
which the Board of Directors adopts the resolution relating to
such purpose.
A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
ARTICLE 5 - Indemnification
The corporation shall, to the fullest extent permitted by
Section 145 or the General Corporation Law of Delaware, as that
section may be amended and supplemented from time to time,
indemnify any director, officer or trustee which it shall have
power to indemnify under the section against any expenses,
liabilities or other matters referred to in or covered by that
section. The indemnification provided for in this Article (i)
shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any by-law, agreement or vote
of stockholders or disinterested directors or otherwise, both as
to action in their official capacities and as to action in
another capacity while holding such office, (ii) shall continue
as to a person who has ceased to be a director, officer or
trustee and (iii) shall inure to the benefit of the heirs,
executors and administrators of such a person. The corporation's
obligation to provide indemnification under this Article shall be
offset to the extent of any other source of indemnification or
any otherwise applicable insurance coverage under a policy
maintained by the corporation or any other person.
Expenses incurred by a director of the Corporation in
defending a civil or criminal action, suit or proceeding by
reason of the fact that he is or was a director of the
Corporation (or was serving at the Company's request as a
director or officer of another corporation) shall be paid by the
corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of such director to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Corporation as authorized by relevant sections of the general
Corporation Law of Delaware.
To assure indemnification under this Article of all such
persons who are determined by the corporation or otherwise to be
or to have been "fiduciaries" of any employee benefit plan of the
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corporation which may exist from time to time, such section 145
shall, for the purposes of this Article, be interpreted as
follows: an "other enterprise" shall be deemed to include such
an employee benefit plan, including, without limitation, any plan
of the corporation which is governed by the Act of Congress
entitled "Employee Retirement Income Security Act of 1974," as
amended from time to time; the corporation shall be deemed to
have requested a person to serve an employee benefit plan where
the performance by such person of his duties to the corporation
also imposes duties on, or otherwise involves services by, such
person to the plan or participants or beneficiaries of the plan;
excise taxes assessed on a person with respect to an employee
benefit plan pursuant to such Act of Congress shall be deemed
"fines"; and action taken or omitted by a person with respect to
an employee benefit plan in the performance of such person's
duties for a purpose reasonably believed by such person to be in
the interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose which is not opposed to the
best interest of the corporation.
ARTICLE 6 - General Provisions
6.1 Fiscal Year
Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall
begin on the 1st day of January in each year and end on the 31st
day of December in each year.
6.2 Corporate Seal
The corporate seal shall be in such form as shall be
approved by the Board of Directors.
6.3 Execution of instruments
The President or the Treasurer shall have power to execute
and deliver on behalf and in the name of the corporation any
instrument requiring the signature of an officer of the
corporation, except as otherwise provided in these By-Laws, or
where the execution and delivery of such an instrument shall be
expressly delegated by the Board of Directors to some other
officer or agent of the corporation.
6.4 Waiver of Notice
Whenever any notice whatsoever is required to be given by
law, by the Certificate of Incorporation or by these By-Laws, a
waiver of such notice either in writing signed by the person
entitled to such notice or such person's duly authorized
attorney, or by telegraph, cable or any other available method,
whether before, at or after the time stated in such waiver, or
the appearance of such person or persons at such meeting in
person or by proxy, shall be deemed equivalent to such notice.
-12-<PAGE>
6.5 Voting of Securities
Except as the directors may otherwise designate, the
President or Treasurer may waive notice of, and act as, or
appoint any person or persons to act as, proxy or attorney-in-
fact for this corporation (with or without power of substitution)
at, any meeting of stockholders or shareholders of any other
corporation or organization, the securities of which may be held
by this corporation.
6.6 Evidence of Authority
A certificate by the Secretary, or an Assistant Secretary,
or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or
representative of the corporation shall as to all persons who
rely on the certificate in good faith be conclusive evidence of
such action.
6.7 Certificate of Incorporation
All references in these By-Laws to the Certificate of
Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from
time to time.
6.8 Transactions with Interested Parties
No contract or transaction between the corporation and one
or more of the directors or officers, or between the corporation
and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors or a committee of the Board of
Directors which authorizes the contract or transaction or solely
because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board or
committee in good faith authorizes the contract or transaction by
the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a
quorum;
(2) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee of the Board of
Directors, or the stockholders.
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Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors
or of a committee which authorizes the contract or transaction.
6.9 Severability
Any determination that any provision of these By-Laws is for
any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these By-Laws.
6.10 Pronouns
All pronouns used in these By-Laws shall be deemed to refer
to the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons may require.
ARTICLE 7 - Amendments
7.1 By the Board of Directors. These By-Laws may be
altered, amended or repealed or new By-Laws may be adopted by the
affirmative vote of a majority of the directors present at any
regular or special meeting of the Board of Directors at which a
quorum is present.
7.2 By the Stockholders
These By-Laws may be altered, amended or repealed or new by-
laws may be adopted by the affirmative vote of the holders of a
majority of the shares of the capital stock of the corporation
issued and outstanding and entitled to vote at any regular
meeting of stockholders, or at any special meeting of
stockholders, provided notice of such alteration, amendment,
repeal or adoption of new By-Laws shall have been stated in the
notice of such special meeting.
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Exhibit B-81
BYLAWS
OF
NCP NEW YORK INCORPORATED
ARTICLE I
Offices
Section 1.1. Registered Office. The registered
office shall be established and maintained with Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, City of
Wilmington, County of New Castle, Delaware. The Corporation
Trust Company shall be the registered agent of this corporation
in charge thereof.
Section 1.2. Other Offices. The corporation may
have other offices, either within or without the State of
Delaware, at such place or places as the Board of Directors may
from time to time determine or the business of the corporation
may require.
ARTICLE II
Meetings of Stockholders
Section 2.1. Annual Meetings. An annual
meeting of stockholders shall be held for the election of
directors on the second Wednesday of November in each year at
10:00 A.M., or such other date or time as may be fixed by the
Board of Directors; provided, however, that should said day fall
upon a legal holiday, such annual meeting of stockholders shall
be held at the same time on the next succeeding day which is a
full business day, at the City of Santa Ana, State of California.
Any other proper business may be transacted at the annual
meeting.
Section 2.2. Special Meetings. Special meetings
of stockholders for any purpose or purposes may be called at any
time by the Board of Directors, or by a committee of the Board of
Directors which has been duly designated by the Board of
Directors, and whose powers and authority, as expressly provided
in a resolution of the Board of Directors, include the power to
call such meetings, or by one or more stockholders holding in the
aggregate shares entitled to cast not less than ten percent of
the votes at such meeting.
Section 2.3. Notice of Meetings. Whenever
stockholders are required or permitted to take any action at a
1<PAGE>
meeting, a written notice of the meeting shall be given which
shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the
meeting is called. Unless otherwise provided by law, the written
notice of any meeting shall be given not less than ten nor more
than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his
or her address as it appears on the records of the corporation.
Section 2.4. Adjournments. Any meeting of
stockholders, annual or special may adjourn from time to time to
reconvene at the same or some other place, and notice need not be
given of any such adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken.
At the adjourned meeting the corporation may transact any
business which might have been transacted at the original
meeting. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the
meeting.
Section 2.5. Quorum. At each meeting of
stockholders, except where otherwise provided by law or the
Certificate of Incorporation of these Bylaws, the holders of a
majority of the outstanding shares of stock entitled to vote at
the meeting, present in person or by proxy, shall constitute a
quorum. In the absence of a quorum, the stockholders so present
may, by majority vote, adjourn the meeting from time to time in
the manner provided in Section 2.4 of these Bylaws until a quorum
shall attend. Shares of its own stock belonging to the
corporation or to another corporation, if a majority of the
shares entitled to vote in the election of directors of such
other corporation is held, directly or indirectly, by the
corporation, shall neither be entitled to vote nor be counted for
quorum purposes; provided, however, that the foregoing shall not
limit the right of any corporation to vote stock, including but
not limited to its own stock, held by it in a fiduciary capacity.
Section 2.6. Organization. Meetings of
stockholders shall be presided over by the Chairman of the Board,
if any, or in his or her absence by the Vice Chairman of the
Board, if any, or in his or her absence by the President, or in
his or her absence by a Vice President, or in the absence of the
foregoing persons by a chairman designated by the Board of
Directors, or in the absence of such designation, by a chairman
chosen at the meeting. The Secretary shall act as secretary of
the meeting, but in his or her absence the chairman of the
meeting may appoint any person to act as secretary of the
meeting.
2<PAGE>
Section 2.7. Voting; Proxies. Each stockholder
entitled to vote at any meeting of stockholders shall be entitled
to one vote for each share of stock held by him or her which has
voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders or to express
consent or dissent to corporate action in writing without a
meeting may authorize another person or persons to act for him or
her by proxy, but not such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a
longer period. A duly executed proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is
coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy which is
not irrevocable by attending the meeting and voting in person or
by filing an instrument in writing revoking the proxy or another
duly executed proxy bearing a later date with the Secretary of
the corporation. All elections of directors shall be by written
ballot. Voting at meetings of stockholders need not be conducted
by inspectors of election unless the holders of a majority of the
outstanding shares of all classes of stock entitled to vote
thereon present in person or by proxy at such meeting shall so
determine. At all meetings of stockholders for the election of
directors a plurality of the votes cast shall be sufficient to
elect directors. All other elections and questions shall, unless
otherwise provided by law or by the Certificate of Incorporation
of these Bylaws, be decided by the vote of the holders of a
majority of the outstanding shares of stock entitled to vote
thereon present in person or by proxy at the meeting, expect that
procedural matters relating to the conduct of a meeting shall be
determined by a plurality of the votes cast at the meeting with
respect to such matter.
Section 2.8. Fixing Date for Determination of
Stockholders of Record. In order that the corporation may
determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be
more than sixty nor less than ten days before the date of such
meeting, nor more than ten days after the date upon which the
resolution fixing a record date for consent is adopted, nor than
sixty days prior to any other action. If no record date is
fixed: (1) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at
the close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting
is held; (2) the record date for determining stockholders
entitled to express consent to corporate action in writing
3<PAGE>
without a meeting, when no prior action by the Board of Directors
is necessary, shall be the first date on which a signed written
consent is delivered to the corporation; (3) the record date for
determining stockholders for any other purpose shall be at the
close of business on the date on which the Board of Directors
adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice or to vote at a meeting
of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
Section 2.9. List of Stockholders Entitled to
Vote. The Secretary shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the whole
time thereof and may be inspected by any stockholder who is
present. Upon the willful neglect or refusal of the directors to
produce such a list at any meeting for the election of directors,
they shall be ineligible for election to any office at such
meeting. The stock ledger shall be the only evidence as to who
are the stockholders entitled to examine the stock ledger, the
list of stockholders referred to in this Section or the books of
the corporation, or to vote in person or by proxy it any meeting
of stockholders.
Section 2.10. Business Conducted at Meetings of
Stockholders; Stockholder Proposals. Any action required by law
to be taken at any annual or special meeting of stockholders, or
any action which may be taken at any such annual or special
meeting, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at
a meeting at which all shares entitled to vote thereon were
present and voted and shall be delivered to the corporation.
Every written consent shall bear the date of signature and no
written consent shall be effective unless, within sixty days of
the earliest dated consent delivered to the corporation, written
consents signed by a sufficient number of holders to take action
are delivered to the corporation. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not
consented in writing.
4<PAGE>
ARTICLE III
Board of Directors
Section 3.1. Number; Qualifications. The authorized
number of directors shall not be less than one nor more than 10,
until changed by an amendment to this bylaw, duly adopted by the
vote or written consent of holders of a majority of the
outstanding shares entitled to vote. The exact number of
directors shall be three until changed, within the limits
specified, by the stockholders or the Board of Directors, as
provided in Section 8.6. Directors need not be stockholders.
Section 3.2 Election; Resignation; Removal; Vacancies.
The Board of Directors shall initially consist of the persons
elected a such by the incorporator and thereafter shall be
elected at the annual meeting of stockholders. Each director
shall be elected to serve for one year and until his or her
successor is elected and qualified. Any director may resign at
any time upon written notice to the corporation. Any director
may be removed, at any time, either with or without cause, by the
affirmative vote of the holders of a majority of the shares
entitled to vote for the election of directors. Any vacancy
occurring in the Board of Directors for any cause may be filled
by a majority of the remaining members of the Board of Directors,
although such majority is less than a quorum, or by a plurality
of the votes cast at a meeting of stockholders, and each director
so elected shall hold office until the expiration of the term of
office of the director whom he or she has replaced, and until his
or her successor is elected and qualified.
Section 3.3. Regular Meeting. Regular meetings of
the Board of Directors may be held at such places within or
without the State of Delaware and at such times as the Board of
Directors may from time to time determine, and if so determined
notices thereof need not be given.
Section 3.4. Special Meetings; Notice. Special
meetings of the Board of Directors may be held at any time or
place within or without the State of Delaware whenever called by
the Chairman of the Board, if any, by the Vice Chairman of the
Board, if any, by the President or by any two directors. Two
day's notice of special meeting shall be given by the person or
persons calling the meeting. Notice may be given in writing by
mail, telegram, telex, facsimile or personal delivery, or orally
in person or by telephone.
Section 3.5. Telephonic Meetings Permitted. Members
of the Board of Directors, or any committee designated by the
Board of Directors, may participate in a meeting of such Board or
committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation in such a meeting shall constitute presence in
person at such meeting.
5<PAGE>
Section 3.6. Quorum; Vote Required for Action. At
all meetings of the Board of Directors, a majority of the whole
Board of Directors shall constitute a quorum for the transaction
of business. The vote of a majority of the directors present at
a meeting at which a quorum is present shall be the act of the
Board of Directors, expect in cases in which the Certificate of
Incorporation or these Bylaws require the vote of a greater
number.
Section 3.7. Organization. Meetings of the Board of
Directors shall be presided over by the Chairman of the Board, if
any, or in his or her absence by the Vice Chairman of the Board,
if any, or in his or her absence by the President, or in their
absence by a chairman chosen at the meeting. The Secretary shall
act as secretary of the meeting, but in his or her absence the
chairman of the meeting may appoint any person to act as
secretary of the meeting.
Section 3.8. Action Without Meeting. Unless
otherwise restricted by the Certificate of Incorporation or these
Bylaws, any action required or permitted to be taken at any
meeting of the Board of Directors, or of any committee thereof,
may be taken without a meeting if all members of the Board of
Directors or such committee, as the case may be, consent thereto
in writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Director or committee.
ARTICLE IV
Committees
Section 4.1. Committees. The Board of Directors may,
by resolution passed by a majority of the whole Board of
Directors, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The
Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the
absence or disqualification of a member of the committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not he or she or they
constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in place of any such
absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors, shall have
and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee
shall have power or authority in reference to amending the
Certificate of Incorporation of the corporation, adopting an
agreement of merger or consolidation, recommending to the
6<PAGE>
stockholders the sale, lease or exchange of all or substantially
all of the corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of
dissolution, or amending these Bylaws; and, unless the resolution
expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of
stock.
Section 4.2. Committee Rules. Unless the Board of
Directors otherwise provides, each committee designated by the
Board may make, alter and repeal rules for the conduct of its
business. In the absence of such rules each committee shall
conduct its business in the same manner as the Board of Directors
conducts its business pursuant to Article III of these Bylaws.
ARTICLE V
Officers
Section 5.1 Executive Officers; Election;
Qualifications; Term of Office; Resignation; Removal; Vacancies.
The Board of Directors shall choose a President and Secretary,
and it may, if it so determines, choose a Chairman of the Board
and a Vice Chairman of the Board from among its members. The
Board of Directors may also choose one or more Vice Presidents,
one or more Assistant Secretaries, a Treasurer and one or more
Assistant Treasurers. Each such officer shall hold office until
the first meeting of the Board of Directors after the annual
meeting of stockholders next succeeding his or her election, and
until his or her successor is elected and qualified or until his
or her earlier resignation or removal. Any officer may resign at
any time upon written notice to the corporation. The Board of
Directors may remove any officer with or without cause at any
time, but such removal shall be without prejudice to the
contractual rights of such officer, if any, with the corporation.
Any number of officers may be held by the same person. Any
vacancy occurring in any office of the corporation by death,
resignation, removal or otherwise may be filled for the unexpired
portion of the term by the Board of Directors at any regular or
special meeting.
Section 5.2. Other officers and Agents. The Board of
Directors may appoint such other officers and agents as it may
deem advisable, who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
Section 5.3. Chairman. The Chairman of the Board of
Directors, if there be one shall preside at all meetings of the
stockholders, if present thereat, and shall preside at all
meetings of the Board of Directors and he or she shall have and
perform, such other duties as from time to time may be assigned
to him or her by the Board of Directors.
7<PAGE>
Section 5.4. Vice Chairman. The Vice Chairman of the
Board of Directors, if there be one, shall, in the absence of the
Chairman of the Board of Directors, preside at all meetings of
the Board of Directors and he or she shall have and perform such
other duties as from time to time may be assigned to him or her
by the Board of Directors. In addition, the Vice Chairman shall,
in the absence of the Chairman, preside at all meetings of the
stockholders if present thereat.
Section 5.5. President. The President shall have and
perform such other powers and duties as may be assigned to him or
her by the Board of Directors, the Chairman, or the Vice
Chairman. The President shall be the Chief Executive Officer of
the corporation and shall have the general powers and duties of
supervision and management as generally pertain to the office of
Chief Executive and as are usually vested in the chief executive
officer of a corporation, including general supervision,
direction, and control of the business of the corporation. In
addition, the President shall, in the absence of the Chairman and
the Vice Chairman, preside at all meetings of the stockholders if
present thereat, and, in the absence of the Chairman and Vice
Chairman of the Board of Directors, at all meetings of the Board
of Directors.
Section 5.6. Vice President. Each Vice President
shall have such powers and shall have and perform such duties as
shall be assigned to him or her by the Board of Directors. In
the absence or disability of the President, the Vice Presidents,
in order of their rank as fixed by the Board of Directors, or, if
not ranked, a Vice President designated by the Board of
Directors, shall perform all the duties of the President, when so
acting shall have all the powers of, and be subject to all the
restrictions upon the President.
Section 5.7. Treasurer. The Treasurer shall be the
Chief Financial Officer of the corporation and have or supervise
the custody of the corporate funds and securities and shall keep,
or cause to be kept, full and accurate account of receipts and
disbursements in books belonging to the corporation. He or she
shall deposit, or cause to be deposited, all monies and other
valuables in the name and to the credit of the corporation in
such depositaries as may be designated by the Board of Directors.
The Treasurer shall supervise disbursement of funds of the
corporation as may be ordered by the Board of Directors, the
Chairman, Vice Chairman, or the President, shall render to the
President and Board of Directors at the regular meetings of the
Board of Directors, or whenever they may request it, an account
of all his or her transactions as Treasurer and of the financial
condition of the corporation and shall have and perform such
other powers and duties as may from time to time be assigned to
him or her by the Board of Directors.
8<PAGE>
Section 5.8. Secretary. The Secretary shall give, or
cause to be given, notice of all meetings of stockholders and
directors, and all other notices required by law or by these
Bylaws. He or she shall record, or cause to be recorded, minutes
of the meetings of the stockholders, the Board of Directors and
committees of the Board of Directors in minute books to be kept
by him or her for that purpose, and shall perform such other
duties as may be assigned to him or her by the Board of
Directors. He or she shall keep, or cause to be kept, at the
principal executive office or at the office of the corporation's
transfer agent or registrar, a share register or duplicate share
register showing the names of all stockholders and their
addresses, the number and classes of shares held by each, the
number and date of certificates issued for the same, and the
number and date of cancellation of every certificate surrendered
for cancellation. He or she shall have the custody of the seal
of the corporation and shall affix the same to all instruments
requiring it, when authorized by the Board of Directors, the
Chairman, the Vice Chairman, or the President, and attest the
same.
Section 5.9. Assistant Treasurers and Assistant
Secretaries. Assistant Treasurers and Assistant Secretaries, if
any, shall be elected and shall have such powers and shall
perform such duties as shall be assigned to them, respectively,
by the Board of Directors.
ARTICLE VI
Stock
Section 6.1. Certificates. Every holder of stock
shall be entitled to have a certificate signed by or in the name
of the corporation by the Chairman or Vice Chairman of the Board
of Directors, if any, or the President or a Vice President, and
by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, of the corporation, representing the
number of shares registered. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is
issued, it may be issued by the corporation with the same effect
as if he or she were such officer, transfer agent or registrar at
the date of issue.
Section 6.2. Transfer of Shares. The shares of stock
of the corporation shall be transferable only upon its books by
the holders thereof in person or by their duly authorized
attorneys or legal representatives, and upon such transfer the
old certificates shall be surrendered to the corporation by the
delivery thereof to the person in charge of the stock transfer
books and ledgers, or to such other person as the Board of
9<PAGE>
Directors may designate, by whom they shall be cancelled, and new
certificates shall thereupon be issued. A record shall be made
of each transfer.
Section 6.3. Lost Stolen or Destroyed Stock
Certificates; Issuance of New Certificates. The corporation may
issue a new certificate of stock in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the corporation may require the owner of the lost,
stolen or destroyed certificate, or his or her legal
representative, to give the corporation a bond sufficient to
indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VII
Indemnification of Directors and Officers
Section 7.1. Right to Indemnification. Each person
who was or is threatened to be made a party to or is involved in
any action, suit, or proceeding, whether civil, criminal,
administrative or investigative ("proceeding"), by reason of the
fact that he or she or a person of whom he or she is the legal
representative, is or was a director, officer, or employee of the
corporation or is or was serving at the request of the
corporation as a director, officer, or employee of another
corporation, or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in
an official capacity as a director, officer, or employee or in
any other capacity while serving as a director, officer, or
employee, shall be indemnified and held harmless by the
corporation to the fullest extent authorized by Delaware Law, as
the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendments
permits the corporation to provide broader indemnification rights
than said Law permitted the corporation to provide prior to such
amendment) against all expenses, liability, loss (including
attorneys' fees, judgements fines, ERISA excise taxes, or
penalties), amounts paid or to be paid in settlement and amounts
expended in seeking indemnification granted to such person under
applicable law, these Bylaws or any agreement with the
corporation reasonably incurred or suffered by such person in
connection therewith, and such indemnification shall continue as
to a person who has ceased to be a director, officer, or employee
and shall inure to the benefit of his or her heirs, executors,
and administrators; provided, however, that, except as provided
in Section 7.2 of this Article VII, the corporation shall
indemnify any such person seeking indemnity in connection with an
action, suit, or proceeding (or part thereof) initiated by such
person only if such action, suit or proceeding (or part thereof)
was authorized by the Board of Directors of the corporation.
10<PAGE>
Such right shall be a contract right and shall include the right
to be paid by the corporation expenses incurred in defendng any
such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law then so
requires, the payment of such expenses incurred by a director or
officer of the corporation in his or her capacity as a director
or officer (and not in any other capacity in which service was or
is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit
plan) in advance of the final disposition of such proceeding,
shall be made only upon delivery to the corporation of an
undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it should be determined
ultimately that such director or officer is not entitled to be
indemnified under this Section or otherwise.
Section 7.2. Right of Claimant to Bring Suit. If a
claim for indemnification under Section 7.1 is not paid in full
by the corporation within twenty days after a written claim has
been received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the
unpaid amount of the claim and, if such suit is not frivolous or
brought in bad faith, the claimant shall be entitled to be paid
also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding
in advance of its final disposition where the required
undertaking, if any, has been tendered to this corporation) that
the claimant has not met the standards of conduct which make it
permissible under the Delaware General Corporation Law of the
corporation to indemnify the claimant for the amount claimed, but
the burden of proving such defense shall be on the corporation.
Neither the failure of the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard
of conduct set forth in the Delaware Corporation Law, nor an
actual determination by the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that
the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that
claimant has not met the applicable standard of conduct.
Section 7.3. Non-Exclusivity of Rights. The rights
conferred on any person in Sections 7.1 and 7.2 shall not be
exclusive of any other right which such persons may have or
hereafter acquire under any statute, provision of the Certificate
of Incorporation, these Bylaws, agreement, vote of stockholders
or disinterested directors, or otherwise.
Section 7.4. Insurance. The corporation shall
maintain insurance to the extent reasonably available, as its
expense, to protect itself any such director, officer, employee
11<PAGE>
or agent of the corporation or another corporation, partnership,
joint venture, trust or other enterprise against any such
expense, liability or loss, whether or not the corporation would
have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
Section 7.5. Effect of Amendment. Any amendment,
repeal, or modification or any provision of this Article VI by
the stockholders and the directors of the corporation shall not
adversely affect any right or protection of a director or officer
of the corporation existing at the time of such amendment, repeal
or modification.
ARTICLE VIII
Miscellaneous
Section 8.1. Fiscal Year. The fiscal year of the
corporation shall be determined by resolution of the Board of
Directors.
Section 8.2. Seal. The corporate seal shall have the
name of the corporation inscribed thereon and shall be in such
form as may be approved from time to time by the Board of
Directors.
Section 8.3. Waiver of Notice of Meetings of
Stockholders, Directors and Committees. Any written waiver of
notice, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends
a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business
to be transacted at, nor the purpose of any regular or special
meeting of the stockholders, directors, or members of a committee
of directors need be specified in any written waiver of notice.
Section 8.4. Interested Directors. No contract or
transaction between the corporation and one or more of its
directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in
which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or
transaction, or solely because his, her or their votes are
counted for such purpose, if: (1) the material facts as to his or
her relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee in good
12<PAGE>
faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (2) the
material facts as to his or her relationship or interest and as
to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or (3) the contract or transaction is fair as to
the corporation as of the time it is authorized, approved or
ratified by the Board of Directors, a committee thereof, or the
stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or
transaction.
Section 8.5. Form of Records. Any records maintained
by the corporation in the regular course of its business,
including its stock ledger, books of account, and minute books,
may be kept on, or be in the form of, punch cards, magnetic tape,
photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into
clearly legible form within a reasonable time. The corporation
shall so convert any records so kept upon the request of any
person entitled to inspect the same.
Section 8.6. Amendment of Bylaws. These bylaws may
be altered, amended or repealed, and new bylaws made, by the
stockholders by the vote of the holders of not less than a
majority of the outstanding shares entitled to vote, or by the
Board of Directors.
13<PAGE>
Exhibit B-82
BY LAWS
OF
EI SELKIRK, INC.
(a Delaware Corporation)
__________________
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK. Certificates
representing stock in the corporation shall be signed by, or in
the name of, the corporation by the Chairman or Vice Chairman of
the Board of Directors, if any, or by the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the corporation. Any or
all of the signatures on any such certificate may be facsimile.
In case any officer, transfer agent, or registrar who has signed
or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent, or
registrar before such certificate is issued, it may be issued by
the corporation with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue.
Whenever the corporation shall be authorized to issue
more than one class of stock or more than one series of any class
of stock, and whenever the corporation shall issue any shares of
its stock as partly paid stock, the certificates representing
shares of any such class or series or of any such partly paid
stock shall set forth thereon the statements prescribed by the
General Corporation Law. Any restrictions on the transfer or
registration of transfer of any shares of stock of any class or
series shall be noted conspicuously on the certificate
representing such shares.
The corporation may issue a new certificate of stock or
uncertified shares in place of any certificate theretofore issued
by it, alleged to have been lost, stolen, or destroyed, and the
Board of Directors may require the owner of the lost, stolen, or
destroyed certificate, or his legal representative, to give the
corporation a bond sufficient to indemnify the corporation
against any claim that may be made against it on account of the
alleged loss, theft, or destruction of any such certificate or
the issuance of any such new certificate or uncertificated
shares.<PAGE>
2. UNCERTIFICATED SHARES. Subject to any conditions
imposed by the General Corporation Law, the Board of Directors of
the corporation may provide by resolution or resolutions that
some or all of any or all classes or series of the stock of the
corporation shall be uncertificated shares. Within a reasonable
time after the issuance or transfer of any uncertificated shares,
the corporation shall send to the registered owner thereof any
written notice prescribed by the General Corporation Law.
3. FRACTIONAL SHARE INTERESTS. The corporation may,
but shall not be required to, issue fractions of a share. If the
corporation does not issue fractions of a share, it shall
(1) arrange for the disposition of fractional interests by those
entitled thereto, (2) pay in cash the fair value of fractions of
a share as of the time when those entitled to receive such
fractions are determined, or (3) issue scrip or warrants in
registered form (either represented by a certificate or
uncertificated) or bearer form (represented by a certificate)
which shall entitle the holder to receive a full share upon the
surrender of such scrip or warrants aggregating a full share. A
certificate for a fractional share or an uncertificated
fractional share shall, by scrip or warrants shall not unless
otherwise provided therein, entitle the holder to exercise voting
rights, to receive dividends thereon, and to participate in any
of the assets of the corporation in the event of liquidation.
The Board of Directors may cause scrip or warrants to be issued
subject to the conditions that they shall become void if not
exchanged for certificates representing the full shares or
uncertificated full shares before a specified date, or subject to
the conditions that the shares for which scrip or warrants are
exchangeable may be sold by the corporation and the proceeds
thereof distributed to the holders of scrip or warrants, or
subject to any other conditions which the Board of Directors may
impose.
4. STOCK TRANSFERS. Upon compliance with provisions
restricting the transfer or registration of transfer of shares of
stock, if any, transfers or registration of transfers of shares
of stock of the corporation shall be made only on the stock
ledger of the corporation by the registered holder thereof, or by
his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary of the corporation or with
a transfer agent or a registrar, if any, and, in the case of
shares represented by certificates, on surrender of the
certificate or certificates for such shares of stock properly
endorsed and the payment of all taxes due thereon.
5. RECORD DATE FOR STOCKHOLDERS. In order that the
corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment
thereof, the Board of Directors may fix a record date, which <PAGE>
record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than ten
days before the date of such meeting. If no record date is fixed
by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next
preceding the day on which the meeting is held. A determination
of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting. In order that the
corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which date shall not be
more than ten days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. If
no record date has been fixed by the Board of Directors, the
record date for determining the stockholders entitled to consent
to corporate action in writing without a meeting, when no prior
action by the Board of Directors is required by the General
Corporation Law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be
taken is delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place
of business, or an officer or agent of the corporation having
custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the corporation's
registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed
by the Board of Directors and prior action by the Board of
Directors is required by the General Corporation Law, the record
date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the
close of business on the day on which the Board of Directors
adopts the resolution taking such prior action. In order that
the corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or
allotment of any rights in respect of any change, conversion, or
exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall not be more
than sixty days prior to such action. If no record date is
fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.<PAGE>
6. MEANING OF CERTAIN TERMS. As used herein in
respect of the right to notice of a meeting of stockholders or a
waiver thereof or to participate or vote thereat or to consent or
dissent in writing in lieu of a meeting, as the case may be, the
term "share" or "shares", or "share of stock" or "shares of
stock" or "stockholder" or "stockholders" refers to an
outstanding share or shares of stock and to a holder or holders
of record of outstanding shares of stock of any class upon which
or upon whom the certificate of incorporation confers such rights
where there are two or more classes or series of shares of stock
or upon which or upon whom the General Corporation Law confers
such rights notwithstanding that the certificate of incorporation
may provide for more than one class or series of shares of stock,
one or more of which are limited or denied such rights
thereunder; provided, however, that no such right shall vest in
the event of an increase or a decrease in the authorized number
of shares of stock of any class or series which is otherwise
denied voting rights under the provisions of the certificate of
incorporation, except as any provision of law may otherwise
require.
7. STOCKHOLDERS MEETINGS.
-TIME. The annual meeting shall be held on the date
and at the time fixed, from time to time, by the directors,
provided, that the first annual meeting shall be held on a date
within thirteen months after the organization of the corporation,
and each successive annual meeting shall be held on a date within
thirteen months after the date of the preceding annual meeting.
A special meeting shall be held on the date and at the time fixed
by the directors.
-PLACE. Annual meetings and special meetings shall be
held at such place, within or without the State of Delaware, as
the directors may, from time to time, fix. Whenever the
directors shall fail to fix such place, the meeting shall be held
at the registered office of the corporation in the State of
Delaware.
-CALL. Annual meetings and special meetings may be
called by the directors or by any officer instructed by the
directors to call the meeting.
-NOTICE OR WAIVER OF NOTICE. Written notice of all
meetings shall be given, stating the place, date, and hour of the
meeting and stating the place within the city or other
municipality or community at which the list of stockholders of
the corporation may be examined. The notice of an annual meeting
shall state that the meeting is called for the election of
directors and for the transaction of other business which may
properly come before the meeting and shall (if any other action
which could be taken at a special meeting is to be taken at such <PAGE>
annual meeting) state the purpose or purposes. The notice of a
special meeting shall in all instances state the purpose or
purposes for which the meeting is called. The notice of any
meeting shall also include, or be accompanied by, any additional
statements, information, or documents prescribed by the General
Corporation Law. Except as otherwise provided by the General
Corporation Law, a copy of the notice of any meeting shall be
given, personally or by mail, not less than ten days nor more
than sixty days before the date of the meeting, unless the lapse
of the prescribed period of time shall have been waived, and
directed to each stockholder at his record address or at such
other address which he may have furnished by request in writing
to the Secretary of the corporation. Notice by mail shall be
deemed to be given when deposited, with postage thereon prepaid,
in the United States Mail. If a meeting is adjourned to another
time, not more than thirty days hence, and/or to another place,
and if an announcement of the adjourned time and/or place is made
at the meeting, it shall not be necessary to give notice of the
adjourned meeting unless the directors, after adjournment, fix a
new record date for the adjourned meeting. Notice need not be
given to any stockholder who submits a written waiver of notice
signed by him before or after the time stated therein.
Attendance of a stockholder at a meeting of stockholders shall
constitute a waiver of notice of such meeting, except when the
stockholder attends the meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders
need be specified in any written waiver of notice.
-STOCKHOLDER LIST. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least
ten days before every meeting of stockholders a complete list of
the stockholders, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city
or other municipality or community where the meeting is to be
held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and
may be inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list required by this
section or the books of the corporation, or to vote at any
meeting of stockholders.<PAGE>
-CONDUCT OF MEETING. Meetings of the stockholders
shall be presided over by one of the following officers in the
order of seniority and if present and acting - the Chairman of
the Board, if any, the Vice Chairman of the Board, if any, the
President, a Vice President, or, if none of the foregoing is in
office and present and acting, by a chairman to be chosen by the
stockholders. The Secretary of the corporation, or in his
absence, an Assistant Secretary, shall act as secretary of every
meeting, but if neither the Secretary nor an Assistant Secretary
is present, the Chairman of the meeting shall appoint a secretary
of the meeting.
-PROXY REPRESENTATION. Every stockholder may
authorize another person or persons to act for him by proxy in
all matters in which a stockholder is entitled to participate,
whether by waiving notice of any meeting, voting or participating
at a meeting, or expressing consent or dissent without a meeting.
Every proxy must be signed by the stockholder or by his attorney-
in-fact. No proxy shall be voted or acted upon after three years
from its date unless such proxy provides for a longer period. A
duly executed proxy shall be irrevocable if it states that it is
irrevocable and, if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A
proxy may be made irrevocable regardless of whether the interest
with which it is coupled is an interest in the stock itself or an
interest in the corporation generally.
-INSPECTORS. The directors, in advance of any
meeting, may, but need not, appoint one or more inspectors of
election to act at the meeting or any adjournment thereof. If an
inspector or inspectors are not appointed, the person presiding
at the meeting may, but need not, appoint one or more inspectors.
In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by
the directors in advance of the meeting or at the meeting by the
person presiding thereat. Each inspector, if any, before
entering upon the discharge of his duties, shall take and sign an
oath faithfully to execute the duties of inspector at such
meeting with strict impartiality and according to the best of his
ability. The inspectors, if any, shall determine the number of
shares of stock outstanding and voting power of each, the shares
of stock represented at the meeting, the existence of a quorum,
the validity and effect of proxies, and shall receive votes,
ballots, or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and
tabulate all votes, ballots, or consents, determine the result,
and do such acts as are proper to conduct the election or vote
with fairness to all stockholders. On request of the person
presiding at the meeting, the inspector or inspectors, if any,
shall make a report in writing of any challenge, question or
matter determined by him or them and execute a certificate or any
fact found by him or them.<PAGE>
-QUORUM. The holders of a majority of the outstanding
shares of stock shall constitute a quorum at a meeting of
stockholders for the transaction of any business. The
stockholders present may adjourn the meeting despite the absence
of a quorum.
-VOTING. Each share of stock shall entitle the holder
thereof to one vote. Directors shall be elected by a plurality
of the votes of the shares present in person or represented by
proxy at the meeting and entitled to vote on the election of
directors. Any other action shall be authorized by a majority of
the votes cast except where the General Corporation Law
prescribes a different percentage of votes and/or a different
exercise of voting power, and except as may be otherwise
prescribed by the provisions of the certificate of incorporation
and these Bylaws. In the election of directors, and for any
other action, voting need not be by ballot.
8. STOCKHOLDERS ACTION WITHOUT MEETING. Any action
required by the General Corporation Law to be taken at any annual
or special meeting of stockholders, or any action which may be
taken at any annual or special meeting of stockholders, may be
taken without a meeting, without prior notice and without a vote,
if a consent in writing, setting forth the action so taken, shall
be signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice
of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those
stockholders who have not consented in writing. Action taken
pursuant to this paragraph shall be subject to the provisions of
Section 228 of the General Corporation Law.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The business and
affairs of the corporation shall be managed by or under the
direction of the Board of Directors of the corporation. The
Board of Directors shall have the authority to fix the
compensation of the members thereof. The use of the phrase
"whole board" herein refers to the total number of directors
which the corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not
be a stockholder, a citizen of the United States, or a resident
of the State of Delaware. The initial Board of Directors shall
consist of one person. Such number may be changed from time to
time by action of the stockholders or of the directors. <PAGE>
3. ELECTION AND TERM. The first Board of Directors,
unless the members thereof shall have been named in the
certificate of incorporation, shall be elected by the
incorporator or incorporators and shall hold office until the
first annual meeting of stockholders and until their successors
are elected and qualified or until their earlier resignation or
removal. Any director may resign at any time upon written notice
to the corporation. Thereafter directors who are elected at an
annual meeting of stockholders, and directors who are elected in
the interim to fill vacancies and newly created directorships,
shall hold office until the next annual meeting of stockholders
and until their successors are elected and qualified or until
their earlier resignation or removal. Except as the General
Corporation Law may otherwise require, in the interim between
annual meetings of stockholders or of special meetings of
stockholders called for the election of directors and/or for the
removal of one or more directors and for the filling of any
vacancy in that connection, newly created directorships and any
vacancies in the Board of Directors including unfilled vacancies
resulting from the removal of directors for cause or without
cause, may be filled by the vote of a majority of the remaining
directors then in office, although less than a quorum, or by the
sole remaining director.
4. MEETINGS.
-TIME. Meeting shall be held at such time as the
Board shall fix, except that the first meeting of a newly elected
Board shall be held as soon after its election as the directors
may conveniently assemble.
-PLACE. Meeting shall be held at such place within or
without the State of Delaware as shall be fixed by the Board.
-CALL. No call shall be required for regular
meetings for which the time and place have been fixed. Special
meetings may be called by or at the direction of the Chairman of
the Board, if any, of the Vice Chairman of the Board, if any, of
the President, or of a majority of the directors in office. No
notice shall be required for regular meetings for which the time
and place have been fixed. Written, oral or any other mode of
notice of the time and place shall be given for special meetings
in sufficient time for the convenient assembly of the directors
thereat. Notice need not be given to any director or to any
member of a committee of directors who submits a written waiver
of notice signed by him before or after the time stated therein.
Attendance of any such person at a meeting shall constitute a
waiver of notice of such meeting, except when he attends a
meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business<PAGE>
to be transacted at, nor the purpose of, any regular or special
meeting of the directors need be specified in any written waiver
of notice.
-QUORUM AND ACTION. A majority of the whole Board
shall constitute a quorum except when a vacancy or vacancies
prevents such majority, whereupon a majority of the directors in
office shall constitute a quorum, provided, that such majority
shall constitute at least one-third of the whole Board. A
majority of the directors present, whether or not a quorum is
present, may adjourn a meeting to another time and place.
Except as herein provided and except as otherwise provided by the
General Corporation Law, the vote of the majority of the
directors present at a meeting at which a quorum is present shall
be the act of the Board. The quorum and voting provisions herein
stated shall not be construed as conflicting with any provisions
of the General Corporation Law and these Bylaws which govern a
meeting of directors held to fill vacancies and newly created
directorships in the Board or action of disinterested directors.
Any member or members of the Board of Directors or of
any committee designated by the Board, may participate in a
meeting of the Board, or any such committee, as the case may be,
by means of conference telephone or similar communication
equipment by means of which all persons participating in the
meeting can hear each other.
-CHAIRMAN OF THE MEETING. The Chairman of the Board,
if any, and if present and acting, shall preside at all meetings.
Otherwise, the Vice Chairman of the Board, if any, and if present
and acting, or the President, if present and acting, or any other
director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS. Except as may otherwise be
provided by the General Corporation Law, any director or the
entire Board of Directors may be removed, with or without cause,
by the holders of a majority of the shares then entitled to vote
at an election of directors.
6. COMMITTEES. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one
or more committees, each committee to consist of one or more of
the directors of the corporation. The Board may designate one or
more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of any member of
any such committee or committees, the member or members thereof
present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in
the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board,<PAGE>
shall have and may exercise the powers and authority of the Board
of Directors in the management of the business and affairs of the
corporation with the exception of any authority the delegation of
which is prohibited by Section 141 of the General Corporation
Law, and may authorize the seal of the corporation to be affixed
to all papers which may require it.
7. WRITTEN ACTION. Any action required or permitted
to be taken at any meeting of the Board of Directors or any
committee thereof may be taken without a meeting if all members
of the Board or committee, as the case may be, consent thereto in
writing, and writing or writings are filed with the minutes of
proceedings of the Board or committee.
ARTICLE III
OFFICERS
The officers of the corporation shall consist of a
President, a Secretary, a Treasurer, and, if deemed necessary,
expedient, or desirable by the Board of Directors, a Chairman of
the Board, a Vice Chairman of the Board, an Executive Vice
President, one or more other Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, and such
other officers with such titles as the resolution of the Board of
Directors choosing them shall designate. Except as may otherwise
be provided in the resolution of the Board of Directors choosing
him, no officer other than the Chairman or Vice Chairman of the
Board, if any, need be a director. Any number of offices may be
held by the same person, as the directors may determine.
Unless otherwise provided in the resolution choosing
him, each officer shall be chosen for a term which shall continue
until the meeting of the Board of Directors following the next
annual meeting of stockholders and until his successor shall have
been chosen and qualified.
All officers of the corporation shall have such
authority and perform such duties in the management and operation
of the corporation as shall be prescribed in the resolutions of
the Board of Directors designating and choosing such officers and
prescribing their authority and duties, and shall have such
additional authority and duties as are incident to their office
except to the extent that such resolutions may be inconsistent
therewith. The Secretary or an Assistant Secretary of the
corporation shall record all of the proceedings of all meetings
and actions in writing of stockholders, directors, and committees
of directors, and shall exercise such additional authority and
perform such additional duties as the Board shall assign to him.
Any officer may be removed, with or without cause, by the Board
of Directors. Any vacancy in any office may be filled by the
Board of Directors.<PAGE>
ARTICLE IV
INDEMNIFICATION
(a) The corporation may indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason
of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
(b) The corporation may indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.<PAGE>
(c) To the extent that a director, officer, employee
or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred
to in subsections (a) and (b) of this Article, or in defense of
any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b)
of this Article (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in subsections
(a) and (b) of this Article. Such determination shall be made
(1) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit
or proceeding, or (2) if such a quorum is not obtainable, or,
even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or
(3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be
paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this Article.
Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of
this Article shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding such office.
(g) The corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability
under this Article.<PAGE>
(h) For purposes of this Article, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall
stand in the same position under this section with respect to the
resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had
continued.
(i) For purposes of this Article, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving
at the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to
in this Article.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article shall, unless
otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE V
CORPORATE SEAL
The corporate seal shall be in such form as the Board
of Directors shall prescribe.
ARTICLE VI
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and
shall be subject to change, by the Board of Directors.<PAGE>
ARTICLE VII
CONTROL OVER BYLAWS
Subject to the provisions of the certificate of
incorporation and the provisions of the General Corporation Law,
the power to amend, alter, or repeal these Bylaws and to adopt
new Bylaws may be exercised by the Board of Directors or by the
stockholders.
<PAGE>
Exhibit B-83
(PRIVATE)
ARTICLES OF ASSOCIATION
OF
2322133 NOVA SCOTIA
LIMITED
DALEY, BLACK & MOREIRA
Barristers & Solicitors
Halifax, Nova Scotia<PAGE>
INDEX TO ARTICLES OF ASSOCIATION
Article No. Page
1. Interpretation....................................... 1
2. Table "A" not to apply .............................. 2
3. Pre-Incorporation Agreement ......................... 2
4. Directors - powers to pay for expenses of
incorporation ...................................... 2
5. May commence business at once ....................... 2
SHARES
6. Shares to be under the control of Directors ......... 2
7. May pay commission on subscription ................ 2
8. May make difference in amount of calls, etc. ........ 2
9. Instalments on Shares, by whom payable .............. 2
10. Joint holders of Shares not to exceed three ......... 2
11. Joint holders, liable severally as well as jointly
on Shares ............................................ 3
12. Joint holders - death - survivor only recognized ..... 3
13. Registered holder deemed to be absolute owner of
Shares, equities of others do not affect ............. 3
CLASSES OF SHARES
14. Shares may be issued with preferred, deferred or
other rights ......................................... 3
CERTIFICATES
15. Share Certificates - how signed ..................... 3
16. Members entitled to Share Certificate or
Certificates ....................................... 3
17. Replacement of damaged or destroyed Certificates .... 3
18. Charge for Certificates other than the first ........ 4
19. More than one holder of a Share - Certificate
issued to first name on Register ..................... 4
CALLS
20. Calls, when, how and by whom made ................... 4
21. Calls, when deemed to have been made ................ 4
22. Notice required for calls ........................... 4
23. Interest payable on amount of a call in arrears ..... 4
24. Resolution making call - matters for which Resolution
is conclusive proof ............................... 4
25. Calls may be paid in advance and interest paid on
such advances ........................................ 5
FORFEITURE OF SHARES
26. Failure to pay calls or instalments - notice
requiring payment served ............................. 5<PAGE>
27. Notice requiring payment - what it is to contain .... 5
28. Failure to comply with notice; forfeiture by
Resolution of Board of Directors ..................... 5
29. Notice of such Resolution, to whom given ............ 5
30. Forfeited Share property of Company ................. 6
31. Directors may annul forfeiture ...................... 6
32. Members still liable for amounts due, notwithstanding
forfeiture .......................................... 6
33. Certificate of forfeiture - conclusive proof ........ 6
LIEN ON SHARES
34. Company has lien on Shares (other than fully paid up)
for any amount owing the Company - includes
dividends ........................................... 6
35. May sell Shares to enforce such lien, provided notice
given .............................................. 6
36. Excess of such sale paid to member .................. 7
VALIDITY OF SALES
37. Purchaser at sale after forfeiture or to enforce lien
entitled to presume validity of sale ................ 7
TRANSFER OF SHARES
38. Transfer, who signs - not effective until registered 7
39. Form of transfer .................................... 7
40. May refuse to register transfer in certain cases .... 7
41. Transfer and Share Certificates to be left at office 8
42. Fee charged for transfer .......................... 8
43. Instrument of transfer to be kept by Company ........ 8
44. Transfer books and Register may be closed for 30
days - notice to be given ............................ 8
TRANSMISSION OF SHARES
45. Executors or Administrators of deceased member only
recognized ......................................... 9
46. Transmission clause - transfer of Shares to holder
from a deceased, bankrupt, insolvent, etc. member .... 9
SHARE WARRANTS
47. Share Warrants may be issued for fully paid up
Shares .............................................. 9<PAGE>
48. Terms and conditions of issue of Share Warrants
determined by Directors ............................ 9
INCREASE AND REDUCTION OF CAPITAL
49. May increase Capital at General Meeting by creation
of new Shares ..................................... 10
50. Such Shares may be issued on such terms and
conditions as General Meeting determines ............. 10
51. May determine when new Shares to be offered to
existing members or any other provisions respecting
their issue .......................................... 10
52. New Capital to be considered part of original
Capital and subject to Articles ...................... 10
53. May reduce Capital and Capital Redemption Reserve
Fund ............................................. 10
54. Provision for (a) consolidation and division; (b)
conversion; (c) exchange and (d) cancellation of
Shares ............................................. 10
55. Provision for (a) subdivision of Shares; (b)
conversion of unissued Shares into redeemable
Preference Shares; (c) issue of Shares without
nominal or par value; (d) conversion of nominal
or par value Shares into Shares without nominal
or par value; (e) conversion of Shares without
nominal or par value into Shares with nominal or
par value ............................................ 11
56. May redeem or purchase certain Common Shares and
Preference Shares and provide Sinking Fund ........... 12
INTEREST ON SHARE CAPITAL
57. May pay Interest on Capital raised for certain
construction purposes ............................... 12
MODIFICATION OF RIGHTS OF SHAREHOLDERS
58. May alter rights of classes of Shareholders ......... 12
SURRENDER OF SHARES
59. Surrender of Shares may be accepted on compromise ... 13
BORROWING POWERS
60. Directors may:
(a) Borrow money for the purposes of Company ........ 13
(b) Secure repayment by Mortgage, Bonds, etc. ....... 13
(c) Sign notes, cheques, bills, acceptances, etc.,
as evidence of money borrowed ................... 13<PAGE>
(d) Pledge debentures as security for loans ........ 13
61. Bonds, etc. may be made assignable free from any
equities .......................................... 14
62. Bonds, etc. may be issued at discount or premium
and with other special privileges .................... 14
MEETINGS
63. First General Meeting within eighteen months ........ 14
64. General Meetings at least once every year ........... 14
65. Definition of "Ordinary" and "Extraordinary"
Meetings .......................................... 14
66. Directors may call Special Meeting upon receipt
of a requisition ..................................... 14
67. What requisition must contain ..................... 14
68. If Directors fail to call Special Meetings,
requisitionists may ............................... 14
69. If, after Special Meeting, Confirmatory Meeting
required, Directors shall call ....................... 14
70. Requisitionists' Meeting called as any other
Meeting ........................................... 15
71. Seven days' notice for any Meeting ................. 15
72. In case of Special Resolution - two Meetings may
be called by same Notice ............................. 15
73. Omission or non-receipt of any Notice no effect
on any Resolution passed at Meeting ................ 15
PROCEEDINGS AT GENERAL MEETINGS
74. Business to be considered at General Meeting ....... 15
75. Quorum at General Meeting ........................... 15
76. No business transacted unless quorum present ...... 16
77. President may be Chairman .......................... 16
78. If no quorum in one-half hour, adjourn for one week . 16
79. Voting - how votes counted, Chairman has casting
vote ................................................ 16
80. Voting to be by show of hand - poll to be taken
if demanded .......................................... 16
81. Manner in which poll is to be taken; demand may
be withdrawn; Declaration by Chairman as to result
of vote conclusive ................................... 17
82. Meeting may be adjourned, adjourned Meeting only
to consider unfinished business ..................... 17
83. Poll demanded on question of adjournment or
election of chairman shall be taken before
Meeting adjourned ................................. 17
84. Demand of poll not to prevent continuance of
Meeting .............................................. 17<PAGE>
VOTES OF MEMBERS
85. Voting, those entitled to vote and number of votes
each entitled to .................................. 17
86. Persons entitled to vote under transmission clause .. 17
87. Joint holders, one may vote ......................... 18
88. Votes may be given personally or by proxy ........... 18
89. Instrument of proxy, what it is to contain ......... 18
90. Members of unsound mind vote by Guardian ............ 18
91. Instrument of proxy or copy filed at Company Office . 18
92. Vote by proxy valid even if authority revoked ....... 18
93. Form for instrument of proxy ........................ 19
94. Not entitled to vote if call or other liability
due on Share ......................................... 19
95. Resolutions passed by Directors and ratified by
three-fifths of members valid as if passed at
General Meeting - certain Resolutions excepted ....... 19
96. Shareholders' Resolution ........................... 19
DIRECTORS
97. Not less than one Director ......................... 20
98. Subscribers to Memorandum to be first Directors ..... 20
99. Directors may fill vacancies on Board; but
Directors not to exceed twelve ....................... 20
100. Qualification of Directors ........................ 20
101. Director may resign on one month's notice ........... 20
102. Provisions for remuneration of Directors ............ 20
103. Directors may act notwithstanding vacancy ........ 20
104. Directors may hold other office with Company ........ 20
105. Director's office ipso facto vacated if he,-
(a) is bankrupt ................................... 21
(b) is lunatic ..................................... 21
(c) ceases to hold required Shares ................. 21
(d) resigns ...................................... 21
(e) is removed by Resolution ........................ 21
106. Directors may contract with Company but must
declare interest .................................... 21
ELECTION OF DIRECTORS
107. All Directors to retire at every General Meeting ... 21
108. Retiring Directors eligible for re-election ........ 22
109. Vacancies among Directors to be filled at each
General Meeting ...................................... 22
110. If Directors not elected at General Meeting retiring
Directors continue in office ...................... 22
111. General Meeting may increase or decrease number of
Directors ........................................ 22<PAGE>
112. Removal of Director and appointment of successor .... 22
THE PRESIDENT AND VICE-PRESIDENT
113. Directors shall elect a President; powers and
duties of ............................................ 22
114. Directors may elect Vice-Presidents, one of whom may act
in absence of President ............................. 22
MANAGING DIRECTOR
115. Directors may appoint Managing Director ............ 22
116. Managing Director subject to removal as in case of
ordinary Directors ................................ 23
117. Remuneration of Managing Director ................... 23
118. Powers and duties of Managing Director .............. 23
CHAIRMAN OF THE BOARD
119. Directors may elect Chairman of the Board; powers and
duties of ........................................ 23
MEETINGS OF DIRECTORS
120. Directors may regulate their Meetings as they deem
fit ............................................... 23
121. Twenty-four hours' notice for Directors' Meeting .... 24
122. Meetings may be held, - within or without the Province:
(a) without notice after General Meeting .......... 24
(b) notice dispensed with if all present or waiver
received .......................................... 24
123. Provisions for summoning Meeting ................... 24
124. Majority of votes at Meeting decisive; President has
second or casting vote .............................. 24
125. Absence of Chairman, who to act in .................. 24
126. If quorum present, meeting competent ............... 24
127. Delegation of powers to committees .................. 24
128. Meetings of Committees - how carried on ............. 25
129. Acts of Directors and Committees valid notwithstanding
defective appointment of Directors .................. 25
130. Resolution signed by all the Directors, valid without
Meeting .......................................... 25
131. Directors may be remunerated for extra services ..... 25
REGISTERS
132. Register of Members to be kept ..................... 25
133. Branch Register of Members may be kept outside
Province .......................................... 25
134. Register of Directors to be kept ................... 25<PAGE>
135. Registers of holders of debentures to be kept ....... 26
136. Branch Debenture Registers may be kept outside
Province ............................................ 26
MINUTES
137. Directors shall keep Minutes of,-
(1) All appointments of officers .................... 26
(2) Attendance at Directors' Meetings ............... 26
(3) Orders made by Directors and Committees of
Directors ................................... 26
(4) Resolutions and proceedings of General Meetings 26
Such Minutes prima facie evidence of matters stated
therein.
POWERS OF DIRECTORS
138. General Powers of Company vested in Directors ....... 26
139. Directors have following express powers,-
(1) To carry Agreements into effect ................ 27
(2) To acquire property, rights and privileges ..... 27
(3) To pay for property, etc., by cash, shares, bonds,
etc. ........................................ 27
(4) To secure fulfilment of Contracts ............... 27
(5) To appoint and remove employees ................. 27
(6) To accept surrender of Shares ................... 27
(7) To appoint Trustees to hold Company assets ...... 27
(8) To bring and defend actions ..................... 28
(9) To refer matters to arbitration ................. 28
(10) To give receipts and releases .................. 28
(11) To delegate the borrowing and credit powers of the
Company ...................................... 28
(12) To appoint foreign Managers .................... 28
(13) To invest Company money ........................ 28
(14) To indemnify persons against loss .............. 28
(15) To give commissions to officers and other
persons ..................................... 29
(16) To make, amend and rescind Contracts ........... 29
(17) To allot and issue Shares ..................... 29
(18) To set up Reserve Fund and invest it ........... 29
(19) To make, vary and repeal By-Laws ............... 29
SOLICITORS
140. Company may appoint Solicitor, who may be Director .. 29
SECRETARY AND TREASURER
141. Shall be a Secretary and may be a Treasurer of
Company ........................................... 30<PAGE>
142. Secretary and Treasurer appointed by Directors ...... 30
143. President and Secretary same person ................. 30
144. Directors may appoint temporary substitute .......... 30
THE SEAL
145. Seal only to be affixed by Resolution of Directors
except for Certification ........................... 30
146. May have facsimile seal for use outside Province .... 30
DIVIDENDS
147. Dividends from profits, who entitled to and basis of
payment ........................................... 30
148. Directors may declare dividends and provide to whom
they shall be payable ............................ 31
149. Dividends only payable out of Capital surplus and
profits, not to bear interest ........................ 31
150. Directors' declaration of profits conclusive ........ 31
151. May pay interim dividends .......................... 31
152. May deduct debts due from member out of dividends ... 31
153. May retain dividends on which Company has lien ...... 31
154. Retention of dividend in certain cases under
Transmission Clause ................................. 31
155. Joint holders of Shares - any one of them may give
receipt for dividends ................................ 31
156. Meeting may declare dividends payable in Shares,
Bonds, Debentures or assets ......................... 32
157. Directors may capitalize undivided profits and
premiums on issue of Shares and distribute same ...... 32
158. Directors may issue fractional Certificates,
make cash payments for members' share of assets
distributed and disregard fractions less than
$5.00 ............................................. 32
159. Dividends may be paid by cheque ..................... 33
160. Notices of dividends to be given to Shareholders .... 33
161. Dividends unclaimed after one year may be used by
Company .......................................... 33
BOOKS OF ACCOUNT AND FINANCIAL STATEMENTS
162. Books of Account must be kept ....................... 33
163. Books of Account kept where Directors think fit ..... 33
164. Books open to inspection as Directors think fit
or as provided by Resolution ......................... 33
165. Profit and Loss Statement and Balance Sheet to
be laid before Ordinary General Meeting; date
such statement to be made up to and what to
contain .......................................... 33
166. Financial Statements may be accompanied by
Directors' Report and shall be signed by one
Director ........................................... 33
167. Copy of Financial Statements and Auditors'<PAGE>
Report to be sent to all entitled seven days
before Meeting ....................................... 33
AUDITORS AND AUDIT
168. Every General Meeting to appoint Auditors for
ensuing year ......................................... 34
169. First Auditor to be appointed by Directors ........... 34
170. Directors may fill casual vacancy in office of
Auditors. No Director, partner or employee of
an officer of the Company, or Body Corporate
eligible for appointment as Auditor .................. 34
171. Member of Company not interested otherwise than as
Member entitled to be Auditor ........................ 34
172. Provision for remuneration of Auditors .............. 34
173. Auditors to examine books annually .................. 34
174. Right of access of Auditors to books and accounts,
right to attend General Meeting, make explanation,
etc. .............................................. 34
175. Auditors shall make a report to Shareholders;
what report to contain; to be attached to
Financial Statements .............................. 35
176. Report of Auditors in cases of loans to Directors or
Officers .......................................... 35
177. When audited statements conclusive. ................. 35
178. Provision if only one Auditor ....................... 35
NOTICES
179. How Notices to be served ............................ 35
180. Not entitled to Notice if no registered address ..... 35
181. Holders of Share Warrant not entitled to notice ..... 36
182. When Notice by advertisement sufficient ............. 36
183. How Notice by advertisement is made ................. 36
184. Joint holders - sufficient to give notice to
first named on Register .............................. 36
185. When Notice by post deemed served .................. 36
186. Notice to registered holder binds holders who have
not had register changed ............................. 36
187. Notice valid though member deceased ................. 36
188. Signature on Notice may be written or printed ....... 37
189. How time to be counted .............................. 37
INDEMNITY
190. Indemnity of Directors and officers ................. 37<PAGE>
191. Directors only responsible for own dishonesty ....... 37<PAGE>
ARTICLES OF ASSOCIATION
OF
2322133 NOVA SCOTIA
LIMITED
1. In these Articles unless there is something in the
subject or context inconsistent therewith:-
"The Act" means The Companies Act, Chapter 81 of the
Revised Statutes of Nova Scotia, 1989, or any
amendment thereof or any successor Act.
"The Company" means the above named Company.
"The Office" means the registered office for the time
being of the Company.
"The Register" means the register of members to be
kept pursuant to the Act.
"The Registrar" means the Registrar of Joint Stock
Companies for the time being.
"Month" means calendar month.
"In writing" and "written" mean and include words
printed, lithographed, represented or reproduced in
any mode in a visible form.
"These Articles" includes these articles of
association and any modification or alteration thereof
for the time being in force.
"The Directors" or "The Board" means the Directors, or
the Director, if there is only one, for the time being
of the Company.
"Secretary" includes any person appointed to perform
the duties of Secretary temporarily.
"Dividend" includes bonus or stock dividend.
"Special Resolution" has the meaning assigned by the
Act.
Words importing the singular number include the plural
number, and vice versa.
Words importing the masculine gender include the
feminine gender.<PAGE>
Words importing persons include corporations.
2. The regulations contained in Table "A" in the First
Schedule to the Act shall not apply to the Company.
3. The Directors may enter into and carry into effect or
adopt and carry into effect any agreement or agreements from time
to time made by or with the promoters of the Company by or on
behalf of the Company with full power nevertheless from time to
time to agree to any modification of the terms of such agreement
or agreements either before or after the execution thereof.
4. The Directors may, out of any funds of the Company for
the time being in their hands, pay all expenses incurred in or
about the formation and establishment of the Company, including
the expenses of registration.
5. The business of the Company may be commenced as soon
after incorporation as the Directors think fit, and
notwithstanding that part only of the shares has been allotted.
SHARES
6. The shares shall be under the control of the
Directors, who may allot or otherwise dispose of the same to such
persons on such terms and conditions and either at a premium or
at par or as authorized by Clause 139(17) hereof and at such
times as the Directors think fit, subject nevertheless to the
provisions of these Articles.
7. The Directors may pay on behalf of the Company a
commission to any person in consideration of his subscribing or
agreeing to subscribe, whether absolutely or conditionally, for
any shares in the Company or his procuring or agreeing to procure
subscriptions for any shares in the Company, provided that such
commission paid or agreed to be paid does not exceed ten per cent
of the price at which such shares are sold.
8. The Company may make arrangements on the issue of
shares for a difference between the holders of such shares in the
amount of calls to be paid and the time of payment of such calls.
9. If by the conditions of allotment of any shares, the
whole or part of the amount or issue price thereof is payable by
instalments, every such instalment shall, when due, be paid to
the Company by the person who, for the time being, is the
registered holder of the share.
10. Shares may be registered in the names of any number of
persons, not exceeding three, as joint holders thereof.<PAGE>
11. Joint holders of a share shall be severally, as well
as jointly liable for the payment of all instalments and calls
due in respect of such share.
12. On the death of one or more joint holders of a share
the survivor or survivors of them shall alone be recognized by
the Company as having title to the share.
13. Save as herein otherwise provided, the Company may
treat the registered holder of any share as the absolute owner
thereof and accordingly shall not, except as ordered by a court
of competent jurisdiction or as by statute required, be bound to
recognize any equitable or other claim to or interest in such
share on the part of any other person.
CLASSES OF SHARES
14. Subject to the provisions, if any, in that behalf of
the Memorandum of Association and without prejudice to any
special rights previously conferred on the holders of existing
shares, any share may be issued with such preferred, deferred or
other special rights or such restrictions, whether in regard to
dividends, voting, return of share capital or otherwise as the
Company from time to time in General Meeting determines, and any
preference share with the sanction of a resolution of the Company
in General Meeting, may be issued on terms that it is or at the
option of the Company is liable to be redeemed or purchased by
the Company.
15. Certificates of title to shares shall be signed by the
President or Vice-President or a Director and either the
Secretary or an Assistant Secretary or by such other persons as
the Directors authorize. If the President and Secretary of the
Company are the same person, certificates of title shall be
signed by that person alone. The signature of the President or
Vice-President may be engraved, lithographed or printed upon the
certificates or any one or more of them, and any certificates
bearing such engraved, lithographed or printed signature of the
President or Vice-President, when signed by the Secretary or an
Assistant Secretary or by such other person as the Directors
authorize, shall be valid and binding upon the Company.
16. Every member shall be entitled to one certificate for
all his shares, or to several certificates each for one or more
of such shares.
17. If any certificate becomes worn out or defaced, then
upon production thereof to the Directors, they may order the same
to be cancelled and may issue a new certificate in lieu thereof;
and if any certificate is lost or destroyed, then upon proof <PAGE>
thereof to the satisfaction of the Directors, and on the giving
of such indemnity as the Directors deem adequate, a new
certificate in lieu thereof shall be given to the persons
entitled to such lost or destroyed certificate.
18. The sum of twenty-five cents, or such sum as the
Directors determine, shall be paid to the Company for every
certificate issued in respect of any share or shares except the
first.
19. The certificates of shares registered in the names of
two or more persons shall be delivered to the person first named
on the Register.
CALLS
20. The Directors may from time to time, in their
discretion, make calls upon the registered holders of shares in
respect of all amounts unpaid on the shares held by them
respectively and not by the conditions of allotment thereof made
payable at fixed times, and each registered holder shall pay the
amount of every call so made on him to the person and at the time
and place appointed by the Directors. A call may be made payable
by instalments.
21. A call shall be deemed to have been made at the time
when the resolution of the Directors authorizing such call was
passed.
22. At least fourteen days' notice of any call shall be
given, and such notice shall specify the time and place at which
and the person to whom such call shall be paid.
23. If the sum payable in respect of any call or
instalment is not paid on or before the day appointed for payment
thereof, the registered holder for the time being of the share on
which the call has been made or the instalment is due shall be
liable to pay interest for the same at the rate of six per cent
per annum from the day appointed for the payment thereof up to
the time of the actual payment, but the Directors may waive
payment of that interest either wholly or in part.
24. On the trial or hearing of any action for the recovery
of any money due for any call it shall be sufficient to prove
that the name of the member sued is entered on the Register as
the holder, or one of the holders, of the share or shares in
respect of which such debt accrued, that the resolution making
the call is duly recorded in the Minute Book and that Notice of
such call was duly given to the member sued in pursuance of these
Articles, and it shall not be necessary to prove the appointment <PAGE>
of the Directors who made such call nor any other matters
whatsoever, but the proof of the matters aforesaid shall be
conclusive evidence of the debt.
25. The Directors may, if they think fit, receive from any
member willing to advance the same, all or any part of the money
payable upon the shares held by him beyond the sums actually
called for; and upon the money so paid in advance or so much
thereof as from time to time exceeds the amount of the calls then
made or installments then due upon the shares in respect of which
such advance has been made, the Company may pay interest at such
rate, not exceeding six per cent per annum, as the member paying
such sum in advance and the Directors agree upon, or the
Directors may agree with such member that he may participate in
profits upon the amount so paid in advance.
FORFEITURE OF SHARES
26. If any member fails to pay any calls, instalment or
other sum due on any share registered in his name on or before
the day appointed for the payment of the same, the Directors may
at any time thereafter, during such time as the call, instalment
or other sum remains unpaid, serve a notice on such member
requiring him to pay the same, together with any interest that
has accrued thereon, and all expenses that have been incurred by
the Company by reason of such non-payment.
27. The notice shall name a day (not being less than
fourteen days after the date of the notice) and a place or places
on and at which such call, instalment or other sum and such
interest and expenses as aforesaid are to be paid. The notice
shall also state that in the event of non-payment on or before
the day and at the place or one of the places so named, the
shares in respect of which the call was made or the instalment or
other sum is due will be liable to be forfeited.
28. If the requisitions of any such notice as aforesaid
are not complied with, any shares in respect of which such notice
has been given may at any time thereafter, before payment of all
calls, instalments or other sums, interest and expenses due in
respect thereof, be forfeited by a resolution of the Directors to
that effect. Such forfeiture shall include all dividends
declared in respect of the forfeited shares and not actually paid
before the forfeiture.
29. When any share has been so forfeited, notice of the
resolution shall be given to the member or members in whose name
it stood immediately before the forfeiture, and an entry of the
forfeiture, with the date thereof, shall forthwith be made in the
Register.<PAGE>
30. Any share so forfeited shall be deemed to be the
property of the Company, and the Directors may sell, re-allot or
otherwise dispose of the same in such manner as they think fit.
31. The Directors, at any time before any share so
forfeited has been sold, re-allotted or otherwise disposed of,
may annul the forfeiture thereof upon such conditions as they
think fit.
32. Any member whose shares have been forfeited shall
nevertheless be liable to pay and shall forthwith pay to the
Company all calls, instalments or other sums and interest and
expenses owing upon or in respect of such shares at the time of
the forfeiture, together with interest thereon at the rate of six
per cent per annum, from time of forfeiture until payment, and
the Directors may enforce the payment thereof if they think fit
but shall not be obliged to do so.
33. A certificate in writing under the hands of one of the
Directors and countersigned by the Secretary, or if the only
Director and the Secretary are the same person, a certificate in
writing under the hand of such person, that a share has been duly
forfeited in pursuance of these Articles and stating the time
when it was forfeited shall be conclusive evidence of the facts
therein stated as against all persons who would have been
entitled to the share but for such forfeiture; and such
certificate, together with the receipt of the Company for the
price of such share, shall constitute a good title to such share.
LIEN ON SHARES
34. The Company shall have a first and paramount lien upon
all shares other than fully paid up shares registered in the name
of each member (whether solely or jointly with others), for his
debts, liabilities and other engagements, solely or jointly with
any other person, to or with the Company, whether the period for
the payment, fulfillment or discharge thereof has actually
arrived or not, and no equitable interest in any share shall be
created except upon the condition that Clause 13 of these
Articles is to have full effect. Any such lien shall extend to
all dividends from time to time declared in respect of such
shares. Unless otherwise agreed, the registration of a transfer
of shares shall operate as a waiver of the Company's lien, if
any, on such shares.
35. For the purpose of enforcing such lien, the Directors
may sell the shares subject thereto in such manner as they think
fit; but no sale shall be made until notice in writing of the
intention to sell has been given to such member or his executors<PAGE>
or administrators and default has been made by him or them in the
payment, fulfillment or discharge of such debts, liabilities or
engagements for seven days after such notice.
36. The net proceeds of any such sale after payment of
costs thereof shall be applied in or towards the satisfaction of
such debts, liabilities or engagements, and the residue, if any,
shall be paid to such member or his executors, administrators or
assigns.
VALIDITY OF SALES
37. Upon any sale, after forfeiture or for enforcing a
lien, in purported exercise of the powers given by these
Articles, the Directors may cause the purchaser's name to be
entered in the register in respect of the shares sold, and the
purchaser shall not be bound to see to the regularity of the
proceedings or to the application of the purchase money, and
after his name has been entered in the register in respect of
such shares the validity of the sale shall not be impeached by
any person, and the remedy of any person aggrieved by the sale
shall be in damages only and against the Company exclusively.
TRANSFER OF SHARES
38. The instrument of transfer of any share in the Company
shall be signed by the transferor, and the transferor shall be
deemed to remain the holder of such share until the name of the
transferee is entered in the Register in respect thereof.
39. Shares in the Company may be transferred in the
following
form, or as near thereto as circumstances permit or require:-
"For value received hereby sell, assign
and transfer unto
Shares of the Common(or Preferred) Stock represented by the
within Certificate, and do hereby irrevocably constitute and
appoint _______________________________ Attorney to transfer the
stock on the books of the within named Corporation with full
power of substitution in the premises.
Dated 19
Witness: "
40. (a) The Directors may decline to register any transfer
of shares upon which the Company has a lien, and they may decline<PAGE>
to register any transfer of shares that are not fully paid up,
without assigning any reason therefor.
(b) No transfer of shares shall be registered unless
and until the Directors have by a resolution approved the
transfer of such shares and the registration of the transfer and
the Directors shall be under no obligation to give such approval
or to give any reason for withholding the same.
(c) The number of shareholders of the Company,
exclusive of persons who are in its employment or the employment
of an affiliate of the Company and exclusive of persons who,
having been formerly in the employment of the Company or the
employment of an affiliate of the Company, were, while in that
employment, and have continued after termination of that
employment to be, shareholders of the Company, shall not exceed
fifty (50) in number, two or more persons who are the joint
registered owners of one or more shares being counted as one
shareholder.
(d) The Company shall not invite the public to
subscribe for any shares, debentures or debenture stock or other
securities of the Company.
41. Every instrument of transfer shall be left at the
office for registration, accompanied by the certificate of the
shares to be transferred and such other evidence as the Company
requires to prove the title of the transferor or his right to
transfer the shares.
42. A fee not exceeding fifty cents may be charged for
each transfer and shall, if required by the Directors, be paid
before the registration thereof.
43. Every instrument of transfer shall, after the
registration thereof, remain in the custody of the Company, but
any instrument of transfer that the Directors decline to register
shall, except in the case of fraud, be returned to the person
depositing the same.
44. The transfer books and register of members may be
closed during such time as the Directors think fit, not exceeding
in the whole thirty days in each year, notice of which shall be
given by advertisement in some newspaper circulating in the
district in which the registered office of the Company is
situate.<PAGE>
TRANSMISSION OF SHARES
45. The executors or administrators of a deceased member
(not being one of several joint holders) shall be the only
persons recognized by the Company as having any title to the
shares registered in the name of such member; in the case of a
share registered in the names of two or more joint holders, the
survivor or survivors or the executors or administrators of the
deceased survivor shall be the only persons recognized by the
Company as having any title to, or interest in, such share.
46. Any person becoming entitled to shares in consequence
of the death or insolvency or bankruptcy of any member, or in any
other way than by allotment or transfer, upon producing such
evidence of his being entitled to act in the capacity claimed, or
of his title, as the Directors think sufficient, may, with the
consent of the Directors, (which they shall not be obliged to
give) be registered as a member in respect of such shares or may,
without being registered, transfer such shares subject to the
provisions of these Articles respecting the transfer of shares.
This clause is hereinafter referred to as "the transmission
clause". The Directors shall, as in these Articles provided,
have the same right to refuse to register a person entitled by
transmission to any shares or his nominee, as if he were the
transferee named in an ordinary transfer presented for
registration.
SHARE WARRANTS
47. The Company, with respect to fully paid-up Shares, may
issue under its Common Seal warrants (hereinafter called "Share
Warrants") stating that the bearer is entitled to the shares
therein specified and may provide, by coupons or otherwise, for
the payment of future dividends on the shares included in such
warrants.
48. The Directors may determine, and from time to time
vary, the conditions upon which share warrants are issued and, in
particular, upon which a new share warrant or coupon will be
issued in the place of one worn out, defaced, lost or destroyed,
or upon which the bearer of a share warrant is entitled to attend
and vote at General Meetings or upon which a share warrant may be
surrendered and the name of the bearer entered in the register in
respect of the shares therein specified. Subject to such
conditions and to these Articles, the bearer of a share warrant
shall be a member to the full extent. The holder of a share
warrant shall be subject to the conditions for the time being in
force, whether made before or after the issue of such warrant.<PAGE>
INCREASE AND REDUCTION OF CAPITAL
49. The Company in General Meeting may, from time to time,
increase the capital by the creation or issue of new shares of
such amount as it thinks expedient.
50. The new shares may be issued upon such terms and
conditions and with such preferred, deferred or other special
rights or such restrictions annexed thereto as the General
Meeting resolving upon the creation thereof by Resolution
determines, whether with regard to dividends, voting, return of
capital, participation in the distribution of excess assets, or
otherwise.
51. The Company in General Meeting may, before the issue
of any new shares, determine that such shares, or any of them,
shall be offered in the first instance to all the then members or
to the members of any class, in proportion to the amount of the
capital held by them, or make any other provisions as to the
issue and allotment of the new shares; but in default of any such
determination, or so far as the same shall not extend, the new
shares may be dealt with as if they formed part of the shares in
the original capital.
52. Except so far as otherwise provided by the conditions
of issue or by these Articles, any capital raised by the creation
of new shares shall be considered as part of the original
ordinary capital and shall be subject to the provisions herein
contained with reference to the payment of calls and instalments
and transmissions, forfeiture, lien and otherwise.
53. The Company may from time to time, by Special
Resolution, reduce its share capital and any capital redemption
reserve fund in any manner and with and subject to any incident
authorized and consent required by law.
ALTERATION OF CAPITAL
54. The Company may from time to time in General Meeting,-
(a) Consolidate and divide all or any of its share
capital into shares of larger amount than its
existing shares;
(b) Convert all or any of its paid-up shares into
stock and reconvert that stock into paid-up shares
of any denomination;
(c) Exchange shares of one denomination for another;<PAGE>
(d) Cancel shares that, at the date of the passing of
the Resolution in that behalf, have not been taken
or agreed to be taken by any person and diminish
the amount of its share capital by the amount of
the shares so cancelled.
55. The Company may from time to time in General Meeting
and by Special Resolution,-
(a) Subdivide its shares or any of them into shares of
smaller amount than is fixed by the Memorandum of
Association, so, however, that in the subdivision
the proportion between the amount paid and the
amount, if any, unpaid on each reduced share shall
be the same as it was in the case of the share
from which the reduced share is derived. The
Special Resolution whereby any share is subdivided
may determine that, as between the holders of the
shares resulting from such subdivision, one or
more of such shares shall have some preference or
special advantage as regards dividends, capital,
voting, or otherwise, over or as compared with the
other shares;
(b) Convert any part of its issued or unissued share
capital into Preference Shares redeemable or
purchasable by the Company in the manner provided
by the Act;
(c) Provide for the issue of shares without nominal or
par value;
(d) Except in the case of Preferred Shares, convert
all or any of its previously authorized unissued
or issued and fully paid-up shares with nominal or
par value into the same number of shares without
nominal or par value and reduce, maintain or
increase accordingly its liability on any of its
shares so converted; PROVIDED, however, that the
power to reduce its liability on any of its shares
so converted where it results in a reduction of
capital may only be exercised subject to
confirmation by the Court as provided by the Act.
(e) Convert all or any of its previously authorized
unissued or issued and fully paid up shares
without nominal or par value into the same or a
different number of shares with nominal or par
value. For such purpose the shares issued without
nominal or par value and replaced by shares with<PAGE>
nominal or par value shall be considered as fully
paid, but their aggregate par value shall not
exceed the value of the net assets of the Company
as represented by the shares without par value
issued before the conversion.
56. Subject to the provisions of the Act as from time to
time in force, the Company may redeem or purchase any Common
Shares and may redeem or purchase any Preference Shares that by
the provisions from time to time attaching thereto may be
redeemed or purchased by the Company. The Directors, subject to
the provisions and conditions attaching from time to time to such
Preference Shares, may determine the manner in which and the
terms on which such Preference Shares may be redeemed or
purchased. The Directors may from time to time provide for a
sinking fund for the redemption or purchase of Preference Shares
of any class or classes on such terms as the Directors determine.
INTEREST ON SHARE CAPITAL
57. The Company may pay interest at a rate not exceeding
six per cent per annum on share capital issued and paid up for
the purpose of raising money to defray the expenses of the
construction of any works or buildings or the provision of any
plant that cannot be made profitable for a lengthy period; such
interest may be paid for such period and may be charged to
capital as part of the cost of construction of the work or
building, or the provision of plant. The payment of the interest
shall not operate as a reduction of the amount paid up on the
shares in respect of which it is paid. The financial statements
of the Company shall show full particulars of the payment during
the period to which the statements relate, in accordance with the
provisions of the Act.
MODIFICATION OF RIGHTS OF SHAREHOLDERS
58. If at any time the share capital of the Company, by
reason of the issue of preference shares or otherwise, is divided
into different classes of shares, all or any of the rights and
privileges attached to any such class may be modified, altered,
varied, affected, commuted, abrogated or otherwise dealt with by
agreement between the Company and any person purporting to
contract on behalf of that class, provided such agreement is
ratified in writing by the holders of at least three-fourths in
number of the issued shares of the class or by a Resolution
passed and confirmed by the same majority and in the same manner
as a Special Resolution at Extraordinary General Meetings of the
holders of shares of that class, and all the provisions
hereinafter contained as to General Meetings shall, mutatis
mutandis, apply to every such meeting, but so that the quorum<PAGE>
thereof shall be members holding, or representing by proxy, one-
fifth in number of the issued shares of the class. This clause
is not by implication to curtail the power of modification that
the Company would have if this clause were omitted.
SURRENDER OF SHARES
59. The Directors may accept the surrender of any share by
way of compromise of any question as to the holder's being
properly registered in respect thereof. Any share so surrendered
may be disposed of in the same manner as a forfeited share.
BORROWING POWERS
60. The Directors on behalf of the Company may from time
to time in their discretion:
(a) Raise or borrow money for the purposes of the
Company or any of them;
(b) Secure the repayment of money so raised or
borrowed in such manner and upon such terms and
conditions in all respects as they think fit, and
in particular by the execution and delivery of
mortgages of the Company's real or personal
property, or by the issue of bonds, debentures or
debenture stock of the Company secured by mortgage
or otherwise or charged upon all or any part of
the property of the Company, both present and
future, including its uncalled capital for the
time being;
Provided that the power to execute mortgages of
the Company's real or personal property and the
power to issue bonds or debentures or debenture
stock secured by mortgage or otherwise shall not
be exercised by the Directors except with the
sanction of a Special Resolution of the Company
previously passed and (where confirmation is
necessary) confirmed in General Meeting;
(c) Sign or endorse bills, notes, acceptances,
cheques, contracts and other evidence of or
securities for money borrowed or to be borrowed
for the purposes aforesaid;
(d) Pledge debentures as security for loans.<PAGE>
61. Bonds, debentures, debenture stock and other
securities may be made assignable, free from any equities between
the Company and the person to whom the same are issued.
62. Any bonds, debentures, debenture stock or other
securities may be issued at a discount, premium or otherwise and
with any special privileges as to redemption, surrender,
drawings, allotment of shares, attending and voting at General
Meetings of the Company, appointment of Directors and otherwise.
MEETINGS
63. The first General Meeting of the Company shall be held
within eighteen months of the date the Company is incorporated at
such time and place as is determined by the Directors.
64. General Meetings shall be held at least once in every
calendar year, at such time and place as are determined by the
Directors.
65. The General Meetings referred to in the next preceding
clause shall be called Ordinary General Meetings; and all other
meetings of the Company shall be called Special or Extraordinary
General Meetings.
66. The Directors may, whenever they think fit, convene a
Special General Meeting, and upon the requisition of members of
the Company holding not less than one-tenth of the total voting
rights of all the members having at the date of the deposit of
the requisition a right to vote at General Meetings of the
Company and in respect of whose shares all calls or other sums
then due have been paid, they shall forthwith proceed to convene
a Special or Extraordinary General Meeting of the Company, to be
held at such time and place as are determined by the Directors.
67. The requisition shall state the objects of the meeting
required, shall be signed by the members making the same, and
shall be deposited at the registered or other office of the
Company and may consist of several documents in like form each
signed by one or more of the requisitionists.
68. If the Directors do not proceed to cause a meeting to
be held within twenty-one days from the date of the deposit of
the requisition, the requisitionists, or a majority of them in
value, may themselves convene the meeting, but any meeting so
convened shall not be held after three months from the date of
such deposit.
69. If at any such meeting a resolution requiring
confirmation at another meeting is passed, the Directors shall <PAGE>
forthwith convene a future Special General Meeting for the
purpose of considering such resolution, and, if thought fit, of
confirming it as a Special Resolution; and if the Directors do
not convene the meeting within seven days from the date of the
passing of the first resolution, the requisitionists, or a
majority of them in value, may themselves convene the meeting.
70. Any meeting convened under the foregoing provisions by
the requisitionists shall be convened in the same manner as
nearly as possible as that in which meetings are to be convened
by Directors.
71. At least seven clear days' notice, specifying the
place, day and hour of meeting and, in case of special business,
the general nature of the business shall be given to all members
entitled to vote at such meeting, either by advertisement in a
newspaper published in Halifax, N.S., or by notice sent by post,
transmitted by facsimile or otherwise served as hereinafter
provided, and with the consent in writing of all the members a
meeting may be convened on short notice, and in any manner they
think fit, or if all the members are present at a meeting either
in person or by proxy, notice thereof may be waived.
72. Where it is proposed to pass a Special Resolution, the
two meetings may be convened by one and the same notice, and it
shall be no objection to such notice that it only convenes the
second meeting contingently upon the resolution's being passed by
the requisite majority at the first meeting.
73. The accidental omission to give any such notice to any
of the members or the non-receipt of any such notice by any
member shall not invalidate any resolution passed at any such
meeting.
PROCEEDINGS AT GENERAL MEETINGS
74. The business of an Ordinary General Meeting shall be
to receive and consider the profit and loss statement, the
balance sheet and the reports of the Directors and of the
auditors, to elect Directors in the place of those retiring and
to transact any other business that under these Articles ought to
be transacted at an Ordinary General Meeting.
75. One member personally present and entitled to vote
shall be a quorum for a General Meeting for the choice of a
chairman and for the adjournment of the meeting. For all other
purposes the quorum for a General Meeting shall be members
personally present and entitled to vote not being less than one
in number and holding or representing by proxy not less than one-
tenth in number of such of the issued shares of the Company as <PAGE>
confer upon the holders thereof the right to vote at such
meeting. Provided that a corporation that is a member of the
Company and that has duly appointed a representative under the
Act who is personally present at the meeting shall for the
purposes of this clause be considered as if personally present
thereat.
76. No business shall be transacted at any General Meeting
unless the quorum requisite is present at the commencement of the
business.
77. The President of the Company shall take the chair at
every General Meeting, or if there is no President, or if at any
meeting he is not present within fifteen minutes after the time
appointed for holding such meeting, the members shall choose
another Director as chairman, and if no Director is present or if
all the Directors present decline to take the chair, then the
members present shall choose one of their number to be chairman.
78. If within half an hour from the time appointed for the
meeting a quorum is not present, the meeting, if convened upon
such requisition as aforesaid, shall be dissolved, but in any
other case it shall stand adjourned to the same day in the next
week, at the same time and place, and if at such adjourned
meeting a quorum is not present those members who are present
shall be a quorum and may transact the business for which the
meeting was called.
79. Every question submitted to a meeting shall be
decided, in the first instance, by show of hands, and in the case
of an equality of votes the chairman shall, both on show of hands
and at the poll, have a casting vote in addition to the vote or
votes to which he is entitled as a member.
80. At any General Meeting a resolution put to the meeting
shall be decided by a show of hands, unless a poll is (before or
on the declaration of the result of a show of hands) demanded by
the chairman or by at least five members present and entitled to
vote at the meeting or by a member or members holding or
representing by proxy or entitled to vote in respect of at least
one-tenth in number of the issued shares of the Company as confer
upon the holders thereof the right to vote at such meeting, and
unless a poll is so demanded a declaration by the chairman that a
resolution has been carried, or carried by a particular majority,
or lost, or not carried by a particular majority, and an entry to
that effect in the book of proceedings of the Company shall be
conclusive evidence of the fact without proof of the number or
proportion of the votes recorded in favour or against such
resolution. A corporation that is a member of the Company and
that has duly appointed a representative under the Act who is <PAGE>
personally present at the meeting shall, for the purposes of this
Clause, be considered as if personally present thereat.
81. If a poll is demanded as aforesaid, it shall be taken
in such manner and at such time and place as the chairman of the
meeting directs, and either at once or after an interval or
adjournment or otherwise, and the result of the poll shall be
deemed to be the resolution of the meeting at which the poll was
demanded. The demand of a poll may be withdrawn. In case of a
dispute as to the admission or rejection of a vote, the chairman
shall determine the same, and such determination, made in good
faith, shall be final and conclusive.
82. The chairman of a General Meeting may, with the
consent of the meeting, adjourn the same from time to time and
from place to place, but no business shall be transacted at any
adjourned meeting other than the business left unfinished at the
meeting from which the adjournment took place.
83. Any poll demanded on the election of a chairman of a
meeting or on any question of adjournment shall be taken at the
meeting and without adjournment.
84. The demand of a poll shall not prevent the continuance
of a meeting for the transaction of any other business than the
question on which a poll has been demanded.
VOTES OF MEMBERS
85. Subject to the provisions applicable to any shares
issued under conditions limiting or excluding the right of
holders thereof to vote at General Meetings, on a show of hands
every member present in person shall have one vote, and upon a
poll every member present in person or by proxy shall have one
vote for every share held by him. Where a corporation being a
member is present by a proxy who is not a member or by a
representative duly authorized under the Act, such proxy or
representative shall be entitled to vote for such corporation
either on a show of hands or at a poll.
86. Any person entitled under the transmission clause to
transfer any shares may vote at any General Meeting in respect
thereof in the same manner as if he were the registered holder of
such shares, provided that forty-eight hours at least before the
time of holding the meeting or adjourned meeting, as the case may
be, at which he proposes to vote he has satisfied the Directors
of his right to transfer such shares, unless the Directors have
previously admitted his right to vote in respect thereof.<PAGE>
87. Where there are joint registered holders of any shares
any one of such persons may vote at any meeting, either
personally or by proxy, in respect of such shares as if he were
solely entitled thereto; and if more than one of such joint
holders is present at any meeting, personally or by proxy, the
one of such persons so present whose name stands first on the
register in respect of such shares shall alone be entitled to
vote in respect thereof. Several executors or administrators of
a deceased member in whose name any share stands shall for the
purposes of this clause be deemed joint holders thereof.
88. Votes may be given either personally or by proxy or in
the case of a corporation by a representative duly authorized
under the Act.
89. The instrument appointing a proxy shall be in writing
under the hand of the appointer or of his attorney duly
authorized in writing or, if such appointer is a corporation,
under its common seal. No person shall be appointed a proxy who
is not a member of the Company and qualified to vote, save that a
corporation being a member of the Company may appoint as its
proxy any person whether such person is a member of the Company
or not. Holders of share warrants shall not be entitled to vote
by proxy in respect of the shares included in such warrants
unless otherwise expressed in such warrants.
90. A member of unsound mind in respect of whom an order
of incompetency has been made by any Court may vote by his
guardian or other person in the nature of a guardian appointed by
that Court, and any such guardian or other person may vote by
proxy.
91. The instrument appointing a proxy and the power of
attorney or other authority, if any, under which it is signed or
a notarially certified copy of that power or authority or a
facsimile copy thereof shall be deposited at the Office of the
Company not less than forty-eight hours before the person named
in such instrument purports to vote in respect thereof.
92. A vote given in accordance with the terms of an
instrument of proxy shall be valid notwithstanding the previous
death of the principal, or revocation of the proxy, or transfer
of the share in respect of which the vote is given, provided no
intimation in writing of the death, revocation, or transfer has
been received before the meeting at the Office of the Company or
by the chairman of the meeting before the vote is given.<PAGE>
93. Every instrument of proxy, whether for a specified
meeting or otherwise, shall, as nearly as circumstances will
admit, be in the form or to the effect following:-
I, of
in the County of
, being a member of
Limited, hereby appoint of
or failing him
of as
my proxy, to vote
for me and on my behalf at the General (or Special General, as
the case may be) Meeting of the Company to be held on the
day of and at any adjournment thereof, or
at any meeting of the Company that is held within three months
from the date hereof.
As witness my hand this day of 19
Witness:
______________________________
94. No member is entitled to be present or to vote on any
question either personally or by proxy or as proxy for another
member at any General Meeting, or upon a poll, or be reckoned in
a quorum while any call or other sum is due and payable to the
Company in respect of any of the shares of such member.
95. Any resolution passed by the Directors of which notice
has been given to the members in the manner in which notices are
hereinafter directed to be given and that, within one month after
it has been passed, has been ratified and confirmed in writing by
members entitled at a poll to three-fifths of the votes, shall be
as valid and effectual as a resolution of a General Meeting; but
this clause shall not apply to a resolution for winding up the
Company or to a resolution passed in respect of any matter that
by statute or these Articles is be dealt with by Special
Resolution.
96. A resolution, including a special resolution, in
writing and signed, either by original signature or facsimile
copy thereof, by every shareholder who would be entitled to vote
on the resolution at a meeting is as valid as if it were passed
by such shareholders at a meeting and satisfied all the
requirements of the Act respecting meetings of Shareholders. A <PAGE>
copy of every such resolution shall be kept with the minutes of
proceedings of Shareholders.
DIRECTORS
97. Unless otherwise determined by a General Meeting the
number of the Directors shall not be less than one nor more than
twelve.
98. Notwithstanding anything herein contained, the
subscribers to the Memorandum of Association shall be the first
Directors of the Company.
99. The Directors, from time to time, may appoint any
other person or persons to be a Director or Directors, either to
fill a casual vacancy or as an addition, but so that the total
number of Directors shall not at any time exceed the maximum
number fixed as above, and no such appointment shall be effective
unless two-thirds of the Directors concur therein.
100. It shall not be necessary for a person to hold a share
in the Company in order to qualify as a Director.
101. A Director may retire from his office upon giving one
month's notice in writing to the Company of his intention so to
do, and such resignation shall take effect upon the expiration of
such notice or its earlier acceptance.
102. The Directors shall be paid out of the funds of the
Company by way of remuneration for their service such sums, if
any, as the Company in General Meeting determines, and such
remuneration shall be divided among them in such proportions and
manner as the Directors determine; the Directors may also be paid
their reasonable travelling and hotel and other expenses incurred
in consequence of their attendance at Board meetings and
otherwise in the execution of their duties as Directors.
103. The continuing Directors may act notwithstanding any
vacancy in their body; but in the event that at any time there
are no Directors, the shareholders may fill the vacancy or
vacancies.
104. A Director may hold any other office or place of
profit under the Company in conjunction with the office of
Director and on such terms as to remuneration and otherwise as
the Directors determine.
105. The office of a Director shall ipso facto be vacated:-<PAGE>
(a) if he becomes bankrupt or insolvent or suspends
payment, or compounds with creditors, or makes a
general assignment for the benefit of his creditors,
or
(b) if he is found to be incompetent or becomes of
unsound mind, or
(c) if he ceases to hold the required number of shares
to qualify him for office or does not acquire the same
within three months after election or appointment, or
(d) subject to Clause 101, if by notice in writing to
the Company he resigns his office, or
(e) if he is removed by resolution of the Company as
provided in Clause 112 hereof.
106. No Director shall be disqualified by his office from
contracting with the Company, either as vendor, purchaser or
otherwise, nor shall any such contract, or any contract or
arrangement entered by or on behalf of the Company in which any
Director is in any way interested, be avoided nor shall any
Director so contracting or being so interested be liable to
account to the Company for any profit realized by any such
contract or arrangement, by reason of such Director's holding
that office or of the fiduciary relation hereby established, but
he shall disclose the nature of his interest at the Meeting of
Directors at which the contract or arrangement is made, or if his
interest does not then exist or in any other case, at the first
meeting of the Directors after the acquisition of his interest,
and if there is one or more Director who is not interested in
such contract or arrangement, any interested Director shall, as a
Director, not vote in respect of any contract or arrangement in
which he is so interested, and should he so vote, his vote shall
not be counted; but this prohibition may at any time or times be
suspended or relaxed to any extent by a General Meeting, and such
prohibition shall not apply to any contract by or on behalf of
the Company to give to the Directors or any of them any security
for advances or by way of indemnity or to the agreement or
agreements referred to in Clause 3 or to any modification of such
agreement or agreements or to any agreement or agreements
substituted therefor or any matter arising out of any such
agreement or agreements.
ELECTION OF DIRECTORS
107. At the first General Meeting to be held in the year
following incorporation and at every succeeding Ordinary General
Meeting all the Directors shall retire from office. A retiring <PAGE>
Director shall retain office until the dissolution of the meeting
at which his successor is elected.
108. A retiring Director is eligible for re-election.
109. The Company at every Ordinary General Meeting shall
fill up the vacant offices by electing a like number of persons
to be Directors, unless it is determined at such meeting to
reduce the number of Directors.
110. If, at any General Meeting at which an election of
Directors ought to take place, no such election takes place the
retiring Directors shall continue in office until the Ordinary
General Meeting in the next year, and so on from year to year
until their places are filled up unless it is determined at such
meeting to reduce the number of Directors.
111. The Company in General Meeting may from time to time
increase or reduce the number of Directors and may determine or
alter their qualifications.
112. The Company in General Meeting may remove any Director
before the expiration of his period of office and appoint another
qualified person in his stead; the person so appointed shall hold
office during such time only as the Director in whose place he is
appointed would have held the same if he had not been removed.
THE PRESIDENT AND VICE-PRESIDENTS
113. The Directors may elect one of their number to be the
President of the Company and may determine the period for which
he is to hold office. The President shall have general
supervision of the business of the Company and shall perform such
duties as are assigned to him by the Board from time to time.
114. The Directors may also elect from their number one or
more persons to be Vice-President and may determine the period
for which such person or persons shall hold office. Any Vice-
President shall, subject to the directions of the Board, perform
the duties of the President during the absence, illness or
incapacity of the President or during such period as the
President requests him so to do.
MANAGING DIRECTOR
115. The Directors from time to time may appoint one or
more of their body to be Managing Director or Managing Directors
of the Company, either for a fixed term or without any limitation
as to the period for which he is or they are to hold such office,<PAGE>
and may remove or dismiss him or them from office and appoint
another or others in his or their places.
116. A Managing Director shall, subject to the provisions
of any contract between him and the Company, be subject to the
same provisions as to resignation and removal as the Directors of
the Company, and if he ceases to hold the office of Director he
shall ipso facto and immediately cease to be Managing Director.
117. The remuneration of a Managing Director shall from
time to time be fixed by the Directors and may be by way of
salary, or commission, or participation in profits, or by any or
all these modes.
118. The Directors from time to time may entrust to and
confer upon a Managing Director for the time being such of the
powers exercisable by the Directors as they think fit and may
confer such powers for such time, and to be exercised for such
objects and purposes and upon such terms and conditions and with
such restrictions, as they think expedient, and they may confer
such powers, either collaterally with, or to the exclusion of and
in substitution for, all or any of the powers of the Directors in
that behalf and may from time to time revoke, withdraw, alter or
vary all or any of such powers.
CHAIRMAN OF THE BOARD
119. The Directors may also elect one of their number to be
Chairman of the Board and may determine the period during which
he is to hold office. He shall preside, when present, at
meetings of the Board and shall perform such duties and receive
such special remuneration as the Board from time to time
provides.
MEETINGS OF DIRECTORS
120. The Directors may meet together for the dispatch of
business, may adjourn or otherwise regulate their meetings and
proceedings as they think fit, and may determine the quorum
necessary for the transaction of business. Unless otherwise
determined by the Directors, a quorum shall be one Director.
Where all of the Directors of the Company consent thereto,
meetings of the Board of Directors may be held by means of
telephone or other communications equipment so that all persons
participating in the meeting can hear each other, and when
Directors so participate in a meeting they shall be deemed to be
present in person at that meeting. Such consent may be given in
such a way that it is applicable to all meetings of the Board of
Directors. <PAGE>
121. Meetings of Directors may be held, unless otherwise
provided, on twenty-four hours' notice. Such notice may be
delivered or mailed or telegraphed or telephoned or transmitted
by facsimile or otherwise communicated to each Director.
122. Meetings of Directors may be held either within or
without the Province of Nova Scotia, and the Directors may from
time to time make arrangements relating to the time and place of
holding Directors' meetings, the notices to be given thereof and
what meetings may be held without notice. Unless otherwise
provided by such arrangements:-
(a) A meeting of Directors may be held at the close of
every Ordinary General Meeting of the Company without
notice;
(b) A meeting of Directors may be held without formal
notice if all the Directors are present or if those
absent have signified their assent to such meeting or
their consent to the business transacted thereat.
123. The President or any one Director may at any time, and
the Secretary, upon the request of the President or any one
Director, shall convene a meeting of the Directors to be held at
the Registered Office of the Company. The President or Chairman
or a majority of the Board may at any time summon a meeting to be
held elsewhere.
124. Questions arising at any meeting shall be decided by a
majority of votes, and in case of an equality of votes, the
President, if he is present, and otherwise the Chairman of the
meeting shall have a second or casting vote.
125. If no Chairman of the Board is elected, or if at any
meeting of Directors he is not present within five minutes after
the time appointed for holding the same, the President shall
preside, and if the President is not present at that time a Vice-
President of the Company shall preside, and if neither the
President nor a Vice-President is present at any meeting within
the time aforesaid, the Directors present shall choose some one
of their number to be chairman of such meeting.
126. A meeting of the Directors for the time being at which
a quorum is present may exercise all or any of the authorities,
powers and discretions vested in, or exercisable by the Directors
generally.
127. The Directors may delegate any of their powers to one
or more committees consisting of such number of members of their
body as they think fit. Any committee so formed shall in the <PAGE>
exercise of the powers so delegated conform to any regulations
that are imposed on them by the Directors.
128. The meetings and proceedings of any such committee
consisting of two or more members shall be governed by the
provisions contained in these Articles for regulating the
meetings and proceedings of the Directors so far as the same are
applicable thereto and are not superseded by any regulations made
by the Directors under the next preceding Clause.
129. All acts done at any meeting of the Directors or of a
committee of Directors or by any person acting as a Director
shall, notwithstanding that it is afterwards discovered that
there was some defect in the appointment of such Directors or
persons acting as aforesaid, or that they or any of them were
disqualified, be as valid as if every such person had been duly
appointed and was qualified to be a Director.
130. A resolution in writing and signed, either by original
signature or facsimile copy thereof, by every Director who would
be entitled to vote on the resolution at a meeting is as valid as
if it were passed by such Directors at a meeting. A copy of
every such resolution shall be kept with the minutes of
proceedings of the Directors or committee thereof, as the case
may be.
131. If any Director being willing is called upon to
perform extra services or to make any special exertions in going
or residing abroad or otherwise for any of the purposes of the
Company, the Company may remunerate the Director, either by a
fixed sum or by a percentage of profits or otherwise, as is
determined by the Directors, and such remuneration may be either
in addition to or in substitution for his share in the
remuneration above provided.
REGISTERS
132. The Directors shall cause a proper register of the
members of the Company to be kept in accordance with the
provisions of the Act.
133. The Directors may cause to be kept in any place
outside of Nova Scotia a branch register of members in accordance
with the provisions of the Act.
134. The Directors shall also cause to be kept a proper
register containing the names and addresses and occupations of
its Directors or managers in accordance with the provisions of
the Act.<PAGE>
135. The Directors shall cause a proper register of the
holders of debentures to be kept at the Registered Office of the
Company in accordance with the provisions of the Act.
136. The Directors may cause to be kept in any place
outside of Nova Scotia a branch register of the holders of
debentures in accordance with the Act.
MINUTES
137. The Directors shall cause minutes to be duly entered
in books for that purpose:-
(1) of all appointments of officers;
(2) of the names of the Directors present at each
meeting of the Directors and at any committee of the
Directors;
(3) of all orders made by the Directors and committees
of Directors;
(4) of all resolutions and proceedings of General
Meetings and of meetings of the Directors and
committees thereof;
and any such minutes of any meeting of the Directors or of any
committee or of the Company, if purporting to be signed by the
Chairman of such meeting or by the Chairman of the next
succeeding meeting, shall be receivable as prima facie evidence
of the matters stated in such minutes.
POWERS OF DIRECTORS
138. The management of the business of the Company shall be
vested in the Directors, who, in addition to the powers and
authorities expressly conferred upon them, may exercise all such
powers and do all such acts and things as may be exercised or
done by the Company and are not hereby or by statute expressly
directed or required to be exercised or done by the Company in
General Meeting, but subject nevertheless to the provisions of
the Act in that behalf and of these Articles and to any
regulations from time to time made by the Company in General
Meeting; provided that no regulations so made shall invalidate
any prior act of the Directors that would have been valid if such
regulation had not been made.
139. Without restricting the generality of the last
preceding Clause and without prejudice to the general powers <PAGE>
conferred by these Articles the Directors shall have the
following powers, that is to say:-
(1) To take such steps as they think fit to carry into
effect any agreement or contract made by or on behalf
of the Company;
(2) To purchase or otherwise acquire for the Company
any property, rights, or privileges that the Company
is authorized to acquire and at such price and
generally on such terms and conditions as they think
fit;
(3) At their discretion to pay for any property,
rights, or privileges acquired by or services rendered
to the Company, either wholly or partially, in cash or
in shares, bonds, debentures or other securities of
the Company, and any such shares may be issued either
as fully paid up or with such amount credited as paid
up thereon as is agreed upon; and any such bonds,
debentures, or other securities may be either
specifically charged upon all or any part of the
property of the Company and its uncalled capital or
not so charged;
(4) Subject to the provisions of the Act, to secure
the fulfillment of any contracts or engagements
entered into by the Company, by mortgage or charge of
all or any of the property of the Company and its
unpaid capital for the time being or in such other
manner as they think fit;
(5) To appoint, and at their discretion remove or
suspend, such managers, secretaries, treasurers,
officers, clerks, agents and servants for permanent,
temporary or special services as they from time to
time think fit and to determine their powers and
duties and fix their salaries or emoluments and to
require security in such instances and to such amounts
as they think fit;
(6) To accept from any member insofar as the law
permits, and on such terms and conditions as are
agreed upon, a surrender of his shares or of any part
thereof;
(7) To appoint any person or persons (whether
incorporated or not) to accept and hold in trust for
the Company any property belonging to the Company or
in which it is interested and for any other purposes <PAGE>
and to execute and do all such deeds and things as are
requisite in relation to any such trust, and to
provide for the remuneration of any such trustee or
trustees;
(8) To institute, conduct, defend, compound, or
abandon any legal proceedings by and against the
Company or its officers or otherwise concerning the
affairs of the Company, and also to compound and allow
time for payment or satisfaction of any debts due and
of any claims or demands by or against the Company;
(9) To refer any claims or demands by or against the
Company to arbitration and observe and perform the
awards;
(10) To make and give receipts, releases and other
discharges for money payable to the Company and for
claims and demands of the Company;
(11) To determine who may exercise the borrowing
powers of the Company and sign on the Company's behalf
bonds, debentures or other securities, bills, notes,
receipts, acceptances, assignments, transfers,
hypothecations, pledges, endorsements, cheques,
drafts, releases, contracts, agreements and all other
instruments and documents;
(12) To provide for the management of the affairs
of the Company abroad in such manner as they think
fit, and in particular to appoint any persons to be
the attorneys or agents of the Company with such
powers (including power to sub-delegate) and upon such
terms as are thought fit;
(13) To invest and deal with any of the funds of
the Company not immediately required for the purposes
thereof, upon such securities and in such manner as
they think fit, and from time to time to vary or
realize such investments;
(14) To execute in the name and on behalf of the
Company, in favour of any Director or any other person
who incurs or is about to incur any personal liability
for the benefit of the Company, such mortgages of the
Company's property, present and future, as they think
fit, and any such mortgages may contain a power of
sale and such other powers, covenants and provisions
as are agreed on;<PAGE>
(15) To give any officer or other person employed
by the Company a commission on the profits of any
particular business or transaction or a share in the
general profits of the Company, and such commission or
share of profits shall be treated as part of the
working expenses of the Company;
(16) To enter into all such negotiations and
contracts and rescind and vary all such contracts and
execute and do all such acts, deeds and things in the
name and on behalf of the Company as they consider
expedient for or in relation to any of the matters
aforesaid or otherwise for the purposes of the
Company;
(17) From time to time to allot and issue shares of
the capital stock of the Company without nominal or
par value at such prices or other such consideration
as the Directors from time to time determine;
(18) To set aside out of the profits of the Company
before declaring any dividend, such sums as they think
proper as a reserve fund to meet contingencies or to
provide for dividends or for depreciation, and for
such other purposes as the Directors in their
discretion think conducive to the interests of the
Company; and to invest the several sums so set aside
upon such investments as they think fit, and from time
to time to deal with and vary such investments, and to
dispose of all or any part thereof for the benefit of
the Company, and to divide the reserve fund into such
special funds as they think fit, with full power to
employ the assets constituting the reserve fund in the
business of the Company, without being bound to keep
the same separate from the other assets.
(19) From time to time to make, vary and repeal by-
laws for the regulation of the business of the
Company, its officers and employees or the members of
the Company or any section thereof.
SOLICITORS
140. The Company may employ or retain a solicitor or
solicitors, and such solicitor may, at the request of the Board
of Directors or on instructions of the Chairman of the Board or
the President or Managing Director, attend meetings of the
Directors or Shareholders, whether or not he himself is a member
or Director of the Company. If a Solicitor is also a Director he<PAGE>
may nevertheless charge for services rendered to the Company as a
Solicitor.
SECRETARY AND TREASURER
141. There shall be a Secretary of the Company, who shall
keep the Minutes of Shareholders' and Directors' meetings and
shall perform such other duties as are assigned to him by the
Board. The Board may also appoint a Treasurer of the Company to
carry out such duties as the Board assigns.
142. The Secretary and Treasurer of the Company shall be
appointed by the Directors. If the Directors think fit the same
person may hold both offices.
143. If the Directors think fit, the same person may hold the
offices of President and Secretary.
144. The Directors may appoint a temporary substitute for
the Secretary, who shall, for the purposes of these Articles, be
deemed to be the Secretary.
THE SEAL
145. The seal of the Company shall not be affixed to any
instrument except by the authority of a resolution of the Board
of Directors or of a committee thereof and in the presence of the
Secretary or such other person as the Directors appoint for the
purpose; and the Secretary or other person as aforesaid shall
sign every instrument to which the Seal of the Company is so
affixed in their presence. For purposes of certification of
documents or proceedings the Secretary or any Director or officer
appointed by the Board may affix the seal of the Company.
146. The Company may have for use, as to all matters to
which the corporate existence and capacity of the Company extends
in any place not situate in the Province of Nova Scotia, an
official seal, which shall be a facsimile of the Common Seal of
the Company, with the addition on its face of the name of the
place where it is to be used; and the Company may by writing
under Seal authorize any person appointed for the purpose in any
place outside of Nova Scotia to affix the same to any document to
which the Company is a party in that place.
DIVIDENDS
147. The profits of the Company, subject to the provisions
of the Memorandum of Association and of these Articles and to the
rights of persons, if any, entitled to shares with special rights
as to dividends, may be divided among the members in proportion
to the amount of capital paid up on the shares held by them <PAGE>
respectively. Where capital is paid up in advance of calls upon
the footing that the same shall carry interest, such capital
shall not while carrying interest confer a right to participate
in profits.
148. The Directors may from time to time declare such
dividends upon the shares of the Company as they deem proper
according to the rights of the members and the respective classes
thereof, and may determine the date upon which the same shall be
payable and provide that any such dividend shall be payable to
the persons registered as the holders of the shares in respect of
which the same is declared at the close of business upon such
date as the Directors specify, and no transfer of such shares
made or registered after the date so specified shall pass any
right to the dividend so declared.
149. No dividend shall be payable except out of capital
surplus or out of the profits arising from the business of the
Company, and no dividend shall carry interest as against the
Company.
150. The declaration of the Directors as to the amount of
the net profits of the Company shall be conclusive.
151. The Directors may from time to time pay to the members
such interim dividends as in their judgment the position of the
Company justifies.
152. The Directors may deduct from the dividends payable to
any member all such sums of money as are due and payable by him
to the Company on account of calls, instalments or otherwise and
may apply the same in or towards satisfaction of such sums of
money so due and payable.
153. The Directors may retain any dividends on which the
Company has a lien and may apply the same in or towards
satisfaction of the debts, liabilities or engagements in respect
of which the lien exists.
154. The Directors may retain the dividends payable upon
shares or stock in respect of which any person is under the
transmission Clause entitled to become a member or that any
person under that Clause is entitled to transfer, until such
person has become a member in respect thereof or duly transfers
the same.
155. In case several persons are registered as the joint
holders of any shares, any one of such persons may give effectual
receipts for all dividends and payments on account of dividends
in respect of such share.<PAGE>
156. Subject to the Act, any meeting declaring a dividend
may resolve that such dividend be paid wholly or in part by the
distribution of specific assets or of paid up shares, debentures,
bonds or debenture stock of the Company or paid up shares,
debentures, bonds or debenture stock of any other company, or in
any one or more of such ways.
157. Subject to the Act, any meeting of the Directors may
resolve that any funds, investments or other assets forming part
of the undivided profits of the Company standing to the credit of
the reserve fund or in the hands of the Company and available for
dividends or representing premiums received on the issue of
shares and standing to the credit of the share premium account,
be capitalized and distributed among such of the shareholders as
would be entitled to receive the same if distributed by way of
dividends and in the same proportions on the footing that they
become entitled thereto as capital and that all or any part of
such capitalized fund be applied on behalf of such shareholders
in paying up in full, either at par or at such premium as the
resolution provides, any unissued shares or debentures or
debenture stock of the Company, which shall be distributed
accordingly, or in or toward payment of the uncalled liability on
any issued shares or debentures or debenture stock, and that such
distribution or payment shall be accepted by such shareholders in
full satisfaction of their interest in the said capitalized sum.
158. For the purpose of giving effect to any resolution
under the two last preceding Clauses, the Directors may settle
any difficulty that arises in regard to the distribution as they
think expedient and in particular may issue fractional
certificates, and may fix the value for distribution of any
specific assets, and may determine that cash payments shall be
made to any members upon the footing of the value so fixed or
that fractions of less value than $5.00 may be disregarded in
order to adjust the rights of all parties, and may vest any such
cash or specific assets in trustees upon such trusts for the
persons entitled to the dividend or capitalized fund as seems
expedient to the Directors.
159. Unless otherwise determined by the Directors, any
dividend may be paid by a cheque on the bank of the Company,
which shall be delivered to or sent by the Secretary through the
post to the registered address of the person entitled thereto or,
in case of joint holders, to the registered address of the one
whose name stands first on the register in respect of the joint
holding; and every cheque so sent shall be made payable to the
order of the person to whom it is sent.<PAGE>
160. Notices of the declaration of any dividend, whether
interim or otherwise, shall be given to the holders of registered
shares in the manner hereinafter provided.
161. All dividends unclaimed for one year after having been
declared may be invested or otherwise made use of by the
Directors for the benefit of the Company until claimed.
BOOKS OF ACCOUNT AND FINANCIAL STATEMENTS
162. The Directors shall cause true books of account or
equivalent records to be kept of the sums of money received and
expended by the Company, of the matters in respect of which such
receipts and expenditures take place, and of the assets and
credits and liabilities of the Company
163. The books of account shall be kept at such place or
places as the Directors think fit.
164. The Directors shall from time to time determine
whether, and to what extent, and at what times and places and
under what conditions or regulations, the accounts and books of
the Company or any of them shall be open to the inspection of the
members, and no member shall have any right of inspecting any
account or book or document of the Company except as conferred by
statute or authorized by the Directors or by a resolution of the
Company in General Meeting.
165. At the Ordinary General Meeting in every year, but not
at the first General Meeting, the Directors shall lay before the
Company a profit and loss statement and a balance sheet made up
to a date not more than three months before the meeting.
166. Every such profit and loss statement and balance sheet
may be accompanied by a report of the Directors as to the state
and condition of the Company and as to the amount of dividends,
if any, they have declared and the amount, if any, that they
propose to carry to the reserve fund, and the balance sheet shall
be signed by one Director.
167. A copy of every profit and loss statement and balance
sheet (including every document required by law to be annexed
thereto) that is to be laid before the Company in General
Meeting, together with a copy of the auditors' report, shall not
less than seven days before the date of the meeting be sent to
all persons entitled to receive notices of General Meetings of
the Company.<PAGE>
AUDITORS AND AUDIT
168. The Company shall at each Ordinary General Meeting
appoint an auditor or auditors to hold office until the next
Ordinary General Meeting.
169. The first auditors of the Company may be appointed by
the Directors at any time before the first Ordinary General
Meeting, and auditors so appointed shall hold office until such
meeting unless previously removed by a resolution of the
shareholders in General Meeting, in which case the shareholders
at such meeting may appoint auditors.
170. The Directors may fill any casual vacancy in the
office of auditor, but while any such vacancy continues the
surviving or continuing auditor or auditors, if any, may act.
None of the following persons shall be eligible for
appointment as auditor of the Company:
(a) Directors and officers of the Company;
(b) Partners or employees of an officer of the
Company;
(c) a body corporate.
171. A member of the Company, other than the persons listed
as ineligible in the next preceding Clause, may be an auditor,
but no person shall be eligible as an auditor who is interested
otherwise than as a member of the Company in any transaction
thereof.
172. The remuneration of the auditors shall be fixed by the
Company in General Meeting, or by the Directors pursuant to
authorization given by the shareholders at a General Meeting,
except that the remuneration of an auditor appointed before the
first Ordinary General Meeting or of an auditor appointed to fill
a casual vacancy may be fixed by the Directors.
173. Once at least in every year the accounts and records
of the Company shall be examined and the fairness of the profit
and loss statement and balance sheet reported upon by the
auditors.
174. The auditors shall have a right of access at all times
to the books and accounts and vouchers of the Company and may
require from the Directors and officers of the Company such
information and explanations as they deem necessary for the<PAGE>
performance of their duties as auditors. The auditors may attend
any General Meeting of the Company at which any financial
statements that have been examined or reported on by them are to
be laid before the Company and to make any statement or
explanation they desire with respect to the accounts or
statements.
175. The auditors shall make a report to the Shareholders
on the accounts and records examined by them, and on the
financial statements laid before the Company in General Meeting
during their term of office as required by the Act. The
auditors' report shall be attached to the financial statements
and shall be read before the Company in General Meeting and shall
be open to inspection by any Shareholder.
176. If the financial statements of the Company fail to
disclose the amount of any loan made during the period to which
the statements relate, either by or on the guarantee or security
of the Company, to any Director or officer of the Company,
including loans that have been repaid during the period and loans
made before the period and outstanding at the expiration thereof,
or if such statements fail to disclose the total amount paid by
the Company to the Directors as remuneration for their services
as such, other than the salaries of salaried Directors, then the
auditors shall include in their report, so far as they are able
to do so, a statement giving particulars of all such payments and
transactions.
177. The financial statements, when audited and approved by
a General Meeting, shall be conclusive, except as regards an
error discovered therein within three months next after the
approval thereof. Whenever any such error is discovered within
that period the statements shall forthwith be corrected and
henceforth shall be conclusive.
178. If one auditor only is appointed all the provisions
herein contained relating to auditors shall apply to him.
NOTICES
179. A notice may be served by the Company upon any member,
personally, by sending it through the post in a prepaid envelope
or wrapper addressed to such member at his registered place of
address, or by transmitting a facsimile copy thereof to such
member at the facsimile number for his registered place of
address, if there is one.
180. Members who have no registered place of address shall
not be entitled to receive any notice.<PAGE>
181. The holder of a share warrant shall not, unless
otherwise expressed therein, be entitled in respect thereof to
notice of any General Meeting of the Company.
182. Any notice required to be given by the Company to the
members or any of them and not expressly provided for by these
Articles shall be sufficiently given if given by advertisement.
183. Any notice required to be or that may be given by
advertisement shall be advertised twice in a paper published in
the place where the Registered Office of the Company is situated,
or if no paper is published there then in any newspaper published
in the City of Halifax, Nova Scotia.
184. All notices shall, with respect to any registered
shares to which persons are jointly entitled, be given to
whichever of such persons is named first in the Register, and
notice so given shall be sufficient notice to all the holders of
such shares.
185. Any notice sent by post shall be deemed to be served
on the day following that upon which the letter, envelope or
wrapper containing the same is posted, and in proving such
service it shall be sufficient to prove that the letter, envelope
or wrapper containing the notice was properly addressed and put
into the post office or post box with the postage paid on it. A
certificate in writing signed by any manager, secretary or other
officer of the Company that the letter, envelope or wrapper
containing the notice was so addressed and posted shall be
conclusive evidence thereof. Any notice transmitted by facsimile
shall be deemed to be served on the day it is transmitted, and in
proving such service it shall be sufficient to prove that the
facsimile number of the member's registered place of business was
dialed and that the notice appeared to have been transmitted to
same. A certificate in writing signed by any manager, secretary
or other officer of the Company that the facsimile number was
dialed and that the notice appeared to have been transmitted
shall be conclusive evidence thereof. The foregoing provisions of
this Clause shall not apply to a notice of a meeting of the
Directors.
186. Every person who, by operation of law, transfer or
other means whatsoever, becomes entitled to any share shall be
bound by every notice in respect of such share that before the
entry of his name and address on the Register was duly given to
the person from whom he derived his title to such share.
187. Any notice or document so served or sent by post to,
transmitted to or left at the registered address of, any member<PAGE>
in pursuance of these Articles shall, notwithstanding such member
is then deceased, and whether or not the Company has notice of
his decease, be deemed to have been served in respect of any
registered shares, whether held solely or jointly with other
persons by such member, until some other person is registered in
his stead as the holder or joint holder thereof, and such service
shall for all purposes of these Articles be deemed a sufficient
service of such notice or document on his heirs, executors or
administrators and all persons, if any, jointly interested with
him in any such share.
188. The signature to any notice to be given by the Company
may be written or printed.
189. Where a given number of days' notice or notice extending
over any other period is required to be given, the day of service
shall not, and the day on which such notice expires shall, unless
it is otherwise provided, be counted in such number of days or
other period.
INDEMNITY
190. Every Director, Manager, Secretary, treasurer and
other officer or servant of the Company shall be indemnified by
the Company against, and it shall be the duty of the Directors
out of the funds of the Company to pay, all costs, losses and
expenses that any such person incurs or becomes liable to by
reason of any contract entered into or act or thing done by him
as such officer or servant, or in any way in the discharge of his
duties, including travelling expenses; and the amount for which
such indemnity is proved shall immediately attach as a lien on
the property of the Company and shall have priority as against
the members over all other claims.
191. No Director or other officer of the Company shall be
liable for the acts, receipts, neglects or defaults of any other
Director or officer, or for joining in any receipt or other act
for conformity, or for any loss or expense happening to the
Company through the insufficiency or deficiency of title to any
property acquired by order of the Directors for or on behalf of
the Company or through the insufficiency or deficiency of any
security in or upon which any of the funds of the Company are
invested or for any loss or damage arising from the bankruptcy,
insolvency or tortious act of any person with whom any money,
securities or effect have been deposited, or for any loss
occasioned by error of judgment or oversight on his part, or for
any other loss damage or misfortune whatever that happens in the
execution of the duties of his office or in relation thereto
unless the same happens through his own dishonesty.<PAGE>
Name, Address, and Description of Subscriber(s) No. of
Shs. Taken
Dated this day of 19
Witness to the above signature(s):
<PAGE>
Exhibit B-84
(PRIVATE)
ARTICLES OF ASSOCIATION
OF
2322117 NOVA SCOTIA
LIMITED
DALEY, BLACK & MOREIRA
Barristers & Solicitors
Halifax, Nova Scotia<PAGE>
INDEX TO ARTICLES OF ASSOCIATION
Article No. Page
1. Interpretation....................................... 1
2. Table "A" not to apply .............................. 2
3. Pre-Incorporation Agreement ......................... 2
4. Directors - powers to pay for expenses of
incorporation ...................................... 2
5. May commence business at once ....................... 2
SHARES
6. Shares to be under the control of Directors ......... 2
7. May pay commission on subscription ................ 2
8. May make difference in amount of calls, etc. ........ 2
9. Instalments on Shares, by whom payable .............. 2
10. Joint holders of Shares not to exceed three ......... 2
11. Joint holders, liable severally as well as jointly
on Shares ............................................ 3
12. Joint holders - death - survivor only recognized ..... 3
13. Registered holder deemed to be absolute owner of
Shares, equities of others do not affect ............. 3
CLASSES OF SHARES
14. Shares may be issued with preferred, deferred or
other rights ......................................... 3
CERTIFICATES
15. Share Certificates - how signed ..................... 3
16. Members entitled to Share Certificate or
Certificates ....................................... 3
17. Replacement of damaged or destroyed Certificates .... 3
18. Charge for Certificates other than the first ........ 4
19. More than one holder of a Share - Certificate
issued to first name on Register ..................... 4
CALLS
20. Calls, when, how and by whom made ................... 4
21. Calls, when deemed to have been made ................ 4
22. Notice required for calls ........................... 4
23. Interest payable on amount of a call in arrears ..... 4
24. Resolution making call - matters for which Resolution
is conclusive proof ............................... 4
25. Calls may be paid in advance and interest paid on
such advances ........................................ 5<PAGE>
FORFEITURE OF SHARES
26. Failure to pay calls or instalments - notice
requiring payment served ............................. 5
27. Notice requiring payment - what it is to contain .... 5
28. Failure to comply with notice; forfeiture by
Resolution of Board of Directors ..................... 5
29. Notice of such Resolution, to whom given ............ 5
30. Forfeited Share property of Company ................. 6
31. Directors may annul forfeiture ...................... 6
32. Members still liable for amounts due, notwithstanding
forfeiture .......................................... 6
33. Certificate of forfeiture - conclusive proof ........ 6
LIEN ON SHARES
34. Company has lien on Shares (other than fully paid up)
for any amount owing the Company - includes
dividends ........................................... 6
35. May sell Shares to enforce such lien, provided notice
given .............................................. 6
36. Excess of such sale paid to member .................. 7
VALIDITY OF SALES
37. Purchaser at sale after forfeiture or to enforce lien
entitled to presume validity of sale ................ 7
TRANSFER OF SHARES
38. Transfer, who signs - not effective until registered 7
39. Form of transfer .................................... 7
40. May refuse to register transfer in certain cases .... 7
41. Transfer and Share Certificates to be left at office 8
42. Fee charged for transfer .......................... 8
43. Instrument of transfer to be kept by Company ........ 8
44. Transfer books and Register may be closed for 30
days - notice to be given ............................ 8
TRANSMISSION OF SHARES
45. Executors or Administrators of deceased member only
recognized ......................................... 9
46. Transmission clause - transfer of Shares to holder
from a deceased, bankrupt, insolvent, etc. member .... 9
SHARE WARRANTS
47. Share Warrants may be issued for fully paid up
Shares .............................................. 9<PAGE>
48. Terms and conditions of issue of Share Warrants
determined by Directors ............................ 9
INCREASE AND REDUCTION OF CAPITAL
49. May increase Capital at General Meeting by creation
of new Shares ..................................... 10
50. Such Shares may be issued on such terms and
conditions as General Meeting determines ............. 10
51. May determine when new Shares to be offered to
existing members or any other provisions respecting
their issue .......................................... 10
52. New Capital to be considered part of original
Capital and subject to Articles ...................... 10
53. May reduce Capital and Capital Redemption Reserve
Fund ............................................. 10
54. Provision for (a) consolidation and division; (b)
conversion; (c) exchange and (d) cancellation of
Shares ............................................. 10
55. Provision for (a) subdivision of Shares; (b)
conversion of unissued Shares into redeemable
Preference Shares; (c) issue of Shares without
nominal or par value; (d) conversion of nominal
or par value Shares into Shares without nominal
or par value; (e) conversion of Shares without
nominal or par value into Shares with nominal or
par value ............................................ 11
56. May redeem or purchase certain Common Shares and
Preference Shares and provide Sinking Fund ........... 12
INTEREST ON SHARE CAPITAL
57. May pay Interest on Capital raised for certain
construction purposes ............................... 12
MODIFICATION OF RIGHTS OF SHAREHOLDERS
58. May alter rights of classes of Shareholders ......... 12
SURRENDER OF SHARES
59. Surrender of Shares may be accepted on compromise ... 13
BORROWING POWERS
60. Directors may:
(a) Borrow money for the purposes of Company ........ 13
(b) Secure repayment by Mortgage, Bonds, etc. ....... 13
(c) Sign notes, cheques, bills, acceptances, etc.,
as evidence of money borrowed ................... 13<PAGE>
(d) Pledge debentures as security for loans ........ 13
61. Bonds, etc. may be made assignable free from any
equities .......................................... 14
62. Bonds, etc. may be issued at discount or premium
and with other special privileges .................... 14
MEETINGS
63. First General Meeting within eighteen months ........ 14
64. General Meetings at least once every year ........... 14
65. Definition of "Ordinary" and "Extraordinary"
Meetings .......................................... 14
66. Directors may call Special Meeting upon receipt
of a requisition ..................................... 14
67. What requisition must contain ..................... 14
68. If Directors fail to call Special Meetings,
requisitionists may ............................... 14
69. If, after Special Meeting, Confirmatory Meeting
required, Directors shall call ....................... 14
70. Requisitionists' Meeting called as any other
Meeting ........................................... 15
71. Seven days' notice for any Meeting ................. 15
72. In case of Special Resolution - two Meetings may
be called by same Notice ............................. 15
73. Omission or non-receipt of any Notice no effect
on any Resolution passed at Meeting ................ 15
PROCEEDINGS AT GENERAL MEETINGS
74. Business to be considered at General Meeting ....... 15
75. Quorum at General Meeting ........................... 15
76. No business transacted unless quorum present ...... 16
77. President may be Chairman .......................... 16
78. If no quorum in one-half hour, adjourn for one week . 16
79. Voting - how votes counted, Chairman has casting
vote ................................................ 16
80. Voting to be by show of hand - poll to be taken
if demanded .......................................... 16
81. Manner in which poll is to be taken; demand may
be withdrawn; Declaration by Chairman as to result
of vote conclusive ................................... 17
82. Meeting may be adjourned, adjourned Meeting only
to consider unfinished business ..................... 17
83. Poll demanded on question of adjournment or
election of chairman shall be taken before
Meeting adjourned ................................. 17
84. Demand of poll not to prevent continuance of
Meeting .............................................. 17<PAGE>
VOTES OF MEMBERS
85. Voting, those entitled to vote and number of votes
each entitled to .................................. 17
86. Persons entitled to vote under transmission clause .. 17
87. Joint holders, one may vote ......................... 18
88. Votes may be given personally or by proxy ........... 18
89. Instrument of proxy, what it is to contain ......... 18
90. Members of unsound mind vote by Guardian ............ 18
91. Instrument of proxy or copy filed at Company Office . 18
92. Vote by proxy valid even if authority revoked ....... 18
93. Form for instrument of proxy ........................ 19
94. Not entitled to vote if call or other liability
due on Share ......................................... 19
95. Resolutions passed by Directors and ratified by
three-fifths of members valid as if passed at
General Meeting - certain Resolutions excepted ....... 19
96. Shareholders' Resolution ........................... 19
DIRECTORS
97. Not less than one Director ......................... 20
98. Subscribers to Memorandum to be first Directors ..... 20
99. Directors may fill vacancies on Board; but
Directors not to exceed twelve ....................... 20
100. Qualification of Directors ........................ 20
101. Director may resign on one month's notice ........... 20
102. Provisions for remuneration of Directors ............ 20
103. Directors may act notwithstanding vacancy ........ 20
104. Directors may hold other office with Company ........ 20
105. Director's office ipso facto vacated if he,-
(a) is bankrupt ................................... 21
(b) is lunatic ..................................... 21
(c) ceases to hold required Shares ................. 21
(d) resigns ...................................... 21
(e) is removed by Resolution ........................ 21
106. Directors may contract with Company but must
declare interest .................................... 21
ELECTION OF DIRECTORS
107. All Directors to retire at every General Meeting ... 21
108. Retiring Directors eligible for re-election ........ 22
109. Vacancies among Directors to be filled at each
General Meeting ...................................... 22
110. If Directors not elected at General Meeting retiring
Directors continue in office ...................... 22
111. General Meeting may increase or decrease number of
Directors ........................................ 22
112. Removal of Director and appointment of successor .... 22<PAGE>
THE PRESIDENT AND VICE-PRESIDENT
113. Directors shall elect a President; powers and
duties of ............................................ 22
114. Directors may elect Vice-Presidents, one of whom may act
in absence of President ............................. 22
MANAGING DIRECTOR
115. Directors may appoint Managing Director ............ 22
116. Managing Director subject to removal as in case of
ordinary Directors ................................ 23
117. Remuneration of Managing Director ................... 23
118. Powers and duties of Managing Director .............. 23
CHAIRMAN OF THE BOARD
119. Directors may elect Chairman of the Board; powers and
duties of ........................................ 23
MEETINGS OF DIRECTORS
120. Directors may regulate their Meetings as they deem
fit ............................................... 23
121. Twenty-four hours' notice for Directors' Meeting .... 24
122. Meetings may be held, - within or without the Province:
(a) without notice after General Meeting .......... 24
(b) notice dispensed with if all present or waiver
received .......................................... 24
123. Provisions for summoning Meeting ................... 24
124. Majority of votes at Meeting decisive; President has
second or casting vote .............................. 24
125. Absence of Chairman, who to act in .................. 24
126. If quorum present, meeting competent ............... 24
127. Delegation of powers to committees .................. 24
128. Meetings of Committees - how carried on ............. 25
129. Acts of Directors and Committees valid notwithstanding
defective appointment of Directors .................. 25
130. Resolution signed by all the Directors, valid without
Meeting .......................................... 25
131. Directors may be remunerated for extra services ..... 25
REGISTERS
132. Register of Members to be kept ..................... 25
133. Branch Register of Members may be kept outside
Province .......................................... 25
134. Register of Directors to be kept ................... 25
135. Registers of holders of debentures to be kept ....... 26<PAGE>
136. Branch Debenture Registers may be kept outside
Province ............................................ 26
MINUTES
137. Directors shall keep Minutes of,-
(1) All appointments of officers .................... 26
(2) Attendance at Directors' Meetings ............... 26
(3) Orders made by Directors and Committees of
Directors ................................... 26
(4) Resolutions and proceedings of General Meetings 26
Such Minutes prima facie evidence of matters stated
therein.
POWERS OF DIRECTORS
138. General Powers of Company vested in Directors ....... 26
139. Directors have following express powers,-
(1) To carry Agreements into effect ................ 27
(2) To acquire property, rights and privileges ..... 27
(3) To pay for property, etc., by cash, shares, bonds,
etc. ........................................ 27
(4) To secure fulfilment of Contracts ............... 27
(5) To appoint and remove employees ................. 27
(6) To accept surrender of Shares ................... 27
(7) To appoint Trustees to hold Company assets ...... 27
(8) To bring and defend actions ..................... 28
(9) To refer matters to arbitration ................. 28
(10) To give receipts and releases .................. 28
(11) To delegate the borrowing and credit powers of the
Company ...................................... 28
(12) To appoint foreign Managers .................... 28
(13) To invest Company money ........................ 28
(14) To indemnify persons against loss .............. 28
(15) To give commissions to officers and other
persons ..................................... 29
(16) To make, amend and rescind Contracts ........... 29
(17) To allot and issue Shares ..................... 29
(18) To set up Reserve Fund and invest it ........... 29
(19) To make, vary and repeal By-Laws ............... 29
SOLICITORS
140. Company may appoint Solicitor, who may be Director .. 29
SECRETARY AND TREASURER
141. Shall be a Secretary and may be a Treasurer of
Company ........................................... 30
142. Secretary and Treasurer appointed by Directors ...... 30<PAGE>
143. President and Secretary same person ................. 30
144. Directors may appoint temporary substitute .......... 30
THE SEAL
145. Seal only to be affixed by Resolution of Directors
except for Certification ........................... 30
146. May have facsimile seal for use outside Province .... 30
DIVIDENDS
147. Dividends from profits, who entitled to and basis of
payment ........................................... 30
148. Directors may declare dividends and provide to whom
they shall be payable ............................ 31
149. Dividends only payable out of Capital surplus and
profits, not to bear interest ........................ 31
150. Directors' declaration of profits conclusive ........ 31
151. May pay interim dividends .......................... 31
152. May deduct debts due from member out of dividends ... 31
153. May retain dividends on which Company has lien ...... 31
154. Retention of dividend in certain cases under
Transmission Clause ................................. 31
155. Joint holders of Shares - any one of them may give
receipt for dividends ................................ 31
156. Meeting may declare dividends payable in Shares,
Bonds, Debentures or assets ......................... 32
157. Directors may capitalize undivided profits and
premiums on issue of Shares and distribute same ...... 32
158. Directors may issue fractional Certificates,
make cash payments for members' share of assets
distributed and disregard fractions less than
$5.00 ............................................. 32
159. Dividends may be paid by cheque ..................... 33
160. Notices of dividends to be given to Shareholders .... 33
161. Dividends unclaimed after one year may be used by
Company .......................................... 33
BOOKS OF ACCOUNT AND FINANCIAL STATEMENTS
162. Books of Account must be kept ....................... 33
163. Books of Account kept where Directors think fit ..... 33
164. Books open to inspection as Directors think fit
or as provided by Resolution ......................... 33
165. Profit and Loss Statement and Balance Sheet to
be laid before Ordinary General Meeting; date
such statement to be made up to and what to
contain .......................................... 33
166. Financial Statements may be accompanied by
Directors' Report and shall be signed by one<PAGE>
Director ........................................... 33
167. Copy of Financial Statements and Auditors'
Report to be sent to all entitled seven days
before Meeting ....................................... 33
AUDITORS AND AUDIT
168. Every General Meeting to appoint Auditors for
ensuing year ......................................... 34
169. First Auditor to be appointed by Directors ........... 34
170. Directors may fill casual vacancy in office of
Auditors. No Director, partner or employee of
an officer of the Company, or Body Corporate
eligible for appointment as Auditor .................. 34
171. Member of Company not interested otherwise than as
Member entitled to be Auditor ........................ 34
172. Provision for remuneration of Auditors .............. 34
173. Auditors to examine books annually .................. 34
174. Right of access of Auditors to books and accounts,
right to attend General Meeting, make explanation,
etc. .............................................. 34
175. Auditors shall make a report to Shareholders;
what report to contain; to be attached to
Financial Statements .............................. 35
176. Report of Auditors in cases of loans to Directors or
Officers .......................................... 35
177. When audited statements conclusive. ................. 35
178. Provision if only one Auditor ....................... 35
NOTICES
179. How Notices to be served ............................ 35
180. Not entitled to Notice if no registered address ..... 35
181. Holders of Share Warrant not entitled to notice ..... 36
182. When Notice by advertisement sufficient ............. 36
183. How Notice by advertisement is made ................. 36
184. Joint holders - sufficient to give notice to
first named on Register .............................. 36
185. When Notice by post deemed served .................. 36
186. Notice to registered holder binds holders who have
not had register changed ............................. 36
187. Notice valid though member deceased ................. 36
188. Signature on Notice may be written or printed ....... 37
189. How time to be counted .............................. 37
INDEMNITY
190. Indemnity of Directors and officers ................. 37
191. Directors only responsible for own dishonesty ....... 37<PAGE>
ARTICLES OF ASSOCIATION
OF
2322117 NOVA SCOTIA
LIMITED
1. In these Articles unless there is something in the
subject or context inconsistent therewith:-
"The Act" means The Companies Act, Chapter 81 of the
Revised Statutes of Nova Scotia, 1989, or any
amendment thereof or any successor Act.
"The Company" means the above named Company.
"The Office" means the registered office for the time
being of the Company.
"The Register" means the register of members to be
kept pursuant to the Act.
"The Registrar" means the Registrar of Joint Stock
Companies for the time being.
"Month" means calendar month.
"In writing" and "written" mean and include words
printed, lithographed, represented or reproduced in
any mode in a visible form.
"These Articles" includes these articles of
association and any modification or alteration thereof
for the time being in force.
"The Directors" or "The Board" means the Directors, or
the Director, if there is only one, for the time being
of the Company.
"Secretary" includes any person appointed to perform
the duties of Secretary temporarily.
"Dividend" includes bonus or stock dividend.
"Special Resolution" has the meaning assigned by the
Act.
Words importing the singular number include the plural
number, and vice versa.
Words importing the masculine gender include the
feminine gender.<PAGE>
Words importing persons include corporations.
2. The regulations contained in Table "A" in the First
Schedule to the Act shall not apply to the Company.
3. The Directors may enter into and carry into effect or
adopt and carry into effect any agreement or agreements from time
to time made by or with the promoters of the Company by or on
behalf of the Company with full power nevertheless from time to
time to agree to any modification of the terms of such agreement
or agreements either before or after the execution thereof.
4. The Directors may, out of any funds of the Company for
the time being in their hands, pay all expenses incurred in or
about the formation and establishment of the Company, including
the expenses of registration.
5. The business of the Company may be commenced as soon
after incorporation as the Directors think fit, and
notwithstanding that part only of the shares has been allotted.
SHARES
6. The shares shall be under the control of the
Directors, who may allot or otherwise dispose of the same to such
persons on such terms and conditions and either at a premium or
at par or as authorized by Clause 139(17) hereof and at such
times as the Directors think fit, subject nevertheless to the
provisions of these Articles.
7. The Directors may pay on behalf of the Company a
commission to any person in consideration of his subscribing or
agreeing to subscribe, whether absolutely or conditionally, for
any shares in the Company or his procuring or agreeing to procure
subscriptions for any shares in the Company, provided that such
commission paid or agreed to be paid does not exceed ten per cent
of the price at which such shares are sold.
8. The Company may make arrangements on the issue of
shares for a difference between the holders of such shares in the
amount of calls to be paid and the time of payment of such calls.
9. If by the conditions of allotment of any shares, the
whole or part of the amount or issue price thereof is payable by
instalments, every such instalment shall, when due, be paid to
the Company by the person who, for the time being, is the
registered holder of the share.
10. Shares may be registered in the names of any number of
persons, not exceeding three, as joint holders thereof.<PAGE>
11. Joint holders of a share shall be severally, as well
as jointly liable for the payment of all instalments and calls
due in respect of such share.
12. On the death of one or more joint holders of a share
the survivor or survivors of them shall alone be recognized by
the Company as having title to the share.
13. Save as herein otherwise provided, the Company may
treat the registered holder of any share as the absolute owner
thereof and accordingly shall not, except as ordered by a court
of competent jurisdiction or as by statute required, be bound to
recognize any equitable or other claim to or interest in such
share on the part of any other person.
CLASSES OF SHARES
14. Subject to the provisions, if any, in that behalf of
the Memorandum of Association and without prejudice to any
special rights previously conferred on the holders of existing
shares, any share may be issued with such preferred, deferred or
other special rights or such restrictions, whether in regard to
dividends, voting, return of share capital or otherwise as the
Company from time to time in General Meeting determines, and any
preference share with the sanction of a resolution of the Company
in General Meeting, may be issued on terms that it is or at the
option of the Company is liable to be redeemed or purchased by
the Company.
15. Certificates of title to shares shall be signed by the
President or Vice-President or a Director and either the
Secretary or an Assistant Secretary or by such other persons as
the Directors authorize. If the President and Secretary of the
Company are the same person, certificates of title shall be
signed by that person alone. The signature of the President or
Vice-President may be engraved, lithographed or printed upon the
certificates or any one or more of them, and any certificates
bearing such engraved, lithographed or printed signature of the
President or Vice-President, when signed by the Secretary or an
Assistant Secretary or by such other person as the Directors
authorize, shall be valid and binding upon the Company.
16. Every member shall be entitled to one certificate for
all his shares, or to several certificates each for one or more
of such shares.
17. If any certificate becomes worn out or defaced, then
upon production thereof to the Directors, they may order the same
to be cancelled and may issue a new certificate in lieu thereof;
and if any certificate is lost or destroyed, then upon proof<PAGE>
thereof to the satisfaction of the Directors, and on the giving
of such indemnity as the Directors deem adequate, a new
certificate in lieu thereof shall be given to the persons
entitled to such lost or destroyed certificate.
18. The sum of twenty-five cents, or such sum as the
Directors determine, shall be paid to the Company for every
certificate issued in respect of any share or shares except the
first.
19. The certificates of shares registered in the names of
two or more persons shall be delivered to the person first named
on the Register.
CALLS
20. The Directors may from time to time, in their
discretion, make calls upon the registered holders of shares in
respect of all amounts unpaid on the shares held by them
respectively and not by the conditions of allotment thereof made
payable at fixed times, and each registered holder shall pay the
amount of every call so made on him to the person and at the time
and place appointed by the Directors. A call may be made payable
by instalments.
21. A call shall be deemed to have been made at the time
when the resolution of the Directors authorizing such call was
passed.
22. At least fourteen days' notice of any call shall be
given, and such notice shall specify the time and place at which
and the person to whom such call shall be paid.
23. If the sum payable in respect of any call or
instalment is not paid on or before the day appointed for payment
thereof, the registered holder for the time being of the share on
which the call has been made or the instalment is due shall be
liable to pay interest for the same at the rate of six per cent
per annum from the day appointed for the payment thereof up to
the time of the actual payment, but the Directors may waive
payment of that interest either wholly or in part.
24. On the trial or hearing of any action for the recovery
of any money due for any call it shall be sufficient to prove
that the name of the member sued is entered on the Register as
the holder, or one of the holders, of the share or shares in
respect of which such debt accrued, that the resolution making
the call is duly recorded in the Minute Book and that Notice of
such call was duly given to the member sued in pursuance of these
Articles, and it shall not be necessary to prove the appointment<PAGE>
of the Directors who made such call nor any other matters
whatsoever, but the proof of the matters aforesaid shall be
conclusive evidence of the debt.
25. The Directors may, if they think fit, receive from any
member willing to advance the same, all or any part of the money
payable upon the shares held by him beyond the sums actually
called for; and upon the money so paid in advance or so much
thereof as from time to time exceeds the amount of the calls then
made or installments then due upon the shares in respect of which
such advance has been made, the Company may pay interest at such
rate, not exceeding six per cent per annum, as the member paying
such sum in advance and the Directors agree upon, or the
Directors may agree with such member that he may participate in
profits upon the amount so paid in advance.
FORFEITURE OF SHARES
26. If any member fails to pay any calls, instalment or
other sum due on any share registered in his name on or before
the day appointed for the payment of the same, the Directors may
at any time thereafter, during such time as the call, instalment
or other sum remains unpaid, serve a notice on such member
requiring him to pay the same, together with any interest that
has accrued thereon, and all expenses that have been incurred by
the Company by reason of such non-payment.
27. The notice shall name a day (not being less than
fourteen days after the date of the notice) and a place or places
on and at which such call, instalment or other sum and such
interest and expenses as aforesaid are to be paid. The notice
shall also state that in the event of non-payment on or before
the day and at the place or one of the places so named, the
shares in respect of which the call was made or the instalment or
other sum is due will be liable to be forfeited.
28. If the requisitions of any such notice as aforesaid
are not complied with, any shares in respect of which such notice
has been given may at any time thereafter, before payment of all
calls, instalments or other sums, interest and expenses due in
respect thereof, be forfeited by a resolution of the Directors to
that effect. Such forfeiture shall include all dividends
declared in respect of the forfeited shares and not actually paid
before the forfeiture.
29. When any share has been so forfeited, notice of the
resolution shall be given to the member or members in whose name
it stood immediately before the forfeiture, and an entry of the
forfeiture, with the date thereof, shall forthwith be made in the
Register.<PAGE>
30. Any share so forfeited shall be deemed to be the
property of the Company, and the Directors may sell, re-allot or
otherwise dispose of the same in such manner as they think fit.
31. The Directors, at any time before any share so
forfeited has been sold, re-allotted or otherwise disposed of,
may annul the forfeiture thereof upon such conditions as they
think fit.
32. Any member whose shares have been forfeited shall
nevertheless be liable to pay and shall forthwith pay to the
Company all calls, instalments or other sums and interest and
expenses owing upon or in respect of such shares at the time of
the forfeiture, together with interest thereon at the rate of six
per cent per annum, from time of forfeiture until payment, and
the Directors may enforce the payment thereof if they think fit
but shall not be obliged to do so.
33. A certificate in writing under the hands of one of the
Directors and countersigned by the Secretary, or if the only
Director and the Secretary are the same person, a certificate in
writing under the hand of such person, that a share has been duly
forfeited in pursuance of these Articles and stating the time
when it was forfeited shall be conclusive evidence of the facts
therein stated as against all persons who would have been
entitled to the share but for such forfeiture; and such
certificate, together with the receipt of the Company for the
price of such share, shall constitute a good title to such share.
LIEN ON SHARES
34. The Company shall have a first and paramount lien upon
all shares other than fully paid up shares registered in the name
of each member (whether solely or jointly with others), for his
debts, liabilities and other engagements, solely or jointly with
any other person, to or with the Company, whether the period for
the payment, fulfillment or discharge thereof has actually
arrived or not, and no equitable interest in any share shall be
created except upon the condition that Clause 13 of these
Articles is to have full effect. Any such lien shall extend to
all dividends from time to time declared in respect of such
shares. Unless otherwise agreed, the registration of a transfer
of shares shall operate as a waiver of the Company's lien, if
any, on such shares.
35. For the purpose of enforcing such lien, the Directors
may sell the shares subject thereto in such manner as they think
fit; but no sale shall be made until notice in writing of the
intention to sell has been given to such member or his executors
or administrators and default has been made by him or them in the<PAGE>
payment, fulfillment or discharge of such debts, liabilities or
engagements for seven days after such notice.
36. The net proceeds of any such sale after payment of
costs thereof shall be applied in or towards the satisfaction of
such debts, liabilities or engagements, and the residue, if any,
shall be paid to such member or his executors, administrators or
assigns.
VALIDITY OF SALES
37. Upon any sale, after forfeiture or for enforcing a
lien, in purported exercise of the powers given by these
Articles, the Directors may cause the purchaser's name to be
entered in the register in respect of the shares sold, and the
purchaser shall not be bound to see to the regularity of the
proceedings or to the application of the purchase money, and
after his name has been entered in the register in respect of
such shares the validity of the sale shall not be impeached by
any person, and the remedy of any person aggrieved by the sale
shall be in damages only and against the Company exclusively.
TRANSFER OF SHARES
38. The instrument of transfer of any share in the Company
shall be signed by the transferor, and the transferor shall be
deemed to remain the holder of such share until the name of the
transferee is entered in the Register in respect thereof.
39. Shares in the Company may be transferred in the
following
form, or as near thereto as circumstances permit or require:-
"For value received hereby sell, assign
and transfer unto
Shares of the Common(or Preferred) Stock represented by the
within Certificate, and do hereby irrevocably constitute and
appoint _______________________________ Attorney to transfer the
stock on the books of the within named Corporation with full
power of substitution in the premises.
Dated 19
Witness: "
40. (a) The Directors may decline to register any transfer
of shares upon which the Company has a lien, and they may decline<PAGE>
to register any transfer of shares that are not fully paid up,
without assigning any reason therefor.
(b) No transfer of shares shall be registered unless
and until the Directors have by a resolution approved the
transfer of such shares and the registration of the transfer and
the Directors shall be under no obligation to give such approval
or to give any reason for withholding the same.
(c) The number of shareholders of the Company,
exclusive of persons who are in its employment or the employment
of an affiliate of the Company and exclusive of persons who,
having been formerly in the employment of the Company or the
employment of an affiliate of the Company, were, while in that
employment, and have continued after termination of that
employment to be, shareholders of the Company, shall not exceed
fifty (50) in number, two or more persons who are the joint
registered owners of one or more shares being counted as one
shareholder.
(d) The Company shall not invite the public to
subscribe for any shares, debentures or debenture stock or other
securities of the Company.
41. Every instrument of transfer shall be left at the
office for registration, accompanied by the certificate of the
shares to be transferred and such other evidence as the Company
requires to prove the title of the transferor or his right to
transfer the shares.
42. A fee not exceeding fifty cents may be charged for
each transfer and shall, if required by the Directors, be paid
before the registration thereof.
43. Every instrument of transfer shall, after the
registration thereof, remain in the custody of the Company, but
any instrument of transfer that the Directors decline to register
shall, except in the case of fraud, be returned to the person
depositing the same.
44. The transfer books and register of members may be
closed during such time as the Directors think fit, not exceeding
in the whole thirty days in each year, notice of which shall be
given by advertisement in some newspaper circulating in the
district in which the registered office of the Company is
situate.<PAGE>
TRANSMISSION OF SHARES
45. The executors or administrators of a deceased member
(not being one of several joint holders) shall be the only
persons recognized by the Company as having any title to the
shares registered in the name of such member; in the case of a
share registered in the names of two or more joint holders, the
survivor or survivors or the executors or administrators of the
deceased survivor shall be the only persons recognized by the
Company as having any title to, or interest in, such share.
46. Any person becoming entitled to shares in consequence
of the death or insolvency or bankruptcy of any member, or in any
other way than by allotment or transfer, upon producing such
evidence of his being entitled to act in the capacity claimed, or
of his title, as the Directors think sufficient, may, with the
consent of the Directors, (which they shall not be obliged to
give) be registered as a member in respect of such shares or may,
without being registered, transfer such shares subject to the
provisions of these Articles respecting the transfer of shares.
This clause is hereinafter referred to as "the transmission
clause". The Directors shall, as in these Articles provided,
have the same right to refuse to register a person entitled by
transmission to any shares or his nominee, as if he were the
transferee named in an ordinary transfer presented for
registration.
SHARE WARRANTS
47. The Company, with respect to fully paid-up Shares, may
issue under its Common Seal warrants (hereinafter called "Share
Warrants") stating that the bearer is entitled to the shares
therein specified and may provide, by coupons or otherwise, for
the payment of future dividends on the shares included in such
warrants.
48. The Directors may determine, and from time to time
vary, the conditions upon which share warrants are issued and, in
particular, upon which a new share warrant or coupon will be
issued in the place of one worn out, defaced, lost or destroyed,
or upon which the bearer of a share warrant is entitled to attend
and vote at General Meetings or upon which a share warrant may be
surrendered and the name of the bearer entered in the register in
respect of the shares therein specified. Subject to such
conditions and to these Articles, the bearer of a share warrant
shall be a member to the full extent. The holder of a share
warrant shall be subject to the conditions for the time being in
force, whether made before or after the issue of such warrant.<PAGE>
INCREASE AND REDUCTION OF CAPITAL
49. The Company in General Meeting may, from time to time,
increase the capital by the creation or issue of new shares of
such amount as it thinks expedient.
50. The new shares may be issued upon such terms and
conditions and with such preferred, deferred or other special
rights or such restrictions annexed thereto as the General
Meeting resolving upon the creation thereof by Resolution
determines, whether with regard to dividends, voting, return of
capital, participation in the distribution of excess assets, or
otherwise.
51. The Company in General Meeting may, before the issue
of any new shares, determine that such shares, or any of them,
shall be offered in the first instance to all the then members or
to the members of any class, in proportion to the amount of the
capital held by them, or make any other provisions as to the
issue and allotment of the new shares; but in default of any such
determination, or so far as the same shall not extend, the new
shares may be dealt with as if they formed part of the shares in
the original capital.
52. Except so far as otherwise provided by the conditions
of issue or by these Articles, any capital raised by the creation
of new shares shall be considered as part of the original
ordinary capital and shall be subject to the provisions herein
contained with reference to the payment of calls and instalments
and transmissions, forfeiture, lien and otherwise.
53. The Company may from time to time, by Special
Resolution, reduce its share capital and any capital redemption
reserve fund in any manner and with and subject to any incident
authorized and consent required by law.
ALTERATION OF CAPITAL
54. The Company may from time to time in General Meeting,-
(a) Consolidate and divide all or any of its share
capital into shares of larger amount than its
existing shares;
(b) Convert all or any of its paid-up shares into
stock and reconvert that stock into paid-up shares
of any denomination;
(c) Exchange shares of one denomination for another;<PAGE>
(d) Cancel shares that, at the date of the passing of
the Resolution in that behalf, have not been taken
or agreed to be taken by any person and diminish
the amount of its share capital by the amount of
the shares so cancelled.
55. The Company may from time to time in General Meeting
and by Special Resolution,-
(a) Subdivide its shares or any of them into shares of
smaller amount than is fixed by the Memorandum of
Association, so, however, that in the subdivision
the proportion between the amount paid and the
amount, if any, unpaid on each reduced share shall
be the same as it was in the case of the share
from which the reduced share is derived. The
Special Resolution whereby any share is subdivided
may determine that, as between the holders of the
shares resulting from such subdivision, one or
more of such shares shall have some preference or
special advantage as regards dividends, capital,
voting, or otherwise, over or as compared with the
other shares;
(b) Convert any part of its issued or unissued share
capital into Preference Shares redeemable or
purchasable by the Company in the manner provided
by the Act;
(c) Provide for the issue of shares without nominal or
par value;
(d) Except in the case of Preferred Shares, convert
all or any of its previously authorized unissued
or issued and fully paid-up shares with nominal or
par value into the same number of shares without
nominal or par value and reduce, maintain or
increase accordingly its liability on any of its
shares so converted; PROVIDED, however, that the
power to reduce its liability on any of its shares
so converted where it results in a reduction of
capital may only be exercised subject to
confirmation by the Court as provided by the Act.
(e) Convert all or any of its previously authorized
unissued or issued and fully paid up shares
without nominal or par value into the same or a
different number of shares with nominal or par
value. For such purpose the shares issued without
nominal or par value and replaced by shares with<PAGE>
nominal or par value shall be considered as fully
paid, but their aggregate par value shall not
exceed the value of the net assets of the Company
as represented by the shares without par value
issued before the conversion.
56. Subject to the provisions of the Act as from time to
time in force, the Company may redeem or purchase any Common
Shares and may redeem or purchase any Preference Shares that by
the provisions from time to time attaching thereto may be
redeemed or purchased by the Company. The Directors, subject to
the provisions and conditions attaching from time to time to such
Preference Shares, may determine the manner in which and the
terms on which such Preference Shares may be redeemed or
purchased. The Directors may from time to time provide for a
sinking fund for the redemption or purchase of Preference Shares
of any class or classes on such terms as the Directors determine.
INTEREST ON SHARE CAPITAL
57. The Company may pay interest at a rate not exceeding
six per cent per annum on share capital issued and paid up for
the purpose of raising money to defray the expenses of the
construction of any works or buildings or the provision of any
plant that cannot be made profitable for a lengthy period; such
interest may be paid for such period and may be charged to
capital as part of the cost of construction of the work or
building, or the provision of plant. The payment of the interest
shall not operate as a reduction of the amount paid up on the
shares in respect of which it is paid. The financial statements
of the Company shall show full particulars of the payment during
the period to which the statements relate, in accordance with the
provisions of the Act.
MODIFICATION OF RIGHTS OF SHAREHOLDERS
58. If at any time the share capital of the Company, by
reason of the issue of preference shares or otherwise, is divided
into different classes of shares, all or any of the rights and
privileges attached to any such class may be modified, altered,
varied, affected, commuted, abrogated or otherwise dealt with by
agreement between the Company and any person purporting to
contract on behalf of that class, provided such agreement is
ratified in writing by the holders of at least three-fourths in
number of the issued shares of the class or by a Resolution
passed and confirmed by the same majority and in the same manner
as a Special Resolution at Extraordinary General Meetings of the
holders of shares of that class, and all the provisions
hereinafter contained as to General Meetings shall, mutatis
mutandis, apply to every such meeting, but so that the quorum <PAGE>
thereof shall be members holding, or representing by proxy, one-
fifth in number of the issued shares of the class. This clause
is not by implication to curtail the power of modification that
the Company would have if this clause were omitted.
SURRENDER OF SHARES
59. The Directors may accept the surrender of any share by
way of compromise of any question as to the holder's being
properly registered in respect thereof. Any share so surrendered
may be disposed of in the same manner as a forfeited share.
BORROWING POWERS
60. The Directors on behalf of the Company may from time
to time in their discretion:
(a) Raise or borrow money for the purposes of the
Company or any of them;
(b) Secure the repayment of money so raised or
borrowed in such manner and upon such terms and
conditions in all respects as they think fit, and
in particular by the execution and delivery of
mortgages of the Company's real or personal
property, or by the issue of bonds, debentures or
debenture stock of the Company secured by mortgage
or otherwise or charged upon all or any part of
the property of the Company, both present and
future, including its uncalled capital for the
time being;
Provided that the power to execute mortgages of
the Company's real or personal property and the
power to issue bonds or debentures or debenture
stock secured by mortgage or otherwise shall not
be exercised by the Directors except with the
sanction of a Special Resolution of the Company
previously passed and (where confirmation is
necessary) confirmed in General Meeting;
(c) Sign or endorse bills, notes, acceptances,
cheques, contracts and other evidence of or
securities for money borrowed or to be borrowed
for the purposes aforesaid;
(d) Pledge debentures as security for loans.<PAGE>
61. Bonds, debentures, debenture stock and other
securities may be made assignable, free from any equities between
the Company and the person to whom the same are issued.
62. Any bonds, debentures, debenture stock or other
securities may be issued at a discount, premium or otherwise and
with any special privileges as to redemption, surrender,
drawings, allotment of shares, attending and voting at General
Meetings of the Company, appointment of Directors and otherwise.
MEETINGS
63. The first General Meeting of the Company shall be held
within eighteen months of the date the Company is incorporated at
such time and place as is determined by the Directors.
64. General Meetings shall be held at least once in every
calendar year, at such time and place as are determined by the
Directors.
65. The General Meetings referred to in the next preceding
clause shall be called Ordinary General Meetings; and all other
meetings of the Company shall be called Special or Extraordinary
General Meetings.
66. The Directors may, whenever they think fit, convene a
Special General Meeting, and upon the requisition of members of
the Company holding not less than one-tenth of the total voting
rights of all the members having at the date of the deposit of
the requisition a right to vote at General Meetings of the
Company and in respect of whose shares all calls or other sums
then due have been paid, they shall forthwith proceed to convene
a Special or Extraordinary General Meeting of the Company, to be
held at such time and place as are determined by the Directors.
67. The requisition shall state the objects of the meeting
required, shall be signed by the members making the same, and
shall be deposited at the registered or other office of the
Company and may consist of several documents in like form each
signed by one or more of the requisitionists.
68. If the Directors do not proceed to cause a meeting to
be held within twenty-one days from the date of the deposit of
the requisition, the requisitionists, or a majority of them in
value, may themselves convene the meeting, but any meeting so
convened shall not be held after three months from the date of
such deposit.
69. If at any such meeting a resolution requiring
confirmation at another meeting is passed, the Directors shall<PAGE>
forthwith convene a future Special General Meeting for the
purpose of considering such resolution, and, if thought fit, of
confirming it as a Special Resolution; and if the Directors do
not convene the meeting within seven days from the date of the
passing of the first resolution, the requisitionists, or a
majority of them in value, may themselves convene the meeting.
70. Any meeting convened under the foregoing provisions by
the requisitionists shall be convened in the same manner as
nearly as possible as that in which meetings are to be convened
by Directors.
71. At least seven clear days' notice, specifying the
place, day and hour of meeting and, in case of special business,
the general nature of the business shall be given to all members
entitled to vote at such meeting, either by advertisement in a
newspaper published in Halifax, N.S., or by notice sent by post,
transmitted by facsimile or otherwise served as hereinafter
provided, and with the consent in writing of all the members a
meeting may be convened on short notice, and in any manner they
think fit, or if all the members are present at a meeting either
in person or by proxy, notice thereof may be waived.
72. Where it is proposed to pass a Special Resolution, the
two meetings may be convened by one and the same notice, and it
shall be no objection to such notice that it only convenes the
second meeting contingently upon the resolution's being passed by
the requisite majority at the first meeting.
73. The accidental omission to give any such notice to any
of the members or the non-receipt of any such notice by any
member shall not invalidate any resolution passed at any such
meeting.
PROCEEDINGS AT GENERAL MEETINGS
74. The business of an Ordinary General Meeting shall be
to receive and consider the profit and loss statement, the
balance sheet and the reports of the Directors and of the
auditors, to elect Directors in the place of those retiring and
to transact any other business that under these Articles ought to
be transacted at an Ordinary General Meeting.
75. One member personally present and entitled to vote
shall be a quorum for a General Meeting for the choice of a
chairman and for the adjournment of the meeting. For all other
purposes the quorum for a General Meeting shall be members
personally present and entitled to vote not being less than one
in number and holding or representing by proxy not less than one-
tenth in number of such of the issued shares of the Company as<PAGE>
confer upon the holders thereof the right to vote at such
meeting. Provided that a corporation that is a member of the
Company and that has duly appointed a representative under the
Act who is personally present at the meeting shall for the
purposes of this clause be considered as if personally present
thereat.
76. No business shall be transacted at any General Meeting
unless the quorum requisite is present at the commencement of the
business.
77. The President of the Company shall take the chair at
every General Meeting, or if there is no President, or if at any
meeting he is not present within fifteen minutes after the time
appointed for holding such meeting, the members shall choose
another Director as chairman, and if no Director is present or if
all the Directors present decline to take the chair, then the
members present shall choose one of their number to be chairman.
78. If within half an hour from the time appointed for the
meeting a quorum is not present, the meeting, if convened upon
such requisition as aforesaid, shall be dissolved, but in any
other case it shall stand adjourned to the same day in the next
week, at the same time and place, and if at such adjourned
meeting a quorum is not present those members who are present
shall be a quorum and may transact the business for which the
meeting was called.
79. Every question submitted to a meeting shall be
decided, in the first instance, by show of hands, and in the case
of an equality of votes the chairman shall, both on show of hands
and at the poll, have a casting vote in addition to the vote or
votes to which he is entitled as a member.
80. At any General Meeting a resolution put to the meeting
shall be decided by a show of hands, unless a poll is (before or
on the declaration of the result of a show of hands) demanded by
the chairman or by at least five members present and entitled to
vote at the meeting or by a member or members holding or
representing by proxy or entitled to vote in respect of at least
one-tenth in number of the issued shares of the Company as confer
upon the holders thereof the right to vote at such meeting, and
unless a poll is so demanded a declaration by the chairman that a
resolution has been carried, or carried by a particular majority,
or lost, or not carried by a particular majority, and an entry to
that effect in the book of proceedings of the Company shall be
conclusive evidence of the fact without proof of the number or
proportion of the votes recorded in favour or against such
resolution. A corporation that is a member of the Company and
that has duly appointed a representative under the Act who is<PAGE>
personally present at the meeting shall, for the purposes of this
Clause, be considered as if personally present thereat.
81. If a poll is demanded as aforesaid, it shall be taken
in such manner and at such time and place as the chairman of the
meeting directs, and either at once or after an interval or
adjournment or otherwise, and the result of the poll shall be
deemed to be the resolution of the meeting at which the poll was
demanded. The demand of a poll may be withdrawn. In case of a
dispute as to the admission or rejection of a vote, the chairman
shall determine the same, and such determination, made in good
faith, shall be final and conclusive.
82. The chairman of a General Meeting may, with the
consent of the meeting, adjourn the same from time to time and
from place to place, but no business shall be transacted at any
adjourned meeting other than the business left unfinished at the
meeting from which the adjournment took place.
83. Any poll demanded on the election of a chairman of a
meeting or on any question of adjournment shall be taken at the
meeting and without adjournment.
84. The demand of a poll shall not prevent the continuance
of a meeting for the transaction of any other business than the
question on which a poll has been demanded.
VOTES OF MEMBERS
85. Subject to the provisions applicable to any shares
issued under conditions limiting or excluding the right of
holders thereof to vote at General Meetings, on a show of hands
every member present in person shall have one vote, and upon a
poll every member present in person or by proxy shall have one
vote for every share held by him. Where a corporation being a
member is present by a proxy who is not a member or by a
representative duly authorized under the Act, such proxy or
representative shall be entitled to vote for such corporation
either on a show of hands or at a poll.
86. Any person entitled under the transmission clause to
transfer any shares may vote at any General Meeting in respect
thereof in the same manner as if he were the registered holder of
such shares, provided that forty-eight hours at least before the
time of holding the meeting or adjourned meeting, as the case may
be, at which he proposes to vote he has satisfied the Directors
of his right to transfer such shares, unless the Directors have
previously admitted his right to vote in respect thereof.<PAGE>
87. Where there are joint registered holders of any shares
any one of such persons may vote at any meeting, either
personally or by proxy, in respect of such shares as if he were
solely entitled thereto; and if more than one of such joint
holders is present at any meeting, personally or by proxy, the
one of such persons so present whose name stands first on the
register in respect of such shares shall alone be entitled to
vote in respect thereof. Several executors or administrators of
a deceased member in whose name any share stands shall for the
purposes of this clause be deemed joint holders thereof.
88. Votes may be given either personally or by proxy or in
the case of a corporation by a representative duly authorized
under the Act.
89. The instrument appointing a proxy shall be in writing
under the hand of the appointer or of his attorney duly
authorized in writing or, if such appointer is a corporation,
under its common seal. No person shall be appointed a proxy who
is not a member of the Company and qualified to vote, save that a
corporation being a member of the Company may appoint as its
proxy any person whether such person is a member of the Company
or not. Holders of share warrants shall not be entitled to vote
by proxy in respect of the shares included in such warrants
unless otherwise expressed in such warrants.
90. A member of unsound mind in respect of whom an order
of incompetency has been made by any Court may vote by his
guardian or other person in the nature of a guardian appointed by
that Court, and any such guardian or other person may vote by
proxy.
91. The instrument appointing a proxy and the power of
attorney or other authority, if any, under which it is signed or
a notarially certified copy of that power or authority or a
facsimile copy thereof shall be deposited at the Office of the
Company not less than forty-eight hours before the person named
in such instrument purports to vote in respect thereof.
92. A vote given in accordance with the terms of an
instrument of proxy shall be valid notwithstanding the previous
death of the principal, or revocation of the proxy, or transfer
of the share in respect of which the vote is given, provided no
intimation in writing of the death, revocation, or transfer has
been received before the meeting at the Office of the Company or
by the chairman of the meeting before the vote is given.<PAGE>
93. Every instrument of proxy, whether for a specified
meeting or otherwise, shall, as nearly as circumstances will
admit, be in the form or to the effect following:-
I, of
in the County of
, being a member of
Limited, hereby appoint of
or failing him
of as
my proxy, to vote
for me and on my behalf at the General (or Special General, as
the case may be) Meeting of the Company to be held on the
day of and at any adjournment thereof, or
at any meeting of the Company that is held within three months
from the date hereof.
As witness my hand this day of 19
Witness:
______________________________
94. No member is entitled to be present or to vote on any
question either personally or by proxy or as proxy for another
member at any General Meeting, or upon a poll, or be reckoned in
a quorum while any call or other sum is due and payable to the
Company in respect of any of the shares of such member.
95. Any resolution passed by the Directors of which notice
has been given to the members in the manner in which notices are
hereinafter directed to be given and that, within one month after
it has been passed, has been ratified and confirmed in writing by
members entitled at a poll to three-fifths of the votes, shall be
as valid and effectual as a resolution of a General Meeting; but
this clause shall not apply to a resolution for winding up the
Company or to a resolution passed in respect of any matter that
by statute or these Articles is be dealt with by Special
Resolution.
96. A resolution, including a special resolution, in
writing and signed, either by original signature or facsimile
copy thereof, by every shareholder who would be entitled to vote
on the resolution at a meeting is as valid as if it were passed
by such shareholders at a meeting and satisfied all the
requirements of the Act respecting meetings of Shareholders. A <PAGE>
copy of every such resolution shall be kept with the minutes of
proceedings of Shareholders.
DIRECTORS
97. Unless otherwise determined by a General Meeting the
number of the Directors shall not be less than one nor more than
twelve.
98. Notwithstanding anything herein contained, the
subscribers to the Memorandum of Association shall be the first
Directors of the Company.
99. The Directors, from time to time, may appoint any
other person or persons to be a Director or Directors, either to
fill a casual vacancy or as an addition, but so that the total
number of Directors shall not at any time exceed the maximum
number fixed as above, and no such appointment shall be effective
unless two-thirds of the Directors concur therein.
100. It shall not be necessary for a person to hold a share
in the Company in order to qualify as a Director.
101. A Director may retire from his office upon giving one
month's notice in writing to the Company of his intention so to
do, and such resignation shall take effect upon the expiration of
such notice or its earlier acceptance.
102. The Directors shall be paid out of the funds of the
Company by way of remuneration for their service such sums, if
any, as the Company in General Meeting determines, and such
remuneration shall be divided among them in such proportions and
manner as the Directors determine; the Directors may also be paid
their reasonable travelling and hotel and other expenses incurred
in consequence of their attendance at Board meetings and
otherwise in the execution of their duties as Directors.
103. The continuing Directors may act notwithstanding any
vacancy in their body; but in the event that at any time there
are no Directors, the shareholders may fill the vacancy or
vacancies.
104. A Director may hold any other office or place of
profit under the Company in conjunction with the office of
Director and on such terms as to remuneration and otherwise as
the Directors determine.
105. The office of a Director shall ipso facto be vacated:-<PAGE>
(a) if he becomes bankrupt or insolvent or suspends
payment, or compounds with creditors, or makes a
general assignment for the benefit of his creditors,
or
(b) if he is found to be incompetent or becomes of
unsound mind, or
(c) if he ceases to hold the required number of shares
to qualify him for office or does not acquire the same
within three months after election or appointment, or
(d) subject to Clause 101, if by notice in writing to
the Company he resigns his office, or
(e) if he is removed by resolution of the Company as
provided in Clause 112 hereof.
106. No Director shall be disqualified by his office from
contracting with the Company, either as vendor, purchaser or
otherwise, nor shall any such contract, or any contract or
arrangement entered by or on behalf of the Company in which any
Director is in any way interested, be avoided nor shall any
Director so contracting or being so interested be liable to
account to the Company for any profit realized by any such
contract or arrangement, by reason of such Director's holding
that office or of the fiduciary relation hereby established, but
he shall disclose the nature of his interest at the Meeting of
Directors at which the contract or arrangement is made, or if his
interest does not then exist or in any other case, at the first
meeting of the Directors after the acquisition of his interest,
and if there is one or more Director who is not interested in
such contract or arrangement, any interested Director shall, as a
Director, not vote in respect of any contract or arrangement in
which he is so interested, and should he so vote, his vote shall
not be counted; but this prohibition may at any time or times be
suspended or relaxed to any extent by a General Meeting, and such
prohibition shall not apply to any contract by or on behalf of
the Company to give to the Directors or any of them any security
for advances or by way of indemnity or to the agreement or
agreements referred to in Clause 3 or to any modification of such
agreement or agreements or to any agreement or agreements
substituted therefor or any matter arising out of any such
agreement or agreements.
ELECTION OF DIRECTORS
107. At the first General Meeting to be held in the year
following incorporation and at every succeeding Ordinary General
Meeting all the Directors shall retire from office. A retiring <PAGE>
Director shall retain office until the dissolution of the meeting
at which his successor is elected.
108. A retiring Director is eligible for re-election.
109. The Company at every Ordinary General Meeting shall
fill up the vacant offices by electing a like number of persons
to be Directors, unless it is determined at such meeting to
reduce the number of Directors.
110. If, at any General Meeting at which an election of
Directors ought to take place, no such election takes place the
retiring Directors shall continue in office until the Ordinary
General Meeting in the next year, and so on from year to year
until their places are filled up unless it is determined at such
meeting to reduce the number of Directors.
111. The Company in General Meeting may from time to time
increase or reduce the number of Directors and may determine or
alter their qualifications.
112. The Company in General Meeting may remove any Director
before the expiration of his period of office and appoint another
qualified person in his stead; the person so appointed shall hold
office during such time only as the Director in whose place he is
appointed would have held the same if he had not been removed.
THE PRESIDENT AND VICE-PRESIDENTS
113. The Directors may elect one of their number to be the
President of the Company and may determine the period for which
he is to hold office. The President shall have general
supervision of the business of the Company and shall perform such
duties as are assigned to him by the Board from time to time.
114. The Directors may also elect from their number one or
more persons to be Vice-President and may determine the period
for which such person or persons shall hold office. Any Vice-
President shall, subject to the directions of the Board, perform
the duties of the President during the absence, illness or
incapacity of the President or during such period as the
President requests him so to do.
MANAGING DIRECTOR
115. The Directors from time to time may appoint one or
more of their body to be Managing Director or Managing Directors
of the Company, either for a fixed term or without any limitation<PAGE>
as to the period for which he is or they are to hold such office,
and may remove or dismiss him or them from office and appoint
another or others in his or their places.
116. A Managing Director shall, subject to the provisions
of any contract between him and the Company, be subject to the
same provisions as to resignation and removal as the Directors of
the Company, and if he ceases to hold the office of Director he
shall ipso facto and immediately cease to be Managing Director.
117. The remuneration of a Managing Director shall from
time to time be fixed by the Directors and may be by way of
salary, or commission, or participation in profits, or by any or
all these modes.
118. The Directors from time to time may entrust to and
confer upon a Managing Director for the time being such of the
powers exercisable by the Directors as they think fit and may
confer such powers for such time, and to be exercised for such
objects and purposes and upon such terms and conditions and with
such restrictions, as they think expedient, and they may confer
such powers, either collaterally with, or to the exclusion of and
in substitution for, all or any of the powers of the Directors in
that behalf and may from time to time revoke, withdraw, alter or
vary all or any of such powers.
CHAIRMAN OF THE BOARD
119. The Directors may also elect one of their number to be
Chairman of the Board and may determine the period during which
he is to hold office. He shall preside, when present, at
meetings of the Board and shall perform such duties and receive
such special remuneration as the Board from time to time
provides.
MEETINGS OF DIRECTORS
120. The Directors may meet together for the dispatch of
business, may adjourn or otherwise regulate their meetings and
proceedings as they think fit, and may determine the quorum
necessary for the transaction of business. Unless otherwise
determined by the Directors, a quorum shall be one Director.
Where all of the Directors of the Company consent thereto,
meetings of the Board of Directors may be held by means of
telephone or other communications equipment so that all persons
participating in the meeting can hear each other, and when
Directors so participate in a meeting they shall be deemed to be
present in person at that meeting. Such consent may be given in
such a way that it is applicable to all meetings of the Board of
Directors. <PAGE>
121. Meetings of Directors may be held, unless otherwise
provided, on twenty-four hours' notice. Such notice may be
delivered or mailed or telegraphed or telephoned or transmitted
by facsimile or otherwise communicated to each Director.
122. Meetings of Directors may be held either within or
without the Province of Nova Scotia, and the Directors may from
time to time make arrangements relating to the time and place of
holding Directors' meetings, the notices to be given thereof and
what meetings may be held without notice. Unless otherwise
provided by such arrangements:-
(a) A meeting of Directors may be held at the close of
every Ordinary General Meeting of the Company without
notice;
(b) A meeting of Directors may be held without formal
notice if all the Directors are present or if those
absent have signified their assent to such meeting or
their consent to the business transacted thereat.
123. The President or any one Director may at any time, and
the Secretary, upon the request of the President or any one
Director, shall convene a meeting of the Directors to be held at
the Registered Office of the Company. The President or Chairman
or a majority of the Board may at any time summon a meeting to be
held elsewhere.
124. Questions arising at any meeting shall be decided by a
majority of votes, and in case of an equality of votes, the
President, if he is present, and otherwise the Chairman of the
meeting shall have a second or casting vote.
125. If no Chairman of the Board is elected, or if at any
meeting of Directors he is not present within five minutes after
the time appointed for holding the same, the President shall
preside, and if the President is not present at that time a Vice-
President of the Company shall preside, and if neither the
President nor a Vice-President is present at any meeting within
the time aforesaid, the Directors present shall choose some one
of their number to be chairman of such meeting.
126. A meeting of the Directors for the time being at which
a quorum is present may exercise all or any of the authorities,
powers and discretions vested in, or exercisable by the Directors
generally.
127. The Directors may delegate any of their powers to one
or more committees consisting of such number of members of their
body as they think fit. Any committee so formed shall in the <PAGE>
exercise of the powers so delegated conform to any regulations
that are imposed on them by the Directors.
128. The meetings and proceedings of any such committee
consisting of two or more members shall be governed by the
provisions contained in these Articles for regulating the
meetings and proceedings of the Directors so far as the same are
applicable thereto and are not superseded by any regulations made
by the Directors under the next preceding Clause.
129. All acts done at any meeting of the Directors or of a
committee of Directors or by any person acting as a Director
shall, notwithstanding that it is afterwards discovered that
there was some defect in the appointment of such Directors or
persons acting as aforesaid, or that they or any of them were
disqualified, be as valid as if every such person had been duly
appointed and was qualified to be a Director.
130. A resolution in writing and signed, either by original
signature or facsimile copy thereof, by every Director who would
be entitled to vote on the resolution at a meeting is as valid as
if it were passed by such Directors at a meeting. A copy of
every such resolution shall be kept with the minutes of
proceedings of the Directors or committee thereof, as the case
may be.
131. If any Director being willing is called upon to
perform extra services or to make any special exertions in going
or residing abroad or otherwise for any of the purposes of the
Company, the Company may remunerate the Director, either by a
fixed sum or by a percentage of profits or otherwise, as is
determined by the Directors, and such remuneration may be either
in addition to or in substitution for his share in the
remuneration above provided.
REGISTERS
132. The Directors shall cause a proper register of the
members of the Company to be kept in accordance with the
provisions of the Act.
133. The Directors may cause to be kept in any place
outside of Nova Scotia a branch register of members in accordance
with the provisions of the Act.
134. The Directors shall also cause to be kept a proper
register containing the names and addresses and occupations of
its Directors or managers in accordance with the provisions of
the Act.<PAGE>
135. The Directors shall cause a proper register of the
holders of debentures to be kept at the Registered Office of the
Company in accordance with the provisions of the Act.
136. The Directors may cause to be kept in any place
outside of Nova Scotia a branch register of the holders of
debentures in accordance with the Act.
MINUTES
137. The Directors shall cause minutes to be duly entered
in books for that purpose:-
(1) of all appointments of officers;
(2) of the names of the Directors present at each
meeting of the Directors and at any committee of the
Directors;
(3) of all orders made by the Directors and committees
of Directors;
(4) of all resolutions and proceedings of General
Meetings and of meetings of the Directors and
committees thereof;
and any such minutes of any meeting of the Directors or of any
committee or of the Company, if purporting to be signed by the
Chairman of such meeting or by the Chairman of the next
succeeding meeting, shall be receivable as prima facie evidence
of the matters stated in such minutes.
POWERS OF DIRECTORS
138. The management of the business of the Company shall be
vested in the Directors, who, in addition to the powers and
authorities expressly conferred upon them, may exercise all such
powers and do all such acts and things as may be exercised or
done by the Company and are not hereby or by statute expressly
directed or required to be exercised or done by the Company in
General Meeting, but subject nevertheless to the provisions of
the Act in that behalf and of these Articles and to any
regulations from time to time made by the Company in General
Meeting; provided that no regulations so made shall invalidate
any prior act of the Directors that would have been valid if such
regulation had not been made.
139. Without restricting the generality of the last
preceding Clause and without prejudice to the general powers <PAGE>
conferred by these Articles the Directors shall have the
following powers, that is to say:-
(1) To take such steps as they think fit to carry into
effect any agreement or contract made by or on behalf
of the Company;
(2) To purchase or otherwise acquire for the Company
any property, rights, or privileges that the Company
is authorized to acquire and at such price and
generally on such terms and conditions as they think
fit;
(3) At their discretion to pay for any property,
rights, or privileges acquired by or services rendered
to the Company, either wholly or partially, in cash or
in shares, bonds, debentures or other securities of
the Company, and any such shares may be issued either
as fully paid up or with such amount credited as paid
up thereon as is agreed upon; and any such bonds,
debentures, or other securities may be either
specifically charged upon all or any part of the
property of the Company and its uncalled capital or
not so charged;
(4) Subject to the provisions of the Act, to secure
the fulfillment of any contracts or engagements
entered into by the Company, by mortgage or charge of
all or any of the property of the Company and its
unpaid capital for the time being or in such other
manner as they think fit;
(5) To appoint, and at their discretion remove or
suspend, such managers, secretaries, treasurers,
officers, clerks, agents and servants for permanent,
temporary or special services as they from time to
time think fit and to determine their powers and
duties and fix their salaries or emoluments and to
require security in such instances and to such amounts
as they think fit;
(6) To accept from any member insofar as the law
permits, and on such terms and conditions as are
agreed upon, a surrender of his shares or of any part
thereof;
(7) To appoint any person or persons (whether
incorporated or not) to accept and hold in trust for
the Company any property belonging to the Company or
in which it is interested and for any other purposes <PAGE>
and to execute and do all such deeds and things as are
requisite in relation to any such trust, and to
provide for the remuneration of any such trustee or
trustees;
(8) To institute, conduct, defend, compound, or
abandon any legal proceedings by and against the
Company or its officers or otherwise concerning the
affairs of the Company, and also to compound and allow
time for payment or satisfaction of any debts due and
of any claims or demands by or against the Company;
(9) To refer any claims or demands by or against the
Company to arbitration and observe and perform the
awards;
(10) To make and give receipts, releases and other
discharges for money payable to the Company and for
claims and demands of the Company;
(11) To determine who may exercise the borrowing
powers of the Company and sign on the Company's behalf
bonds, debentures or other securities, bills, notes,
receipts, acceptances, assignments, transfers,
hypothecations, pledges, endorsements, cheques,
drafts, releases, contracts, agreements and all other
instruments and documents;
(12) To provide for the management of the affairs
of the Company abroad in such manner as they think
fit, and in particular to appoint any persons to be
the attorneys or agents of the Company with such
powers (including power to sub-delegate) and upon such
terms as are thought fit;
(13) To invest and deal with any of the funds of
the Company not immediately required for the purposes
thereof, upon such securities and in such manner as
they think fit, and from time to time to vary or
realize such investments;
(14) To execute in the name and on behalf of the
Company, in favour of any Director or any other person
who incurs or is about to incur any personal liability
for the benefit of the Company, such mortgages of the
Company's property, present and future, as they think
fit, and any such mortgages may contain a power of
sale and such other powers, covenants and provisions
as are agreed on;<PAGE>
(15) To give any officer or other person employed
by the Company a commission on the profits of any
particular business or transaction or a share in the
general profits of the Company, and such commission or
share of profits shall be treated as part of the
working expenses of the Company;
(16) To enter into all such negotiations and
contracts and rescind and vary all such contracts and
execute and do all such acts, deeds and things in the
name and on behalf of the Company as they consider
expedient for or in relation to any of the matters
aforesaid or otherwise for the purposes of the
Company;
(17) From time to time to allot and issue shares of
the capital stock of the Company without nominal or
par value at such prices or other such consideration
as the Directors from time to time determine;
(18) To set aside out of the profits of the Company
before declaring any dividend, such sums as they think
proper as a reserve fund to meet contingencies or to
provide for dividends or for depreciation, and for
such other purposes as the Directors in their
discretion think conducive to the interests of the
Company; and to invest the several sums so set aside
upon such investments as they think fit, and from time
to time to deal with and vary such investments, and to
dispose of all or any part thereof for the benefit of
the Company, and to divide the reserve fund into such
special funds as they think fit, with full power to
employ the assets constituting the reserve fund in the
business of the Company, without being bound to keep
the same separate from the other assets.
(19) From time to time to make, vary and repeal by-
laws for the regulation of the business of the
Company, its officers and employees or the members of
the Company or any section thereof.
SOLICITORS
140. The Company may employ or retain a solicitor or
solicitors, and such solicitor may, at the request of the Board
of Directors or on instructions of the Chairman of the Board or
the President or Managing Director, attend meetings of the
Directors or Shareholders, whether or not he himself is a member
or Director of the Company. If a Solicitor is also a Director he
<PAGE>
may nevertheless charge for services rendered to the Company as a
Solicitor.
SECRETARY AND TREASURER
141. There shall be a Secretary of the Company, who shall
keep the Minutes of Shareholders' and Directors' meetings and
shall perform such other duties as are assigned to him by the
Board. The Board may also appoint a Treasurer of the Company to
carry out such duties as the Board assigns.
142. The Secretary and Treasurer of the Company shall be
appointed by the Directors. If the Directors think fit the same
person may hold both offices.
143. If the Directors think fit, the same person may hold the
offices of President and Secretary.
144. The Directors may appoint a temporary substitute for
the Secretary, who shall, for the purposes of these Articles, be
deemed to be the Secretary.
THE SEAL
145. The seal of the Company shall not be affixed to any
instrument except by the authority of a resolution of the Board
of Directors or of a committee thereof and in the presence of the
Secretary or such other person as the Directors appoint for the
purpose; and the Secretary or other person as aforesaid shall
sign every instrument to which the Seal of the Company is so
affixed in their presence. For purposes of certification of
documents or proceedings the Secretary or any Director or officer
appointed by the Board may affix the seal of the Company.
146. The Company may have for use, as to all matters to
which the corporate existence and capacity of the Company extends
in any place not situate in the Province of Nova Scotia, an
official seal, which shall be a facsimile of the Common Seal of
the Company, with the addition on its face of the name of the
place where it is to be used; and the Company may by writing
under Seal authorize any person appointed for the purpose in any
place outside of Nova Scotia to affix the same to any document to
which the Company is a party in that place.
DIVIDENDS
147. The profits of the Company, subject to the provisions
of the Memorandum of Association and of these Articles and to the
rights of persons, if any, entitled to shares with special rights
as to dividends, may be divided among the members in proportion
to the amount of capital paid up on the shares held by them <PAGE>
respectively. Where capital is paid up in advance of calls upon
the footing that the same shall carry interest, such capital
shall not while carrying interest confer a right to participate
in profits.
148. The Directors may from time to time declare such
dividends upon the shares of the Company as they deem proper
according to the rights of the members and the respective classes
thereof, and may determine the date upon which the same shall be
payable and provide that any such dividend shall be payable to
the persons registered as the holders of the shares in respect of
which the same is declared at the close of business upon such
date as the Directors specify, and no transfer of such shares
made or registered after the date so specified shall pass any
right to the dividend so declared.
149. No dividend shall be payable except out of capital
surplus or out of the profits arising from the business of the
Company, and no dividend shall carry interest as against the
Company.
150. The declaration of the Directors as to the amount of
the net profits of the Company shall be conclusive.
151. The Directors may from time to time pay to the members
such interim dividends as in their judgment the position of the
Company justifies.
152. The Directors may deduct from the dividends payable to
any member all such sums of money as are due and payable by him
to the Company on account of calls, instalments or otherwise and
may apply the same in or towards satisfaction of such sums of
money so due and payable.
153. The Directors may retain any dividends on which the
Company has a lien and may apply the same in or towards
satisfaction of the debts, liabilities or engagements in respect
of which the lien exists.
154. The Directors may retain the dividends payable upon
shares or stock in respect of which any person is under the
transmission Clause entitled to become a member or that any
person under that Clause is entitled to transfer, until such
person has become a member in respect thereof or duly transfers
the same.
155. In case several persons are registered as the joint
holders of any shares, any one of such persons may give effectual
receipts for all dividends and payments on account of dividends
in respect of such share.<PAGE>
156. Subject to the Act, any meeting declaring a dividend
may resolve that such dividend be paid wholly or in part by the
distribution of specific assets or of paid up shares, debentures,
bonds or debenture stock of the Company or paid up shares,
debentures, bonds or debenture stock of any other company, or in
any one or more of such ways.
157. Subject to the Act, any meeting of the Directors may
resolve that any funds, investments or other assets forming part
of the undivided profits of the Company standing to the credit of
the reserve fund or in the hands of the Company and available for
dividends or representing premiums received on the issue of
shares and standing to the credit of the share premium account,
be capitalized and distributed among such of the shareholders as
would be entitled to receive the same if distributed by way of
dividends and in the same proportions on the footing that they
become entitled thereto as capital and that all or any part of
such capitalized fund be applied on behalf of such shareholders
in paying up in full, either at par or at such premium as the
resolution provides, any unissued shares or debentures or
debenture stock of the Company, which shall be distributed
accordingly, or in or toward payment of the uncalled liability on
any issued shares or debentures or debenture stock, and that such
distribution or payment shall be accepted by such shareholders in
full satisfaction of their interest in the said capitalized sum.
158. For the purpose of giving effect to any resolution
under the two last preceding Clauses, the Directors may settle
any difficulty that arises in regard to the distribution as they
think expedient and in particular may issue fractional
certificates, and may fix the value for distribution of any
specific assets, and may determine that cash payments shall be
made to any members upon the footing of the value so fixed or
that fractions of less value than $5.00 may be disregarded in
order to adjust the rights of all parties, and may vest any such
cash or specific assets in trustees upon such trusts for the
persons entitled to the dividend or capitalized fund as seems
expedient to the Directors.
159. Unless otherwise determined by the Directors, any
dividend may be paid by a cheque on the bank of the Company,
which shall be delivered to or sent by the Secretary through the
post to the registered address of the person entitled thereto or,
in case of joint holders, to the registered address of the one
whose name stands first on the register in respect of the joint
holding; and every cheque so sent shall be made payable to the
order of the person to whom it is sent.<PAGE>
160. Notices of the declaration of any dividend, whether
interim or otherwise, shall be given to the holders of registered
shares in the manner hereinafter provided.
161. All dividends unclaimed for one year after having been
declared may be invested or otherwise made use of by the
Directors for the benefit of the Company until claimed.
BOOKS OF ACCOUNT AND FINANCIAL STATEMENTS
162. The Directors shall cause true books of account or
equivalent records to be kept of the sums of money received and
expended by the Company, of the matters in respect of which such
receipts and expenditures take place, and of the assets and
credits and liabilities of the Company
163. The books of account shall be kept at such place or
places as the Directors think fit.
164. The Directors shall from time to time determine
whether, and to what extent, and at what times and places and
under what conditions or regulations, the accounts and books of
the Company or any of them shall be open to the inspection of the
members, and no member shall have any right of inspecting any
account or book or document of the Company except as conferred by
statute or authorized by the Directors or by a resolution of the
Company in General Meeting.
165. At the Ordinary General Meeting in every year, but not
at the first General Meeting, the Directors shall lay before the
Company a profit and loss statement and a balance sheet made up
to a date not more than three months before the meeting.
166. Every such profit and loss statement and balance sheet
may be accompanied by a report of the Directors as to the state
and condition of the Company and as to the amount of dividends,
if any, they have declared and the amount, if any, that they
propose to carry to the reserve fund, and the balance sheet shall
be signed by one Director.
167. A copy of every profit and loss statement and balance
sheet (including every document required by law to be annexed
thereto) that is to be laid before the Company in General
Meeting, together with a copy of the auditors' report, shall not
less than seven days before the date of the meeting be sent to
all persons entitled to receive notices of General Meetings of
the Company.<PAGE>
AUDITORS AND AUDIT
168. The Company shall at each Ordinary General Meeting
appoint an auditor or auditors to hold office until the next
Ordinary General Meeting.
169. The first auditors of the Company may be appointed by
the Directors at any time before the first Ordinary General
Meeting, and auditors so appointed shall hold office until such
meeting unless previously removed by a resolution of the
shareholders in General Meeting, in which case the shareholders
at such meeting may appoint auditors.
170. The Directors may fill any casual vacancy in the
office of auditor, but while any such vacancy continues the
surviving or continuing auditor or auditors, if any, may act.
None of the following persons shall be eligible for
appointment as auditor of the Company:
(a) Directors and officers of the Company;
(b) Partners or employees of an officer of the
Company;
(c) a body corporate.
171. A member of the Company, other than the persons listed
as ineligible in the next preceding Clause, may be an auditor,
but no person shall be eligible as an auditor who is interested
otherwise than as a member of the Company in any transaction
thereof.
172. The remuneration of the auditors shall be fixed by the
Company in General Meeting, or by the Directors pursuant to
authorization given by the shareholders at a General Meeting,
except that the remuneration of an auditor appointed before the
first Ordinary General Meeting or of an auditor appointed to fill
a casual vacancy may be fixed by the Directors.
173. Once at least in every year the accounts and records
of the Company shall be examined and the fairness of the profit
and loss statement and balance sheet reported upon by the
auditors.
174. The auditors shall have a right of access at all times
to the books and accounts and vouchers of the Company and may
require from the Directors and officers of the Company such
information and explanations as they deem necessary for the<PAGE>
performance of their duties as auditors. The auditors may attend
any General Meeting of the Company at which any financial
statements that have been examined or reported on by them are to
be laid before the Company and to make any statement or
explanation they desire with respect to the accounts or
statements.
175. The auditors shall make a report to the Shareholders
on the accounts and records examined by them, and on the
financial statements laid before the Company in General Meeting
during their term of office as required by the Act. The
auditors' report shall be attached to the financial statements
and shall be read before the Company in General Meeting and shall
be open to inspection by any Shareholder.
176. If the financial statements of the Company fail to
disclose the amount of any loan made during the period to which
the statements relate, either by or on the guarantee or security
of the Company, to any Director or officer of the Company,
including loans that have been repaid during the period and loans
made before the period and outstanding at the expiration thereof,
or if such statements fail to disclose the total amount paid by
the Company to the Directors as remuneration for their services
as such, other than the salaries of salaried Directors, then the
auditors shall include in their report, so far as they are able
to do so, a statement giving particulars of all such payments and
transactions.
177. The financial statements, when audited and approved by
a General Meeting, shall be conclusive, except as regards an
error discovered therein within three months next after the
approval thereof. Whenever any such error is discovered within
that period the statements shall forthwith be corrected and
henceforth shall be conclusive.
178. If one auditor only is appointed all the provisions
herein contained relating to auditors shall apply to him.
NOTICES
179. A notice may be served by the Company upon any member,
personally, by sending it through the post in a prepaid envelope
or wrapper addressed to such member at his registered place of
address, or by transmitting a facsimile copy thereof to such
member at the facsimile number for his registered place of
address, if there is one.
180. Members who have no registered place of address shall
not be entitled to receive any notice.<PAGE>
181. The holder of a share warrant shall not, unless
otherwise expressed therein, be entitled in respect thereof to
notice of any General Meeting of the Company.
182. Any notice required to be given by the Company to the
members or any of them and not expressly provided for by these
Articles shall be sufficiently given if given by advertisement.
183. Any notice required to be or that may be given by
advertisement shall be advertised twice in a paper published in
the place where the Registered Office of the Company is situated,
or if no paper is published there then in any newspaper published
in the City of Halifax, Nova Scotia.
184. All notices shall, with respect to any registered
shares to which persons are jointly entitled, be given to
whichever of such persons is named first in the Register, and
notice so given shall be sufficient notice to all the holders of
such shares.
185. Any notice sent by post shall be deemed to be served
on the day following that upon which the letter, envelope or
wrapper containing the same is posted, and in proving such
service it shall be sufficient to prove that the letter, envelope
or wrapper containing the notice was properly addressed and put
into the post office or post box with the postage paid on it. A
certificate in writing signed by any manager, secretary or other
officer of the Company that the letter, envelope or wrapper
containing the notice was so addressed and posted shall be
conclusive evidence thereof. Any notice transmitted by facsimile
shall be deemed to be served on the day it is transmitted, and in
proving such service it shall be sufficient to prove that the
facsimile number of the member's registered place of business was
dialed and that the notice appeared to have been transmitted to
same. A certificate in writing signed by any manager, secretary
or other officer of the Company that the facsimile number was
dialed and that the notice appeared to have been transmitted
shall be conclusive evidence thereof. The foregoing provisions of
this Clause shall not apply to a notice of a meeting of the
Directors.
186. Every person who, by operation of law, transfer or
other means whatsoever, becomes entitled to any share shall be
bound by every notice in respect of such share that before the
entry of his name and address on the Register was duly given to
the person from whom he derived his title to such share.
187. Any notice or document so served or sent by post to,
transmitted to or left at the registered address of, any member
in pursuance of these Articles shall, notwithstanding such member<PAGE>
is then deceased, and whether or not the Company has notice of
his decease, be deemed to have been served in respect of any
registered shares, whether held solely or jointly with other
persons by such member, until some other person is registered in
his stead as the holder or joint holder thereof, and such service
shall for all purposes of these Articles be deemed a sufficient
service of such notice or document on his heirs, executors or
administrators and all persons, if any, jointly interested with
him in any such share.
188. The signature to any notice to be given by the Company
may be written or printed.
189. Where a given number of days' notice or notice extending
over any other period is required to be given, the day of service
shall not, and the day on which such notice expires shall, unless
it is otherwise provided, be counted in such number of days or
other period.
INDEMNITY
190. Every Director, Manager, Secretary, treasurer and
other officer or servant of the Company shall be indemnified by
the Company against, and it shall be the duty of the Directors
out of the funds of the Company to pay, all costs, losses and
expenses that any such person incurs or becomes liable to by
reason of any contract entered into or act or thing done by him
as such officer or servant, or in any way in the discharge of his
duties, including travelling expenses; and the amount for which
such indemnity is proved shall immediately attach as a lien on
the property of the Company and shall have priority as against
the members over all other claims.
191. No Director or other officer of the Company shall be
liable for the acts, receipts, neglects or defaults of any other
Director or officer, or for joining in any receipt or other act
for conformity, or for any loss or expense happening to the
Company through the insufficiency or deficiency of title to any
property acquired by order of the Directors for or on behalf of
the Company or through the insufficiency or deficiency of any
security in or upon which any of the funds of the Company are
invested or for any loss or damage arising from the bankruptcy,
insolvency or tortious act of any person with whom any money,
securities or effect have been deposited, or for any loss
occasioned by error of judgment or oversight on his part, or for
any other loss damage or misfortune whatever that happens in the
execution of the duties of his office or in relation thereto
unless the same happens through his own dishonesty.<PAGE>
Name, Address, and Description of Subscriber(s) No. of
Shs. Taken
Dated this day of 19
Witness to the above signature(s):
<PAGE>
Exhibit B-85
(PRIVATE)
ARTICLES OF ASSOCIATION
OF
2322120 NOVA SCOTIA
LIMITED
DALEY, BLACK & MOREIRA
Barristers & Solicitors
Halifax, Nova Scotia<PAGE>
INDEX TO ARTICLES OF ASSOCIATION
Article No. Page
1. Interpretation....................................... 1
2. Table "A" not to apply .............................. 2
3. Pre-Incorporation Agreement ......................... 2
4. Directors - powers to pay for expenses of
incorporation ...................................... 2
5. May commence business at once ....................... 2
SHARES
6. Shares to be under the control of Directors ......... 2
7. May pay commission on subscription ................ 2
8. May make difference in amount of calls, etc. ........ 2
9. Instalments on Shares, by whom payable .............. 2
10. Joint holders of Shares not to exceed three ......... 2
11. Joint holders, liable severally as well as jointly
on Shares ............................................ 3
12. Joint holders - death - survivor only recognized ..... 3
13. Registered holder deemed to be absolute owner of
Shares, equities of others do not affect ............. 3
CLASSES OF SHARES
14. Shares may be issued with preferred, deferred or
other rights ......................................... 3
CERTIFICATES
15. Share Certificates - how signed ..................... 3
16. Members entitled to Share Certificate or
Certificates ....................................... 3
17. Replacement of damaged or destroyed Certificates .... 3
18. Charge for Certificates other than the first ........ 4
19. More than one holder of a Share - Certificate
issued to first name on Register ..................... 4
CALLS
20. Calls, when, how and by whom made ................... 4
21. Calls, when deemed to have been made ................ 4
22. Notice required for calls ........................... 4
23. Interest payable on amount of a call in arrears ..... 4
24. Resolution making call - matters for which Resolution
is conclusive proof ............................... 4
25. Calls may be paid in advance and interest paid on
such advances ........................................ 5<PAGE>
FORFEITURE OF SHARES
26. Failure to pay calls or instalments - notice
requiring payment served ............................. 5
27. Notice requiring payment - what it is to contain .... 5
28. Failure to comply with notice; forfeiture by
Resolution of Board of Directors ..................... 5
29. Notice of such Resolution, to whom given ............ 5
30. Forfeited Share property of Company ................. 6
31. Directors may annul forfeiture ...................... 6
32. Members still liable for amounts due, notwithstanding
forfeiture .......................................... 6
33. Certificate of forfeiture - conclusive proof ........ 6
LIEN ON SHARES
34. Company has lien on Shares (other than fully paid up)
for any amount owing the Company - includes
dividends ........................................... 6
35. May sell Shares to enforce such lien, provided notice
given .............................................. 6
36. Excess of such sale paid to member .................. 7
VALIDITY OF SALES
37. Purchaser at sale after forfeiture or to enforce lien
entitled to presume validity of sale ................ 7
TRANSFER OF SHARES
38. Transfer, who signs - not effective until registered 7
39. Form of transfer .................................... 7
40. May refuse to register transfer in certain cases .... 7
41. Transfer and Share Certificates to be left at office 8
42. Fee charged for transfer .......................... 8
43. Instrument of transfer to be kept by Company ........ 8
44. Transfer books and Register may be closed for 30
days - notice to be given ............................ 8
TRANSMISSION OF SHARES
45. Executors or Administrators of deceased member only
recognized ......................................... 9
46. Transmission clause - transfer of Shares to holder
from a deceased, bankrupt, insolvent, etc. member .... 9
SHARE WARRANTS
47. Share Warrants may be issued for fully paid up
Shares .............................................. 9<PAGE>
48. Terms and conditions of issue of Share Warrants
determined by Directors ............................ 9
INCREASE AND REDUCTION OF CAPITAL
49. May increase Capital at General Meeting by creation
of new Shares ..................................... 10
50. Such Shares may be issued on such terms and
conditions as General Meeting determines ............. 10
51. May determine when new Shares to be offered to
existing members or any other provisions respecting
their issue .......................................... 10
52. New Capital to be considered part of original
Capital and subject to Articles ...................... 10
53. May reduce Capital and Capital Redemption Reserve
Fund ............................................. 10
54. Provision for (a) consolidation and division; (b)
conversion; (c) exchange and (d) cancellation of
Shares ............................................. 10
55. Provision for (a) subdivision of Shares; (b)
conversion of unissued Shares into redeemable
Preference Shares; (c) issue of Shares without
nominal or par value; (d) conversion of nominal
or par value Shares into Shares without nominal
or par value; (e) conversion of Shares without
nominal or par value into Shares with nominal or
par value ............................................ 11
56. May redeem or purchase certain Common Shares and
Preference Shares and provide Sinking Fund ........... 12
INTEREST ON SHARE CAPITAL
57. May pay Interest on Capital raised for certain
construction purposes ............................... 12
MODIFICATION OF RIGHTS OF SHAREHOLDERS
58. May alter rights of classes of Shareholders ......... 12
SURRENDER OF SHARES
59. Surrender of Shares may be accepted on compromise ... 13
BORROWING POWERS
60. Directors may:
(a) Borrow money for the purposes of Company ........ 13
(b) Secure repayment by Mortgage, Bonds, etc. ....... 13
(c) Sign notes, cheques, bills, acceptances, etc.,
as evidence of money borrowed ................... 13<PAGE>
(d) Pledge debentures as security for loans ........ 13
61. Bonds, etc. may be made assignable free from any
equities .......................................... 14
62. Bonds, etc. may be issued at discount or premium
and with other special privileges .................... 14
MEETINGS
63. First General Meeting within eighteen months ........ 14
64. General Meetings at least once every year ........... 14
65. Definition of "Ordinary" and "Extraordinary"
Meetings .......................................... 14
66. Directors may call Special Meeting upon receipt
of a requisition ..................................... 14
67. What requisition must contain ..................... 14
68. If Directors fail to call Special Meetings,
requisitionists may ............................... 14
69. If, after Special Meeting, Confirmatory Meeting
required, Directors shall call ....................... 14
70. Requisitionists' Meeting called as any other
Meeting ........................................... 15
71. Seven days' notice for any Meeting ................. 15
72. In case of Special Resolution - two Meetings may
be called by same Notice ............................. 15
73. Omission or non-receipt of any Notice no effect
on any Resolution passed at Meeting ................ 15
PROCEEDINGS AT GENERAL MEETINGS
74. Business to be considered at General Meeting ....... 15
75. Quorum at General Meeting ........................... 15
76. No business transacted unless quorum present ...... 16
77. President may be Chairman .......................... 16
78. If no quorum in one-half hour, adjourn for one week . 16
79. Voting - how votes counted, Chairman has casting
vote ................................................ 16
80. Voting to be by show of hand - poll to be taken
if demanded .......................................... 16
81. Manner in which poll is to be taken; demand may
be withdrawn; Declaration by Chairman as to result
of vote conclusive ................................... 17
82. Meeting may be adjourned, adjourned Meeting only
to consider unfinished business ..................... 17
83. Poll demanded on question of adjournment or
election of chairman shall be taken before
Meeting adjourned ................................. 17
84. Demand of poll not to prevent continuance of
Meeting .............................................. 17<PAGE>
VOTES OF MEMBERS
85. Voting, those entitled to vote and number of votes
each entitled to .................................. 17
86. Persons entitled to vote under transmission clause .. 17
87. Joint holders, one may vote ......................... 18
88. Votes may be given personally or by proxy ........... 18
89. Instrument of proxy, what it is to contain ......... 18
90. Members of unsound mind vote by Guardian ............ 18
91. Instrument of proxy or copy filed at Company Office . 18
92. Vote by proxy valid even if authority revoked ....... 18
93. Form for instrument of proxy ........................ 19
94. Not entitled to vote if call or other liability
due on Share ......................................... 19
95. Resolutions passed by Directors and ratified by
three-fifths of members valid as if passed at
General Meeting - certain Resolutions excepted ....... 19
96. Shareholders' Resolution ........................... 19
DIRECTORS
97. Not less than one Director ......................... 20
98. Subscribers to Memorandum to be first Directors ..... 20
99. Directors may fill vacancies on Board; but
Directors not to exceed twelve ....................... 20
100. Qualification of Directors ........................ 20
101. Director may resign on one month's notice ........... 20
102. Provisions for remuneration of Directors ............ 20
103. Directors may act notwithstanding vacancy ........ 20
104. Directors may hold other office with Company ........ 20
105. Director's office ipso facto vacated if he,-
(a) is bankrupt ................................... 21
(b) is lunatic ..................................... 21
(c) ceases to hold required Shares ................. 21
(d) resigns ...................................... 21
(e) is removed by Resolution ........................ 21
106. Directors may contract with Company but must
declare interest .................................... 21
ELECTION OF DIRECTORS
107. All Directors to retire at every General Meeting ... 21
108. Retiring Directors eligible for re-election ........ 22
109. Vacancies among Directors to be filled at each
General Meeting ...................................... 22
110. If Directors not elected at General Meeting retiring
Directors continue in office ...................... 22
111. General Meeting may increase or decrease number of
Directors ........................................ 22
112. Removal of Director and appointment of successor .... 22<PAGE>
THE PRESIDENT AND VICE-PRESIDENT
113. Directors shall elect a President; powers and
duties of ............................................ 22
114. Directors may elect Vice-Presidents, one of whom may act
in absence of President ............................. 22
MANAGING DIRECTOR
115. Directors may appoint Managing Director ............ 22
116. Managing Director subject to removal as in case of
ordinary Directors ................................ 23
117. Remuneration of Managing Director ................... 23
118. Powers and duties of Managing Director .............. 23
CHAIRMAN OF THE BOARD
119. Directors may elect Chairman of the Board; powers and
duties of ........................................ 23
MEETINGS OF DIRECTORS
120. Directors may regulate their Meetings as they deem
fit ............................................... 23
121. Twenty-four hours' notice for Directors' Meeting .... 24
122. Meetings may be held, - within or without the Province:
(a) without notice after General Meeting .......... 24
(b) notice dispensed with if all present or waiver
received .......................................... 24
123. Provisions for summoning Meeting ................... 24
124. Majority of votes at Meeting decisive; President has
second or casting vote .............................. 24
125. Absence of Chairman, who to act in .................. 24
126. If quorum present, meeting competent ............... 24
127. Delegation of powers to committees .................. 24
128. Meetings of Committees - how carried on ............. 25
129. Acts of Directors and Committees valid notwithstanding
defective appointment of Directors .................. 25
130. Resolution signed by all the Directors, valid without
Meeting .......................................... 25
131. Directors may be remunerated for extra services ..... 25
REGISTERS
132. Register of Members to be kept ..................... 25
133. Branch Register of Members may be kept outside
Province .......................................... 25
134. Register of Directors to be kept ................... 25
135. Registers of holders of debentures to be kept ....... 26<PAGE>
136. Branch Debenture Registers may be kept outside
Province ............................................ 26
MINUTES
137. Directors shall keep Minutes of,-
(1) All appointments of officers .................... 26
(2) Attendance at Directors' Meetings ............... 26
(3) Orders made by Directors and Committees of
Directors ................................... 26
(4) Resolutions and proceedings of General Meetings 26
Such Minutes prima facie evidence of matters stated
therein.
POWERS OF DIRECTORS
138. General Powers of Company vested in Directors ....... 26
139. Directors have following express powers,-
(1) To carry Agreements into effect ................ 27
(2) To acquire property, rights and privileges ..... 27
(3) To pay for property, etc., by cash, shares, bonds,
etc. ........................................ 27
(4) To secure fulfilment of Contracts ............... 27
(5) To appoint and remove employees ................. 27
(6) To accept surrender of Shares ................... 27
(7) To appoint Trustees to hold Company assets ...... 27
(8) To bring and defend actions ..................... 28
(9) To refer matters to arbitration ................. 28
(10) To give receipts and releases .................. 28
(11) To delegate the borrowing and credit powers of the
Company ...................................... 28
(12) To appoint foreign Managers .................... 28
(13) To invest Company money ........................ 28
(14) To indemnify persons against loss .............. 28
(15) To give commissions to officers and other
persons ..................................... 29
(16) To make, amend and rescind Contracts ........... 29
(17) To allot and issue Shares ..................... 29
(18) To set up Reserve Fund and invest it ........... 29
(19) To make, vary and repeal By-Laws ............... 29
SOLICITORS
140. Company may appoint Solicitor, who may be Director .. 29
SECRETARY AND TREASURER
141. Shall be a Secretary and may be a Treasurer of
Company ........................................... 30
142. Secretary and Treasurer appointed by Directors ...... 30<PAGE>
143. President and Secretary same person ................. 30
144. Directors may appoint temporary substitute .......... 30
THE SEAL
145. Seal only to be affixed by Resolution of Directors
except for Certification ........................... 30
146. May have facsimile seal for use outside Province .... 30
DIVIDENDS
147. Dividends from profits, who entitled to and basis of
payment ........................................... 30
148. Directors may declare dividends and provide to whom
they shall be payable ............................ 31
149. Dividends only payable out of Capital surplus and
profits, not to bear interest ........................ 31
150. Directors' declaration of profits conclusive ........ 31
151. May pay interim dividends .......................... 31
152. May deduct debts due from member out of dividends ... 31
153. May retain dividends on which Company has lien ...... 31
154. Retention of dividend in certain cases under
Transmission Clause ................................. 31
155. Joint holders of Shares - any one of them may give
receipt for dividends ................................ 31
156. Meeting may declare dividends payable in Shares,
Bonds, Debentures or assets ......................... 32
157. Directors may capitalize undivided profits and
premiums on issue of Shares and distribute same ...... 32
158. Directors may issue fractional Certificates,
make cash payments for members' share of assets
distributed and disregard fractions less than
$5.00 ............................................. 32
159. Dividends may be paid by cheque ..................... 33
160. Notices of dividends to be given to Shareholders .... 33
161. Dividends unclaimed after one year may be used by
Company .......................................... 33
BOOKS OF ACCOUNT AND FINANCIAL STATEMENTS
162. Books of Account must be kept ....................... 33
163. Books of Account kept where Directors think fit ..... 33
164. Books open to inspection as Directors think fit
or as provided by Resolution ......................... 33
165. Profit and Loss Statement and Balance Sheet to
be laid before Ordinary General Meeting; date
such statement to be made up to and what to
contain .......................................... 33<PAGE>
166. Financial Statements may be accompanied by
Directors' Report and shall be signed by one
Director ........................................... 33
167. Copy of Financial Statements and Auditors'
Report to be sent to all entitled seven days
before Meeting ....................................... 33
AUDITORS AND AUDIT
168. Every General Meeting to appoint Auditors for
ensuing year ......................................... 34
169. First Auditor to be appointed by Directors ........... 34
170. Directors may fill casual vacancy in office of
Auditors. No Director, partner or employee of
an officer of the Company, or Body Corporate
eligible for appointment as Auditor .................. 34
171. Member of Company not interested otherwise than as
Member entitled to be Auditor ........................ 34
172. Provision for remuneration of Auditors .............. 34
173. Auditors to examine books annually .................. 34
174. Right of access of Auditors to books and accounts,
right to attend General Meeting, make explanation,
etc. .............................................. 34
175. Auditors shall make a report to Shareholders;
what report to contain; to be attached to
Financial Statements .............................. 35
176. Report of Auditors in cases of loans to Directors or
Officers .......................................... 35
177. When audited statements conclusive. ................. 35
178. Provision if only one Auditor ....................... 35
NOTICES
179. How Notices to be served ............................ 35
180. Not entitled to Notice if no registered address ..... 35
181. Holders of Share Warrant not entitled to notice ..... 36
182. When Notice by advertisement sufficient ............. 36
183. How Notice by advertisement is made ................. 36
184. Joint holders - sufficient to give notice to
first named on Register .............................. 36
185. When Notice by post deemed served .................. 36
186. Notice to registered holder binds holders who have
not had register changed ............................. 36
187. Notice valid though member deceased ................. 36
188. Signature on Notice may be written or printed ....... 37
189. How time to be counted .............................. 37
INDEMNITY
190. Indemnity of Directors and officers ................. 37<PAGE>
191. Directors only responsible for own dishonesty ....... 37<PAGE>
ARTICLES OF ASSOCIATION
OF
2322120 NOVA SCOTIA
LIMITED
1. In these Articles unless there is something in the
subject or context inconsistent therewith:-
"The Act" means The Companies Act, Chapter 81 of the
Revised Statutes of Nova Scotia, 1989, or any
amendment thereof or any successor Act.
"The Company" means the above named Company.
"The Office" means the registered office for the time
being of the Company.
"The Register" means the register of members to be
kept pursuant to the Act.
"The Registrar" means the Registrar of Joint Stock
Companies for the time being.
"Month" means calendar month.
"In writing" and "written" mean and include words
printed, lithographed, represented or reproduced in
any mode in a visible form.
"These Articles" includes these articles of
association and any modification or alteration thereof
for the time being in force.
"The Directors" or "The Board" means the Directors, or
the Director, if there is only one, for the time being
of the Company.
"Secretary" includes any person appointed to perform
the duties of Secretary temporarily.
"Dividend" includes bonus or stock dividend.
"Special Resolution" has the meaning assigned by the
Act.
Words importing the singular number include the plural
number, and vice versa.
Words importing the masculine gender include the
feminine gender.<PAGE>
Words importing persons include corporations.
2. The regulations contained in Table "A" in the First
Schedule to the Act shall not apply to the Company.
3. The Directors may enter into and carry into effect or
adopt and carry into effect any agreement or agreements from time
to time made by or with the promoters of the Company by or on
behalf of the Company with full power nevertheless from time to
time to agree to any modification of the terms of such agreement
or agreements either before or after the execution thereof.
4. The Directors may, out of any funds of the Company for
the time being in their hands, pay all expenses incurred in or
about the formation and establishment of the Company, including
the expenses of registration.
5. The business of the Company may be commenced as soon
after incorporation as the Directors think fit, and
notwithstanding that part only of the shares has been allotted.
SHARES
6. The shares shall be under the control of the
Directors, who may allot or otherwise dispose of the same to such
persons on such terms and conditions and either at a premium or
at par or as authorized by Clause 139(17) hereof and at such
times as the Directors think fit, subject nevertheless to the
provisions of these Articles.
7. The Directors may pay on behalf of the Company a
commission to any person in consideration of his subscribing or
agreeing to subscribe, whether absolutely or conditionally, for
any shares in the Company or his procuring or agreeing to procure
subscriptions for any shares in the Company, provided that such
commission paid or agreed to be paid does not exceed ten per cent
of the price at which such shares are sold.
8. The Company may make arrangements on the issue of
shares for a difference between the holders of such shares in the
amount of calls to be paid and the time of payment of such calls.
9. If by the conditions of allotment of any shares, the
whole or part of the amount or issue price thereof is payable by
instalments, every such instalment shall, when due, be paid to
the Company by the person who, for the time being, is the
registered holder of the share.
10. Shares may be registered in the names of any number of
persons, not exceeding three, as joint holders thereof.<PAGE>
11. Joint holders of a share shall be severally, as well
as jointly liable for the payment of all instalments and calls
due in respect of such share.
12. On the death of one or more joint holders of a share
the survivor or survivors of them shall alone be recognized by
the Company as having title to the share.
13. Save as herein otherwise provided, the Company may
treat the registered holder of any share as the absolute owner
thereof and accordingly shall not, except as ordered by a court
of competent jurisdiction or as by statute required, be bound to
recognize any equitable or other claim to or interest in such
share on the part of any other person.
CLASSES OF SHARES
14. Subject to the provisions, if any, in that behalf of
the Memorandum of Association and without prejudice to any
special rights previously conferred on the holders of existing
shares, any share may be issued with such preferred, deferred or
other special rights or such restrictions, whether in regard to
dividends, voting, return of share capital or otherwise as the
Company from time to time in General Meeting determines, and any
preference share with the sanction of a resolution of the Company
in General Meeting, may be issued on terms that it is or at the
option of the Company is liable to be redeemed or purchased by
the Company.
15. Certificates of title to shares shall be signed by the
President or Vice-President or a Director and either the
Secretary or an Assistant Secretary or by such other persons as
the Directors authorize. If the President and Secretary of the
Company are the same person, certificates of title shall be
signed by that person alone. The signature of the President or
Vice-President may be engraved, lithographed or printed upon the
certificates or any one or more of them, and any certificates
bearing such engraved, lithographed or printed signature of the
President or Vice-President, when signed by the Secretary or an
Assistant Secretary or by such other person as the Directors
authorize, shall be valid and binding upon the Company.
16. Every member shall be entitled to one certificate for
all his shares, or to several certificates each for one or more
of such shares.
17. If any certificate becomes worn out or defaced, then
upon production thereof to the Directors, they may order the same
to be cancelled and may issue a new certificate in lieu thereof;
and if any certificate is lost or destroyed, then upon proof<PAGE>
thereof to the satisfaction of the Directors, and on the giving
of such indemnity as the Directors deem adequate, a new
certificate in lieu thereof shall be given to the persons
entitled to such lost or destroyed certificate.
18. The sum of twenty-five cents, or such sum as the
Directors determine, shall be paid to the Company for every
certificate issued in respect of any share or shares except the
first.
19. The certificates of shares registered in the names of
two or more persons shall be delivered to the person first named
on the Register.
CALLS
20. The Directors may from time to time, in their
discretion, make calls upon the registered holders of shares in
respect of all amounts unpaid on the shares held by them
respectively and not by the conditions of allotment thereof made
payable at fixed times, and each registered holder shall pay the
amount of every call so made on him to the person and at the time
and place appointed by the Directors. A call may be made payable
by instalments.
21. A call shall be deemed to have been made at the time
when the resolution of the Directors authorizing such call was
passed.
22. At least fourteen days' notice of any call shall be
given, and such notice shall specify the time and place at which
and the person to whom such call shall be paid.
23. If the sum payable in respect of any call or
instalment is not paid on or before the day appointed for payment
thereof, the registered holder for the time being of the share on
which the call has been made or the instalment is due shall be
liable to pay interest for the same at the rate of six per cent
per annum from the day appointed for the payment thereof up to
the time of the actual payment, but the Directors may waive
payment of that interest either wholly or in part.
24. On the trial or hearing of any action for the recovery
of any money due for any call it shall be sufficient to prove
that the name of the member sued is entered on the Register as
the holder, or one of the holders, of the share or shares in
respect of which such debt accrued, that the resolution making
the call is duly recorded in the Minute Book and that Notice of
such call was duly given to the member sued in pursuance of these
Articles, and it shall not be necessary to prove the appointment<PAGE>
of the Directors who made such call nor any other matters
whatsoever, but the proof of the matters aforesaid shall be
conclusive evidence of the debt.
25. The Directors may, if they think fit, receive from any
member willing to advance the same, all or any part of the money
payable upon the shares held by him beyond the sums actually
called for; and upon the money so paid in advance or so much
thereof as from time to time exceeds the amount of the calls then
made or installments then due upon the shares in respect of which
such advance has been made, the Company may pay interest at such
rate, not exceeding six per cent per annum, as the member paying
such sum in advance and the Directors agree upon, or the
Directors may agree with such member that he may participate in
profits upon the amount so paid in advance.
FORFEITURE OF SHARES
26. If any member fails to pay any calls, instalment or
other sum due on any share registered in his name on or before
the day appointed for the payment of the same, the Directors may
at any time thereafter, during such time as the call, instalment
or other sum remains unpaid, serve a notice on such member
requiring him to pay the same, together with any interest that
has accrued thereon, and all expenses that have been incurred by
the Company by reason of such non-payment.
27. The notice shall name a day (not being less than
fourteen days after the date of the notice) and a place or places
on and at which such call, instalment or other sum and such
interest and expenses as aforesaid are to be paid. The notice
shall also state that in the event of non-payment on or before
the day and at the place or one of the places so named, the
shares in respect of which the call was made or the instalment or
other sum is due will be liable to be forfeited.
28. If the requisitions of any such notice as aforesaid
are not complied with, any shares in respect of which such notice
has been given may at any time thereafter, before payment of all
calls, instalments or other sums, interest and expenses due in
respect thereof, be forfeited by a resolution of the Directors to
that effect. Such forfeiture shall include all dividends
declared in respect of the forfeited shares and not actually paid
before the forfeiture.
29. When any share has been so forfeited, notice of the
resolution shall be given to the member or members in whose name
it stood immediately before the forfeiture, and an entry of the
forfeiture, with the date thereof, shall forthwith be made in the
Register.<PAGE>
30. Any share so forfeited shall be deemed to be the
property of the Company, and the Directors may sell, re-allot or
otherwise dispose of the same in such manner as they think fit.
31. The Directors, at any time before any share so
forfeited has been sold, re-allotted or otherwise disposed of,
may annul the forfeiture thereof upon such conditions as they
think fit.
32. Any member whose shares have been forfeited shall
nevertheless be liable to pay and shall forthwith pay to the
Company all calls, instalments or other sums and interest and
expenses owing upon or in respect of such shares at the time of
the forfeiture, together with interest thereon at the rate of six
per cent per annum, from time of forfeiture until payment, and
the Directors may enforce the payment thereof if they think fit
but shall not be obliged to do so.
33. A certificate in writing under the hands of one of the
Directors and countersigned by the Secretary, or if the only
Director and the Secretary are the same person, a certificate in
writing under the hand of such person, that a share has been duly
forfeited in pursuance of these Articles and stating the time
when it was forfeited shall be conclusive evidence of the facts
therein stated as against all persons who would have been
entitled to the share but for such forfeiture; and such
certificate, together with the receipt of the Company for the
price of such share, shall constitute a good title to such share.
LIEN ON SHARES
34. The Company shall have a first and paramount lien upon
all shares other than fully paid up shares registered in the name
of each member (whether solely or jointly with others), for his
debts, liabilities and other engagements, solely or jointly with
any other person, to or with the Company, whether the period for
the payment, fulfillment or discharge thereof has actually
arrived or not, and no equitable interest in any share shall be
created except upon the condition that Clause 13 of these
Articles is to have full effect. Any such lien shall extend to
all dividends from time to time declared in respect of such
shares. Unless otherwise agreed, the registration of a transfer
of shares shall operate as a waiver of the Company's lien, if
any, on such shares.
35. For the purpose of enforcing such lien, the Directors
may sell the shares subject thereto in such manner as they think
fit; but no sale shall be made until notice in writing of the
intention to sell has been given to such member or his executors
or administrators and default has been made by him or them in the<PAGE>
payment, fulfillment or discharge of such debts, liabilities or
engagements for seven days after such notice.
36. The net proceeds of any such sale after payment of
costs thereof shall be applied in or towards the satisfaction of
such debts, liabilities or engagements, and the residue, if any,
shall be paid to such member or his executors, administrators or
assigns.
VALIDITY OF SALES
37. Upon any sale, after forfeiture or for enforcing a
lien, in purported exercise of the powers given by these
Articles, the Directors may cause the purchaser's name to be
entered in the register in respect of the shares sold, and the
purchaser shall not be bound to see to the regularity of the
proceedings or to the application of the purchase money, and
after his name has been entered in the register in respect of
such shares the validity of the sale shall not be impeached by
any person, and the remedy of any person aggrieved by the sale
shall be in damages only and against the Company exclusively.
TRANSFER OF SHARES
38. The instrument of transfer of any share in the Company
shall be signed by the transferor, and the transferor shall be
deemed to remain the holder of such share until the name of the
transferee is entered in the Register in respect thereof.
39. Shares in the Company may be transferred in the
following
form, or as near thereto as circumstances permit or require:-
"For value received hereby sell, assign
and transfer unto
Shares of the Common(or Preferred) Stock represented by the
within Certificate, and do hereby irrevocably constitute and
appoint _______________________________ Attorney to transfer the
stock on the books of the within named Corporation with full
power of substitution in the premises.
Dated 19
Witness: "
40. (a) The Directors may decline to register any transfer
of shares upon which the Company has a lien, and they may decline<PAGE>
to register any transfer of shares that are not fully paid up,
without assigning any reason therefor.
(b) No transfer of shares shall be registered unless
and until the Directors have by a resolution approved the
transfer of such shares and the registration of the transfer and
the Directors shall be under no obligation to give such approval
or to give any reason for withholding the same.
(c) The number of shareholders of the Company,
exclusive of persons who are in its employment or the employment
of an affiliate of the Company and exclusive of persons who,
having been formerly in the employment of the Company or the
employment of an affiliate of the Company, were, while in that
employment, and have continued after termination of that
employment to be, shareholders of the Company, shall not exceed
fifty (50) in number, two or more persons who are the joint
registered owners of one or more shares being counted as one
shareholder.
(d) The Company shall not invite the public to
subscribe for any shares, debentures or debenture stock or other
securities of the Company.
41. Every instrument of transfer shall be left at the
office for registration, accompanied by the certificate of the
shares to be transferred and such other evidence as the Company
requires to prove the title of the transferor or his right to
transfer the shares.
42. A fee not exceeding fifty cents may be charged for
each transfer and shall, if required by the Directors, be paid
before the registration thereof.
43. Every instrument of transfer shall, after the
registration thereof, remain in the custody of the Company, but
any instrument of transfer that the Directors decline to register
shall, except in the case of fraud, be returned to the person
depositing the same.
44. The transfer books and register of members may be
closed during such time as the Directors think fit, not exceeding
in the whole thirty days in each year, notice of which shall be
given by advertisement in some newspaper circulating in the
district in which the registered office of the Company is
situate.<PAGE>
TRANSMISSION OF SHARES
45. The executors or administrators of a deceased member
(not being one of several joint holders) shall be the only
persons recognized by the Company as having any title to the
shares registered in the name of such member; in the case of a
share registered in the names of two or more joint holders, the
survivor or survivors or the executors or administrators of the
deceased survivor shall be the only persons recognized by the
Company as having any title to, or interest in, such share.
46. Any person becoming entitled to shares in consequence
of the death or insolvency or bankruptcy of any member, or in any
other way than by allotment or transfer, upon producing such
evidence of his being entitled to act in the capacity claimed, or
of his title, as the Directors think sufficient, may, with the
consent of the Directors, (which they shall not be obliged to
give) be registered as a member in respect of such shares or may,
without being registered, transfer such shares subject to the
provisions of these Articles respecting the transfer of shares.
This clause is hereinafter referred to as "the transmission
clause". The Directors shall, as in these Articles provided,
have the same right to refuse to register a person entitled by
transmission to any shares or his nominee, as if he were the
transferee named in an ordinary transfer presented for
registration.
SHARE WARRANTS
47. The Company, with respect to fully paid-up Shares, may
issue under its Common Seal warrants (hereinafter called "Share
Warrants") stating that the bearer is entitled to the shares
therein specified and may provide, by coupons or otherwise, for
the payment of future dividends on the shares included in such
warrants.
48. The Directors may determine, and from time to time
vary, the conditions upon which share warrants are issued and, in
particular, upon which a new share warrant or coupon will be
issued in the place of one worn out, defaced, lost or destroyed,
or upon which the bearer of a share warrant is entitled to attend
and vote at General Meetings or upon which a share warrant may be
surrendered and the name of the bearer entered in the register in
respect of the shares therein specified. Subject to such
conditions and to these Articles, the bearer of a share warrant
shall be a member to the full extent. The holder of a share
warrant shall be subject to the conditions for the time being in
force, whether made before or after the issue of such warrant.<PAGE>
INCREASE AND REDUCTION OF CAPITAL
49. The Company in General Meeting may, from time to time,
increase the capital by the creation or issue of new shares of
such amount as it thinks expedient.
50. The new shares may be issued upon such terms and
conditions and with such preferred, deferred or other special
rights or such restrictions annexed thereto as the General
Meeting resolving upon the creation thereof by Resolution
determines, whether with regard to dividends, voting, return of
capital, participation in the distribution of excess assets, or
otherwise.
51. The Company in General Meeting may, before the issue
of any new shares, determine that such shares, or any of them,
shall be offered in the first instance to all the then members or
to the members of any class, in proportion to the amount of the
capital held by them, or make any other provisions as to the
issue and allotment of the new shares; but in default of any such
determination, or so far as the same shall not extend, the new
shares may be dealt with as if they formed part of the shares in
the original capital.
52. Except so far as otherwise provided by the conditions
of issue or by these Articles, any capital raised by the creation
of new shares shall be considered as part of the original
ordinary capital and shall be subject to the provisions herein
contained with reference to the payment of calls and instalments
and transmissions, forfeiture, lien and otherwise.
53. The Company may from time to time, by Special
Resolution, reduce its share capital and any capital redemption
reserve fund in any manner and with and subject to any incident
authorized and consent required by law.
ALTERATION OF CAPITAL
54. The Company may from time to time in General Meeting,-
(a) Consolidate and divide all or any of its share
capital into shares of larger amount than its
existing shares;
(b) Convert all or any of its paid-up shares into
stock and reconvert that stock into paid-up shares
of any denomination;
(c) Exchange shares of one denomination for another;<PAGE>
(d) Cancel shares that, at the date of the passing of
the Resolution in that behalf, have not been taken
or agreed to be taken by any person and diminish
the amount of its share capital by the amount of
the shares so cancelled.
55. The Company may from time to time in General Meeting
and by Special Resolution,-
(a) Subdivide its shares or any of them into shares of
smaller amount than is fixed by the Memorandum of
Association, so, however, that in the subdivision
the proportion between the amount paid and the
amount, if any, unpaid on each reduced share shall
be the same as it was in the case of the share
from which the reduced share is derived. The
Special Resolution whereby any share is subdivided
may determine that, as between the holders of the
shares resulting from such subdivision, one or
more of such shares shall have some preference or
special advantage as regards dividends, capital,
voting, or otherwise, over or as compared with the
other shares;
(b) Convert any part of its issued or unissued share
capital into Preference Shares redeemable or
purchasable by the Company in the manner provided
by the Act;
(c) Provide for the issue of shares without nominal or
par value;
(d) Except in the case of Preferred Shares, convert
all or any of its previously authorized unissued
or issued and fully paid-up shares with nominal or
par value into the same number of shares without
nominal or par value and reduce, maintain or
increase accordingly its liability on any of its
shares so converted; PROVIDED, however, that the
power to reduce its liability on any of its shares
so converted where it results in a reduction of
capital may only be exercised subject to
confirmation by the Court as provided by the Act.
(e) Convert all or any of its previously authorized
unissued or issued and fully paid up shares
without nominal or par value into the same or a
different number of shares with nominal or par
value. For such purpose the shares issued without
nominal or par value and replaced by shares with<PAGE>
nominal or par value shall be considered as fully
paid, but their aggregate par value shall not
exceed the value of the net assets of the Company
as represented by the shares without par value
issued before the conversion.
56. Subject to the provisions of the Act as from time to
time in force, the Company may redeem or purchase any Common
Shares and may redeem or purchase any Preference Shares that by
the provisions from time to time attaching thereto may be
redeemed or purchased by the Company. The Directors, subject to
the provisions and conditions attaching from time to time to such
Preference Shares, may determine the manner in which and the
terms on which such Preference Shares may be redeemed or
purchased. The Directors may from time to time provide for a
sinking fund for the redemption or purchase of Preference Shares
of any class or classes on such terms as the Directors determine.
INTEREST ON SHARE CAPITAL
57. The Company may pay interest at a rate not exceeding
six per cent per annum on share capital issued and paid up for
the purpose of raising money to defray the expenses of the
construction of any works or buildings or the provision of any
plant that cannot be made profitable for a lengthy period; such
interest may be paid for such period and may be charged to
capital as part of the cost of construction of the work or
building, or the provision of plant. The payment of the interest
shall not operate as a reduction of the amount paid up on the
shares in respect of which it is paid. The financial statements
of the Company shall show full particulars of the payment during
the period to which the statements relate, in accordance with the
provisions of the Act.
MODIFICATION OF RIGHTS OF SHAREHOLDERS
58. If at any time the share capital of the Company, by
reason of the issue of preference shares or otherwise, is divided
into different classes of shares, all or any of the rights and
privileges attached to any such class may be modified, altered,
varied, affected, commuted, abrogated or otherwise dealt with by
agreement between the Company and any person purporting to
contract on behalf of that class, provided such agreement is
ratified in writing by the holders of at least three-fourths in
number of the issued shares of the class or by a Resolution
passed and confirmed by the same majority and in the same manner
as a Special Resolution at Extraordinary General Meetings of the
holders of shares of that class, and all the provisions
hereinafter contained as to General Meetings shall, mutatis
mutandis, apply to every such meeting, but so that the quorum <PAGE>
thereof shall be members holding, or representing by proxy, one-
fifth in number of the issued shares of the class. This clause
is not by implication to curtail the power of modification that
the Company would have if this clause were omitted.
SURRENDER OF SHARES
59. The Directors may accept the surrender of any share by
way of compromise of any question as to the holder's being
properly registered in respect thereof. Any share so surrendered
may be disposed of in the same manner as a forfeited share.
BORROWING POWERS
60. The Directors on behalf of the Company may from time
to time in their discretion:
(a) Raise or borrow money for the purposes of the
Company or any of them;
(b) Secure the repayment of money so raised or
borrowed in such manner and upon such terms and
conditions in all respects as they think fit, and
in particular by the execution and delivery of
mortgages of the Company's real or personal
property, or by the issue of bonds, debentures or
debenture stock of the Company secured by mortgage
or otherwise or charged upon all or any part of
the property of the Company, both present and
future, including its uncalled capital for the
time being;
Provided that the power to execute mortgages of
the Company's real or personal property and the
power to issue bonds or debentures or debenture
stock secured by mortgage or otherwise shall not
be exercised by the Directors except with the
sanction of a Special Resolution of the Company
previously passed and (where confirmation is
necessary) confirmed in General Meeting;
(c) Sign or endorse bills, notes, acceptances,
cheques, contracts and other evidence of or
securities for money borrowed or to be borrowed
for the purposes aforesaid;
(d) Pledge debentures as security for loans.<PAGE>
61. Bonds, debentures, debenture stock and other
securities may be made assignable, free from any equities between
the Company and the person to whom the same are issued.
62. Any bonds, debentures, debenture stock or other
securities may be issued at a discount, premium or otherwise and
with any special privileges as to redemption, surrender,
drawings, allotment of shares, attending and voting at General
Meetings of the Company, appointment of Directors and otherwise.
MEETINGS
63. The first General Meeting of the Company shall be held
within eighteen months of the date the Company is incorporated at
such time and place as is determined by the Directors.
64. General Meetings shall be held at least once in every
calendar year, at such time and place as are determined by the
Directors.
65. The General Meetings referred to in the next preceding
clause shall be called Ordinary General Meetings; and all other
meetings of the Company shall be called Special or Extraordinary
General Meetings.
66. The Directors may, whenever they think fit, convene a
Special General Meeting, and upon the requisition of members of
the Company holding not less than one-tenth of the total voting
rights of all the members having at the date of the deposit of
the requisition a right to vote at General Meetings of the
Company and in respect of whose shares all calls or other sums
then due have been paid, they shall forthwith proceed to convene
a Special or Extraordinary General Meeting of the Company, to be
held at such time and place as are determined by the Directors.
67. The requisition shall state the objects of the meeting
required, shall be signed by the members making the same, and
shall be deposited at the registered or other office of the
Company and may consist of several documents in like form each
signed by one or more of the requisitionists.
68. If the Directors do not proceed to cause a meeting to
be held within twenty-one days from the date of the deposit of
the requisition, the requisitionists, or a majority of them in
value, may themselves convene the meeting, but any meeting so
convened shall not be held after three months from the date of
such deposit.<PAGE>
69. If at any such meeting a resolution requiring
confirmation at another meeting is passed, the Directors shall
forthwith convene a future Special General Meeting for the
purpose of considering such resolution, and, if thought fit, of
confirming it as a Special Resolution; and if the Directors do
not convene the meeting within seven days from the date of the
passing of the first resolution, the requisitionists, or a
majority of them in value, may themselves convene the meeting.
70. Any meeting convened under the foregoing provisions by
the requisitionists shall be convened in the same manner as
nearly as possible as that in which meetings are to be convened
by Directors.
71. At least seven clear days' notice, specifying the
place, day and hour of meeting and, in case of special business,
the general nature of the business shall be given to all members
entitled to vote at such meeting, either by advertisement in a
newspaper published in Halifax, N.S., or by notice sent by post,
transmitted by facsimile or otherwise served as hereinafter
provided, and with the consent in writing of all the members a
meeting may be convened on short notice, and in any manner they
think fit, or if all the members are present at a meeting either
in person or by proxy, notice thereof may be waived.
72. Where it is proposed to pass a Special Resolution, the
two meetings may be convened by one and the same notice, and it
shall be no objection to such notice that it only convenes the
second meeting contingently upon the resolution's being passed by
the requisite majority at the first meeting.
73. The accidental omission to give any such notice to any
of the members or the non-receipt of any such notice by any
member shall not invalidate any resolution passed at any such
meeting.
PROCEEDINGS AT GENERAL MEETINGS
74. The business of an Ordinary General Meeting shall be
to receive and consider the profit and loss statement, the
balance sheet and the reports of the Directors and of the
auditors, to elect Directors in the place of those retiring and
to transact any other business that under these Articles ought to
be transacted at an Ordinary General Meeting.
75. One member personally present and entitled to vote
shall be a quorum for a General Meeting for the choice of a
chairman and for the adjournment of the meeting. For all other
purposes the quorum for a General Meeting shall be members
personally present and entitled to vote not being less than one <PAGE>
in number and holding or representing by proxy not less than one-
tenth in number of such of the issued shares of the Company as
confer upon the holders thereof the right to vote at such
meeting. Provided that a corporation that is a member of the
Company and that has duly appointed a representative under the
Act who is personally present at the meeting shall for the
purposes of this clause be considered as if personally present
thereat.
76. No business shall be transacted at any General Meeting
unless the quorum requisite is present at the commencement of the
business.
77. The President of the Company shall take the chair at
every General Meeting, or if there is no President, or if at any
meeting he is not present within fifteen minutes after the time
appointed for holding such meeting, the members shall choose
another Director as chairman, and if no Director is present or if
all the Directors present decline to take the chair, then the
members present shall choose one of their number to be chairman.
78. If within half an hour from the time appointed for the
meeting a quorum is not present, the meeting, if convened upon
such requisition as aforesaid, shall be dissolved, but in any
other case it shall stand adjourned to the same day in the next
week, at the same time and place, and if at such adjourned
meeting a quorum is not present those members who are present
shall be a quorum and may transact the business for which the
meeting was called.
79. Every question submitted to a meeting shall be
decided, in the first instance, by show of hands, and in the case
of an equality of votes the chairman shall, both on show of hands
and at the poll, have a casting vote in addition to the vote or
votes to which he is entitled as a member.
80. At any General Meeting a resolution put to the meeting
shall be decided by a show of hands, unless a poll is (before or
on the declaration of the result of a show of hands) demanded by
the chairman or by at least five members present and entitled to
vote at the meeting or by a member or members holding or
representing by proxy or entitled to vote in respect of at least
one-tenth in number of the issued shares of the Company as confer
upon the holders thereof the right to vote at such meeting, and
unless a poll is so demanded a declaration by the chairman that a
resolution has been carried, or carried by a particular majority,
or lost, or not carried by a particular majority, and an entry to
that effect in the book of proceedings of the Company shall be
conclusive evidence of the fact without proof of the number or
proportion of the votes recorded in favour or against such <PAGE>
resolution. A corporation that is a member of the Company and
that has duly appointed a representative under the Act who is
personally present at the meeting shall, for the purposes of this
Clause, be considered as if personally present thereat.
81. If a poll is demanded as aforesaid, it shall be taken
in such manner and at such time and place as the chairman of the
meeting directs, and either at once or after an interval or
adjournment or otherwise, and the result of the poll shall be
deemed to be the resolution of the meeting at which the poll was
demanded. The demand of a poll may be withdrawn. In case of a
dispute as to the admission or rejection of a vote, the chairman
shall determine the same, and such determination, made in good
faith, shall be final and conclusive.
82. The chairman of a General Meeting may, with the
consent of the meeting, adjourn the same from time to time and
from place to place, but no business shall be transacted at any
adjourned meeting other than the business left unfinished at the
meeting from which the adjournment took place.
83. Any poll demanded on the election of a chairman of a
meeting or on any question of adjournment shall be taken at the
meeting and without adjournment.
84. The demand of a poll shall not prevent the continuance
of a meeting for the transaction of any other business than the
question on which a poll has been demanded.
VOTES OF MEMBERS
85. Subject to the provisions applicable to any shares
issued under conditions limiting or excluding the right of
holders thereof to vote at General Meetings, on a show of hands
every member present in person shall have one vote, and upon a
poll every member present in person or by proxy shall have one
vote for every share held by him. Where a corporation being a
member is present by a proxy who is not a member or by a
representative duly authorized under the Act, such proxy or
representative shall be entitled to vote for such corporation
either on a show of hands or at a poll.
86. Any person entitled under the transmission clause to
transfer any shares may vote at any General Meeting in respect
thereof in the same manner as if he were the registered holder of
such shares, provided that forty-eight hours at least before the
time of holding the meeting or adjourned meeting, as the case may
be, at which he proposes to vote he has satisfied the Directors
of his right to transfer such shares, unless the Directors have
previously admitted his right to vote in respect thereof.<PAGE>
87. Where there are joint registered holders of any shares
any one of such persons may vote at any meeting, either
personally or by proxy, in respect of such shares as if he were
solely entitled thereto; and if more than one of such joint
holders is present at any meeting, personally or by proxy, the
one of such persons so present whose name stands first on the
register in respect of such shares shall alone be entitled to
vote in respect thereof. Several executors or administrators of
a deceased member in whose name any share stands shall for the
purposes of this clause be deemed joint holders thereof.
88. Votes may be given either personally or by proxy or in
the case of a corporation by a representative duly authorized
under the Act.
89. The instrument appointing a proxy shall be in writing
under the hand of the appointer or of his attorney duly
authorized in writing or, if such appointer is a corporation,
under its common seal. No person shall be appointed a proxy who
is not a member of the Company and qualified to vote, save that a
corporation being a member of the Company may appoint as its
proxy any person whether such person is a member of the Company
or not. Holders of share warrants shall not be entitled to vote
by proxy in respect of the shares included in such warrants
unless otherwise expressed in such warrants.
90. A member of unsound mind in respect of whom an order
of incompetency has been made by any Court may vote by his
guardian or other person in the nature of a guardian appointed by
that Court, and any such guardian or other person may vote by
proxy.
91. The instrument appointing a proxy and the power of
attorney or other authority, if any, under which it is signed or
a notarially certified copy of that power or authority or a
facsimile copy thereof shall be deposited at the Office of the
Company not less than forty-eight hours before the person named
in such instrument purports to vote in respect thereof.
92. A vote given in accordance with the terms of an
instrument of proxy shall be valid notwithstanding the previous
death of the principal, or revocation of the proxy, or transfer
of the share in respect of which the vote is given, provided no
intimation in writing of the death, revocation, or transfer has
been received before the meeting at the Office of the Company or
by the chairman of the meeting before the vote is given.<PAGE>
93. Every instrument of proxy, whether for a specified
meeting or otherwise, shall, as nearly as circumstances will
admit, be in the form or to the effect following:-
I, of
in the County of
, being a member of
Limited, hereby appoint of
or failing him
of as
my proxy, to vote
for me and on my behalf at the General (or Special General, as
the case may be) Meeting of the Company to be held on the
day of and at any adjournment thereof, or
at any meeting of the Company that is held within three months
from the date hereof.
As witness my hand this day of 19
Witness:
______________________________
94. No member is entitled to be present or to vote on any
question either personally or by proxy or as proxy for another
member at any General Meeting, or upon a poll, or be reckoned in
a quorum while any call or other sum is due and payable to the
Company in respect of any of the shares of such member.
95. Any resolution passed by the Directors of which notice
has been given to the members in the manner in which notices are
hereinafter directed to be given and that, within one month after
it has been passed, has been ratified and confirmed in writing by
members entitled at a poll to three-fifths of the votes, shall be
as valid and effectual as a resolution of a General Meeting; but
this clause shall not apply to a resolution for winding up the
Company or to a resolution passed in respect of any matter that
by statute or these Articles is be dealt with by Special
Resolution.
96. A resolution, including a special resolution, in
writing and signed, either by original signature or facsimile
copy thereof, by every shareholder who would be entitled to vote
on the resolution at a meeting is as valid as if it were passed
by such shareholders at a meeting and satisfied all the
requirements of the Act respecting meetings of Shareholders. A <PAGE>
copy of every such resolution shall be kept with the minutes of
proceedings of Shareholders.
DIRECTORS
97. Unless otherwise determined by a General Meeting the
number of the Directors shall not be less than one nor more than
twelve.
98. Notwithstanding anything herein contained, the
subscribers to the Memorandum of Association shall be the first
Directors of the Company.
99. The Directors, from time to time, may appoint any
other person or persons to be a Director or Directors, either to
fill a casual vacancy or as an addition, but so that the total
number of Directors shall not at any time exceed the maximum
number fixed as above, and no such appointment shall be effective
unless two-thirds of the Directors concur therein.
100. It shall not be necessary for a person to hold a share
in the Company in order to qualify as a Director.
101. A Director may retire from his office upon giving one
month's notice in writing to the Company of his intention so to
do, and such resignation shall take effect upon the expiration of
such notice or its earlier acceptance.
102. The Directors shall be paid out of the funds of the
Company by way of remuneration for their service such sums, if
any, as the Company in General Meeting determines, and such
remuneration shall be divided among them in such proportions and
manner as the Directors determine; the Directors may also be paid
their reasonable travelling and hotel and other expenses incurred
in consequence of their attendance at Board meetings and
otherwise in the execution of their duties as Directors.
103. The continuing Directors may act notwithstanding any
vacancy in their body; but in the event that at any time there
are no Directors, the shareholders may fill the vacancy or
vacancies.
104. A Director may hold any other office or place of
profit under the Company in conjunction with the office of
Director and on such terms as to remuneration and otherwise as
the Directors determine.
105. The office of a Director shall ipso facto be vacated:-<PAGE>
(a) if he becomes bankrupt or insolvent or suspends
payment, or compounds with creditors, or makes a
general assignment for the benefit of his creditors,
or
(b) if he is found to be incompetent or becomes of
unsound mind, or
(c) if he ceases to hold the required number of shares
to qualify him for office or does not acquire the same
within three months after election or appointment, or
(d) subject to Clause 101, if by notice in writing to
the Company he resigns his office, or
(e) if he is removed by resolution of the Company as
provided in Clause 112 hereof.
106. No Director shall be disqualified by his office from
contracting with the Company, either as vendor, purchaser or
otherwise, nor shall any such contract, or any contract or
arrangement entered by or on behalf of the Company in which any
Director is in any way interested, be avoided nor shall any
Director so contracting or being so interested be liable to
account to the Company for any profit realized by any such
contract or arrangement, by reason of such Director's holding
that office or of the fiduciary relation hereby established, but
he shall disclose the nature of his interest at the Meeting of
Directors at which the contract or arrangement is made, or if his
interest does not then exist or in any other case, at the first
meeting of the Directors after the acquisition of his interest,
and if there is one or more Director who is not interested in
such contract or arrangement, any interested Director shall, as a
Director, not vote in respect of any contract or arrangement in
which he is so interested, and should he so vote, his vote shall
not be counted; but this prohibition may at any time or times be
suspended or relaxed to any extent by a General Meeting, and such
prohibition shall not apply to any contract by or on behalf of
the Company to give to the Directors or any of them any security
for advances or by way of indemnity or to the agreement or
agreements referred to in Clause 3 or to any modification of such
agreement or agreements or to any agreement or agreements
substituted therefor or any matter arising out of any such
agreement or agreements.
ELECTION OF DIRECTORS
107. At the first General Meeting to be held in the year
following incorporation and at every succeeding Ordinary General
Meeting all the Directors shall retire from office. A retiring <PAGE>
Director shall retain office until the dissolution of the meeting
at which his successor is elected.
108. A retiring Director is eligible for re-election.
109. The Company at every Ordinary General Meeting shall
fill up the vacant offices by electing a like number of persons
to be Directors, unless it is determined at such meeting to
reduce the number of Directors.
110. If, at any General Meeting at which an election of
Directors ought to take place, no such election takes place the
retiring Directors shall continue in office until the Ordinary
General Meeting in the next year, and so on from year to year
until their places are filled up unless it is determined at such
meeting to reduce the number of Directors.
111. The Company in General Meeting may from time to time
increase or reduce the number of Directors and may determine or
alter their qualifications.
112. The Company in General Meeting may remove any Director
before the expiration of his period of office and appoint another
qualified person in his stead; the person so appointed shall hold
office during such time only as the Director in whose place he is
appointed would have held the same if he had not been removed.
THE PRESIDENT AND VICE-PRESIDENTS
113. The Directors may elect one of their number to be the
President of the Company and may determine the period for which
he is to hold office. The President shall have general
supervision of the business of the Company and shall perform such
duties as are assigned to him by the Board from time to time.
114. The Directors may also elect from their number one or
more persons to be Vice-President and may determine the period
for which such person or persons shall hold office. Any Vice-
President shall, subject to the directions of the Board, perform
the duties of the President during the absence, illness or
incapacity of the President or during such period as the
President requests him so to do.
MANAGING DIRECTOR
115. The Directors from time to time may appoint one or
more of their body to be Managing Director or Managing Directors
of the Company, either for a fixed term or without any limitation
as to the period for which he is or they are to hold such office,<PAGE>
and may remove or dismiss him or them from office and appoint
another or others in his or their places.
116. A Managing Director shall, subject to the provisions
of any contract between him and the Company, be subject to the
same provisions as to resignation and removal as the Directors of
the Company, and if he ceases to hold the office of Director he
shall ipso facto and immediately cease to be Managing Director.
117. The remuneration of a Managing Director shall from
time to time be fixed by the Directors and may be by way of
salary, or commission, or participation in profits, or by any or
all these modes.
118. The Directors from time to time may entrust to and
confer upon a Managing Director for the time being such of the
powers exercisable by the Directors as they think fit and may
confer such powers for such time, and to be exercised for such
objects and purposes and upon such terms and conditions and with
such restrictions, as they think expedient, and they may confer
such powers, either collaterally with, or to the exclusion of and
in substitution for, all or any of the powers of the Directors in
that behalf and may from time to time revoke, withdraw, alter or
vary all or any of such powers.
CHAIRMAN OF THE BOARD
119. The Directors may also elect one of their number to be
Chairman of the Board and may determine the period during which
he is to hold office. He shall preside, when present, at
meetings of the Board and shall perform such duties and receive
such special remuneration as the Board from time to time
provides.
MEETINGS OF DIRECTORS
120. The Directors may meet together for the dispatch of
business, may adjourn or otherwise regulate their meetings and
proceedings as they think fit, and may determine the quorum
necessary for the transaction of business. Unless otherwise
determined by the Directors, a quorum shall be one Director.
Where all of the Directors of the Company consent thereto,
meetings of the Board of Directors may be held by means of
telephone or other communications equipment so that all persons
participating in the meeting can hear each other, and when
Directors so participate in a meeting they shall be deemed to be
present in person at that meeting. Such consent may be given in
such a way that it is applicable to all meetings of the Board of
Directors. <PAGE>
121. Meetings of Directors may be held, unless otherwise
provided, on twenty-four hours' notice. Such notice may be
delivered or mailed or telegraphed or telephoned or transmitted
by facsimile or otherwise communicated to each Director.
122. Meetings of Directors may be held either within or
without the Province of Nova Scotia, and the Directors may from
time to time make arrangements relating to the time and place of
holding Directors' meetings, the notices to be given thereof and
what meetings may be held without notice. Unless otherwise
provided by such arrangements:-
(a) A meeting of Directors may be held at the close of
every Ordinary General Meeting of the Company without
notice;
(b) A meeting of Directors may be held without formal
notice if all the Directors are present or if those
absent have signified their assent to such meeting or
their consent to the business transacted thereat.
123. The President or any one Director may at any time, and
the Secretary, upon the request of the President or any one
Director, shall convene a meeting of the Directors to be held at
the Registered Office of the Company. The President or Chairman
or a majority of the Board may at any time summon a meeting to be
held elsewhere.
124. Questions arising at any meeting shall be decided by a
majority of votes, and in case of an equality of votes, the
President, if he is present, and otherwise the Chairman of the
meeting shall have a second or casting vote.
125. If no Chairman of the Board is elected, or if at any
meeting of Directors he is not present within five minutes after
the time appointed for holding the same, the President shall
preside, and if the President is not present at that time a Vice-
President of the Company shall preside, and if neither the
President nor a Vice-President is present at any meeting within
the time aforesaid, the Directors present shall choose some one
of their number to be chairman of such meeting.
126. A meeting of the Directors for the time being at which
a quorum is present may exercise all or any of the authorities,
powers and discretions vested in, or exercisable by the Directors
generally.
127. The Directors may delegate any of their powers to one
or more committees consisting of such number of members of their
body as they think fit. Any committee so formed shall in the <PAGE>
exercise of the powers so delegated conform to any regulations
that are imposed on them by the Directors.
128. The meetings and proceedings of any such committee
consisting of two or more members shall be governed by the
provisions contained in these Articles for regulating the
meetings and proceedings of the Directors so far as the same are
applicable thereto and are not superseded by any regulations made
by the Directors under the next preceding Clause.
129. All acts done at any meeting of the Directors or of a
committee of Directors or by any person acting as a Director
shall, notwithstanding that it is afterwards discovered that
there was some defect in the appointment of such Directors or
persons acting as aforesaid, or that they or any of them were
disqualified, be as valid as if every such person had been duly
appointed and was qualified to be a Director.
130. A resolution in writing and signed, either by original
signature or facsimile copy thereof, by every Director who would
be entitled to vote on the resolution at a meeting is as valid as
if it were passed by such Directors at a meeting. A copy of
every such resolution shall be kept with the minutes of
proceedings of the Directors or committee thereof, as the case
may be.
131. If any Director being willing is called upon to
perform extra services or to make any special exertions in going
or residing abroad or otherwise for any of the purposes of the
Company, the Company may remunerate the Director, either by a
fixed sum or by a percentage of profits or otherwise, as is
determined by the Directors, and such remuneration may be either
in addition to or in substitution for his share in the
remuneration above provided.
REGISTERS
132. The Directors shall cause a proper register of the
members of the Company to be kept in accordance with the
provisions of the Act.
133. The Directors may cause to be kept in any place
outside of Nova Scotia a branch register of members in accordance
with the provisions of the Act.
134. The Directors shall also cause to be kept a proper
register containing the names and addresses and occupations of
its Directors or managers in accordance with the provisions of
the Act.<PAGE>
135. The Directors shall cause a proper register of the
holders of debentures to be kept at the Registered Office of the
Company in accordance with the provisions of the Act.
136. The Directors may cause to be kept in any place
outside of Nova Scotia a branch register of the holders of
debentures in accordance with the Act.
MINUTES
137. The Directors shall cause minutes to be duly entered
in books for that purpose:-
(1) of all appointments of officers;
(2) of the names of the Directors present at each
meeting of the Directors and at any committee of the
Directors;
(3) of all orders made by the Directors and committees
of Directors;
(4) of all resolutions and proceedings of General
Meetings and of meetings of the Directors and
committees thereof;
and any such minutes of any meeting of the Directors or of any
committee or of the Company, if purporting to be signed by the
Chairman of such meeting or by the Chairman of the next
succeeding meeting, shall be receivable as prima facie evidence
of the matters stated in such minutes.
POWERS OF DIRECTORS
138. The management of the business of the Company shall be
vested in the Directors, who, in addition to the powers and
authorities expressly conferred upon them, may exercise all such
powers and do all such acts and things as may be exercised or
done by the Company and are not hereby or by statute expressly
directed or required to be exercised or done by the Company in
General Meeting, but subject nevertheless to the provisions of
the Act in that behalf and of these Articles and to any
regulations from time to time made by the Company in General
Meeting; provided that no regulations so made shall invalidate
any prior act of the Directors that would have been valid if such
regulation had not been made.
139. Without restricting the generality of the last
preceding Clause and without prejudice to the general powers <PAGE>
conferred by these Articles the Directors shall have the
following powers, that is to say:-
(1) To take such steps as they think fit to carry into
effect any agreement or contract made by or on behalf
of the Company;
(2) To purchase or otherwise acquire for the Company
any property, rights, or privileges that the Company
is authorized to acquire and at such price and
generally on such terms and conditions as they think
fit;
(3) At their discretion to pay for any property,
rights, or privileges acquired by or services rendered
to the Company, either wholly or partially, in cash or
in shares, bonds, debentures or other securities of
the Company, and any such shares may be issued either
as fully paid up or with such amount credited as paid
up thereon as is agreed upon; and any such bonds,
debentures, or other securities may be either
specifically charged upon all or any part of the
property of the Company and its uncalled capital or
not so charged;
(4) Subject to the provisions of the Act, to secure
the fulfillment of any contracts or engagements
entered into by the Company, by mortgage or charge of
all or any of the property of the Company and its
unpaid capital for the time being or in such other
manner as they think fit;
(5) To appoint, and at their discretion remove or
suspend, such managers, secretaries, treasurers,
officers, clerks, agents and servants for permanent,
temporary or special services as they from time to
time think fit and to determine their powers and
duties and fix their salaries or emoluments and to
require security in such instances and to such amounts
as they think fit;
(6) To accept from any member insofar as the law
permits, and on such terms and conditions as are
agreed upon, a surrender of his shares or of any part
thereof;
(7) To appoint any person or persons (whether
incorporated or not) to accept and hold in trust for
the Company any property belonging to the Company or
in which it is interested and for any other purposes<PAGE>
and to execute and do all such deeds and things as are
requisite in relation to any such trust, and to
provide for the remuneration of any such trustee or
trustees;
(8) To institute, conduct, defend, compound, or
abandon any legal proceedings by and against the
Company or its officers or otherwise concerning the
affairs of the Company, and also to compound and allow
time for payment or satisfaction of any debts due and
of any claims or demands by or against the Company;
(9) To refer any claims or demands by or against the
Company to arbitration and observe and perform the
awards;
(10) To make and give receipts, releases and other
discharges for money payable to the Company and for
claims and demands of the Company;
(11) To determine who may exercise the borrowing
powers of the Company and sign on the Company's behalf
bonds, debentures or other securities, bills, notes,
receipts, acceptances, assignments, transfers,
hypothecations, pledges, endorsements, cheques,
drafts, releases, contracts, agreements and all other
instruments and documents;
(12) To provide for the management of the affairs
of the Company abroad in such manner as they think
fit, and in particular to appoint any persons to be
the attorneys or agents of the Company with such
powers (including power to sub-delegate) and upon such
terms as are thought fit;
(13) To invest and deal with any of the funds of
the Company not immediately required for the purposes
thereof, upon such securities and in such manner as
they think fit, and from time to time to vary or
realize such investments;
(14) To execute in the name and on behalf of the
Company, in favour of any Director or any other person
who incurs or is about to incur any personal liability
for the benefit of the Company, such mortgages of the
Company's property, present and future, as they think
fit, and any such mortgages may contain a power of
sale and such other powers, covenants and provisions
as are agreed on;<PAGE>
(15) To give any officer or other person employed
by the Company a commission on the profits of any
particular business or transaction or a share in the
general profits of the Company, and such commission or
share of profits shall be treated as part of the
working expenses of the Company;
(16) To enter into all such negotiations and
contracts and rescind and vary all such contracts and
execute and do all such acts, deeds and things in the
name and on behalf of the Company as they consider
expedient for or in relation to any of the matters
aforesaid or otherwise for the purposes of the
Company;
(17) From time to time to allot and issue shares of
the capital stock of the Company without nominal or
par value at such prices or other such consideration
as the Directors from time to time determine;
(18) To set aside out of the profits of the Company
before declaring any dividend, such sums as they think
proper as a reserve fund to meet contingencies or to
provide for dividends or for depreciation, and for
such other purposes as the Directors in their
discretion think conducive to the interests of the
Company; and to invest the several sums so set aside
upon such investments as they think fit, and from time
to time to deal with and vary such investments, and to
dispose of all or any part thereof for the benefit of
the Company, and to divide the reserve fund into such
special funds as they think fit, with full power to
employ the assets constituting the reserve fund in the
business of the Company, without being bound to keep
the same separate from the other assets.
(19) From time to time to make, vary and repeal by-
laws for the regulation of the business of the
Company, its officers and employees or the members of
the Company or any section thereof.
SOLICITORS
140. The Company may employ or retain a solicitor or
solicitors, and such solicitor may, at the request of the Board
of Directors or on instructions of the Chairman of the Board or
the President or Managing Director, attend meetings of the
Directors or Shareholders, whether or not he himself is a member
or Director of the Company. If a Solicitor is also a Director he<PAGE>
may nevertheless charge for services rendered to the Company as a
Solicitor.
SECRETARY AND TREASURER
141. There shall be a Secretary of the Company, who shall
keep the Minutes of Shareholders' and Directors' meetings and
shall perform such other duties as are assigned to him by the
Board. The Board may also appoint a Treasurer of the Company to
carry out such duties as the Board assigns.
142. The Secretary and Treasurer of the Company shall be
appointed by the Directors. If the Directors think fit the same
person may hold both offices.
143. If the Directors think fit, the same person may hold the
offices of President and Secretary.
144. The Directors may appoint a temporary substitute for
the Secretary, who shall, for the purposes of these Articles, be
deemed to be the Secretary.
THE SEAL
145. The seal of the Company shall not be affixed to any
instrument except by the authority of a resolution of the Board
of Directors or of a committee thereof and in the presence of the
Secretary or such other person as the Directors appoint for the
purpose; and the Secretary or other person as aforesaid shall
sign every instrument to which the Seal of the Company is so
affixed in their presence. For purposes of certification of
documents or proceedings the Secretary or any Director or officer
appointed by the Board may affix the seal of the Company.
146. The Company may have for use, as to all matters to
which the corporate existence and capacity of the Company extends
in any place not situate in the Province of Nova Scotia, an
official seal, which shall be a facsimile of the Common Seal of
the Company, with the addition on its face of the name of the
place where it is to be used; and the Company may by writing
under Seal authorize any person appointed for the purpose in any
place outside of Nova Scotia to affix the same to any document to
which the Company is a party in that place.
DIVIDENDS
147. The profits of the Company, subject to the provisions
of the Memorandum of Association and of these Articles and to the
rights of persons, if any, entitled to shares with special rights
as to dividends, may be divided among the members in proportion
to the amount of capital paid up on the shares held by them <PAGE>
respectively. Where capital is paid up in advance of calls upon
the footing that the same shall carry interest, such capital
shall not while carrying interest confer a right to participate
in profits.
148. The Directors may from time to time declare such
dividends upon the shares of the Company as they deem proper
according to the rights of the members and the respective classes
thereof, and may determine the date upon which the same shall be
payable and provide that any such dividend shall be payable to
the persons registered as the holders of the shares in respect of
which the same is declared at the close of business upon such
date as the Directors specify, and no transfer of such shares
made or registered after the date so specified shall pass any
right to the dividend so declared.
149. No dividend shall be payable except out of capital
surplus or out of the profits arising from the business of the
Company, and no dividend shall carry interest as against the
Company.
150. The declaration of the Directors as to the amount of
the net profits of the Company shall be conclusive.
151. The Directors may from time to time pay to the members
such interim dividends as in their judgment the position of the
Company justifies.
152. The Directors may deduct from the dividends payable to
any member all such sums of money as are due and payable by him
to the Company on account of calls, instalments or otherwise and
may apply the same in or towards satisfaction of such sums of
money so due and payable.
153. The Directors may retain any dividends on which the
Company has a lien and may apply the same in or towards
satisfaction of the debts, liabilities or engagements in respect
of which the lien exists.
154. The Directors may retain the dividends payable upon
shares or stock in respect of which any person is under the
transmission Clause entitled to become a member or that any
person under that Clause is entitled to transfer, until such
person has become a member in respect thereof or duly transfers
the same.
155. In case several persons are registered as the joint
holders of any shares, any one of such persons may give effectual
receipts for all dividends and payments on account of dividends
in respect of such share.<PAGE>
156. Subject to the Act, any meeting declaring a dividend
may resolve that such dividend be paid wholly or in part by the
distribution of specific assets or of paid up shares, debentures,
bonds or debenture stock of the Company or paid up shares,
debentures, bonds or debenture stock of any other company, or in
any one or more of such ways.
157. Subject to the Act, any meeting of the Directors may
resolve that any funds, investments or other assets forming part
of the undivided profits of the Company standing to the credit of
the reserve fund or in the hands of the Company and available for
dividends or representing premiums received on the issue of
shares and standing to the credit of the share premium account,
be capitalized and distributed among such of the shareholders as
would be entitled to receive the same if distributed by way of
dividends and in the same proportions on the footing that they
become entitled thereto as capital and that all or any part of
such capitalized fund be applied on behalf of such shareholders
in paying up in full, either at par or at such premium as the
resolution provides, any unissued shares or debentures or
debenture stock of the Company, which shall be distributed
accordingly, or in or toward payment of the uncalled liability on
any issued shares or debentures or debenture stock, and that such
distribution or payment shall be accepted by such shareholders in
full satisfaction of their interest in the said capitalized sum.
158. For the purpose of giving effect to any resolution
under the two last preceding Clauses, the Directors may settle
any difficulty that arises in regard to the distribution as they
think expedient and in particular may issue fractional
certificates, and may fix the value for distribution of any
specific assets, and may determine that cash payments shall be
made to any members upon the footing of the value so fixed or
that fractions of less value than $5.00 may be disregarded in
order to adjust the rights of all parties, and may vest any such
cash or specific assets in trustees upon such trusts for the
persons entitled to the dividend or capitalized fund as seems
expedient to the Directors.
159. Unless otherwise determined by the Directors, any
dividend may be paid by a cheque on the bank of the Company,
which shall be delivered to or sent by the Secretary through the
post to the registered address of the person entitled thereto or,
in case of joint holders, to the registered address of the one
whose name stands first on the register in respect of the joint
holding; and every cheque so sent shall be made payable to the
order of the person to whom it is sent.<PAGE>
160. Notices of the declaration of any dividend, whether
interim or otherwise, shall be given to the holders of registered
shares in the manner hereinafter provided.
161. All dividends unclaimed for one year after having been
declared may be invested or otherwise made use of by the
Directors for the benefit of the Company until claimed.
BOOKS OF ACCOUNT AND FINANCIAL STATEMENTS
162. The Directors shall cause true books of account or
equivalent records to be kept of the sums of money received and
expended by the Company, of the matters in respect of which such
receipts and expenditures take place, and of the assets and
credits and liabilities of the Company
163. The books of account shall be kept at such place or
places as the Directors think fit.
164. The Directors shall from time to time determine
whether, and to what extent, and at what times and places and
under what conditions or regulations, the accounts and books of
the Company or any of them shall be open to the inspection of the
members, and no member shall have any right of inspecting any
account or book or document of the Company except as conferred by
statute or authorized by the Directors or by a resolution of the
Company in General Meeting.
165. At the Ordinary General Meeting in every year, but not
at the first General Meeting, the Directors shall lay before the
Company a profit and loss statement and a balance sheet made up
to a date not more than three months before the meeting.
166. Every such profit and loss statement and balance sheet
may be accompanied by a report of the Directors as to the state
and condition of the Company and as to the amount of dividends,
if any, they have declared and the amount, if any, that they
propose to carry to the reserve fund, and the balance sheet shall
be signed by one Director.
167. A copy of every profit and loss statement and balance
sheet (including every document required by law to be annexed
thereto) that is to be laid before the Company in General
Meeting, together with a copy of the auditors' report, shall not
less than seven days before the date of the meeting be sent to
all persons entitled to receive notices of General Meetings of
the Company.<PAGE>
AUDITORS AND AUDIT
168. The Company shall at each Ordinary General Meeting
appoint an auditor or auditors to hold office until the next
Ordinary General Meeting.
169. The first auditors of the Company may be appointed by
the Directors at any time before the first Ordinary General
Meeting, and auditors so appointed shall hold office until such
meeting unless previously removed by a resolution of the
shareholders in General Meeting, in which case the shareholders
at such meeting may appoint auditors.
170. The Directors may fill any casual vacancy in the
office of auditor, but while any such vacancy continues the
surviving or continuing auditor or auditors, if any, may act.
None of the following persons shall be eligible for
appointment as auditor of the Company:
(a) Directors and officers of the Company;
(b) Partners or employees of an officer of the
Company;
(c) a body corporate.
171. A member of the Company, other than the persons listed
as ineligible in the next preceding Clause, may be an auditor,
but no person shall be eligible as an auditor who is interested
otherwise than as a member of the Company in any transaction
thereof.
172. The remuneration of the auditors shall be fixed by the
Company in General Meeting, or by the Directors pursuant to
authorization given by the shareholders at a General Meeting,
except that the remuneration of an auditor appointed before the
first Ordinary General Meeting or of an auditor appointed to fill
a casual vacancy may be fixed by the Directors.
173. Once at least in every year the accounts and records
of the Company shall be examined and the fairness of the profit
and loss statement and balance sheet reported upon by the
auditors.
174. The auditors shall have a right of access at all times
to the books and accounts and vouchers of the Company and may
require from the Directors and officers of the Company such
information and explanations as they deem necessary for the<PAGE>
performance of their duties as auditors. The auditors may attend
any General Meeting of the Company at which any financial
statements that have been examined or reported on by them are to
be laid before the Company and to make any statement or
explanation they desire with respect to the accounts or
statements.
175. The auditors shall make a report to the Shareholders
on the accounts and records examined by them, and on the
financial statements laid before the Company in General Meeting
during their term of office as required by the Act. The
auditors' report shall be attached to the financial statements
and shall be read before the Company in General Meeting and shall
be open to inspection by any Shareholder.
176. If the financial statements of the Company fail to
disclose the amount of any loan made during the period to which
the statements relate, either by or on the guarantee or security
of the Company, to any Director or officer of the Company,
including loans that have been repaid during the period and loans
made before the period and outstanding at the expiration thereof,
or if such statements fail to disclose the total amount paid by
the Company to the Directors as remuneration for their services
as such, other than the salaries of salaried Directors, then the
auditors shall include in their report, so far as they are able
to do so, a statement giving particulars of all such payments and
transactions.
177. The financial statements, when audited and approved by
a General Meeting, shall be conclusive, except as regards an
error discovered therein within three months next after the
approval thereof. Whenever any such error is discovered within
that period the statements shall forthwith be corrected and
henceforth shall be conclusive.
178. If one auditor only is appointed all the provisions
herein contained relating to auditors shall apply to him.
NOTICES
179. A notice may be served by the Company upon any member,
personally, by sending it through the post in a prepaid envelope
or wrapper addressed to such member at his registered place of
address, or by transmitting a facsimile copy thereof to such
member at the facsimile number for his registered place of
address, if there is one.
180. Members who have no registered place of address shall
not be entitled to receive any notice.<PAGE>
181. The holder of a share warrant shall not, unless
otherwise expressed therein, be entitled in respect thereof to
notice of any General Meeting of the Company.
182. Any notice required to be given by the Company to the
members or any of them and not expressly provided for by these
Articles shall be sufficiently given if given by advertisement.
183. Any notice required to be or that may be given by
advertisement shall be advertised twice in a paper published in
the place where the Registered Office of the Company is situated,
or if no paper is published there then in any newspaper published
in the City of Halifax, Nova Scotia.
184. All notices shall, with respect to any registered
shares to which persons are jointly entitled, be given to
whichever of such persons is named first in the Register, and
notice so given shall be sufficient notice to all the holders of
such shares.
185. Any notice sent by post shall be deemed to be served
on the day following that upon which the letter, envelope or
wrapper containing the same is posted, and in proving such
service it shall be sufficient to prove that the letter, envelope
or wrapper containing the notice was properly addressed and put
into the post office or post box with the postage paid on it. A
certificate in writing signed by any manager, secretary or other
officer of the Company that the letter, envelope or wrapper
containing the notice was so addressed and posted shall be
conclusive evidence thereof. Any notice transmitted by facsimile
shall be deemed to be served on the day it is transmitted, and in
proving such service it shall be sufficient to prove that the
facsimile number of the member's registered place of business was
dialed and that the notice appeared to have been transmitted to
same. A certificate in writing signed by any manager, secretary
or other officer of the Company that the facsimile number was
dialed and that the notice appeared to have been transmitted
shall be conclusive evidence thereof. The foregoing provisions of
this Clause shall not apply to a notice of a meeting of the
Directors.
186. Every person who, by operation of law, transfer or
other means whatsoever, becomes entitled to any share shall be
bound by every notice in respect of such share that before the
entry of his name and address on the Register was duly given to
the person from whom he derived his title to such share.
187. Any notice or document so served or sent by post to,
transmitted to or left at the registered address of, any member <PAGE>
in pursuance of these Articles shall, notwithstanding such member
is then deceased, and whether or not the Company has notice of
his decease, be deemed to have been served in respect of any
registered shares, whether held solely or jointly with other
persons by such member, until some other person is registered in
his stead as the holder or joint holder thereof, and such service
shall for all purposes of these Articles be deemed a sufficient
service of such notice or document on his heirs, executors or
administrators and all persons, if any, jointly interested with
him in any such share.
188. The signature to any notice to be given by the Company
may be written or printed.
189. Where a given number of days' notice or notice extending
over any other period is required to be given, the day of service
shall not, and the day on which such notice expires shall, unless
it is otherwise provided, be counted in such number of days or
other period.
INDEMNITY
190. Every Director, Manager, Secretary, treasurer and
other officer or servant of the Company shall be indemnified by
the Company against, and it shall be the duty of the Directors
out of the funds of the Company to pay, all costs, losses and
expenses that any such person incurs or becomes liable to by
reason of any contract entered into or act or thing done by him
as such officer or servant, or in any way in the discharge of his
duties, including travelling expenses; and the amount for which
such indemnity is proved shall immediately attach as a lien on
the property of the Company and shall have priority as against
the members over all other claims.
191. No Director or other officer of the Company shall be
liable for the acts, receipts, neglects or defaults of any other
Director or officer, or for joining in any receipt or other act
for conformity, or for any loss or expense happening to the
Company through the insufficiency or deficiency of title to any
property acquired by order of the Directors for or on behalf of
the Company or through the insufficiency or deficiency of any
security in or upon which any of the funds of the Company are
invested or for any loss or damage arising from the bankruptcy,
insolvency or tortious act of any person with whom any money,
securities or effect have been deposited, or for any loss
occasioned by error of judgment or oversight on his part, or for
any other loss damage or misfortune whatever that happens in the
execution of the duties of his office or in relation thereto
unless the same happens through his own dishonesty.<PAGE>
Name, Address, and Description of Subscriber(s) No. of
Shs. Taken
Dated this day of 19
Witness to the above signature(s):
<PAGE>
INDEX TO ARTICLES OF ASSOCIATION
Article No. Page
PRELIMINARY
1. Interpretation 1
2. Table "A" not to apply 2
3. Pre-Incorporation Agreement 2
4. Payment of expenses of incorporation, etc 2
5. May commence business at once 2
SHARES
6. Shares under control of Directors 2
7. May pay commission on subscription 2
8. May make difference in amount of calls, etc 2
9. If payable by instalments, payable by registered holder 2
10. May be registered jointly, not exceeding 3 2
11. Jointly and severally liable. Survivor only recognized 3
12. Company treats registered holder as absolute
owner - equities not recognized 3
CERTIFICATES
13. Share Certificates - how signed 3
14. Member entitled to share certificate 3
15. Only one certificate when joint holders - issued
to first named on register 3
16. Worn out, defaced or lost certificates 4
17. Fee for certificates 4
18. May keep one or more branch registers 4
CALLS
19. Directors may make calls 4
20. When calls deemed made 4
21. Fourteen days' notice of call 4
22. If not paid, bears interest 4
23. Resolution making call conclusive 4
24. Directors may accept money in advance and
may pay thereon 4
<PAGE>
- 2 -
FORFEITURE OF SHARES
25. If member fails to pay calls - notice served 5
26. What notice to contain 5
27. If requisitions of notice not complied with,
shares forfeited - includes dividends 5
28. Notice of resolution of forfeiture to
be given and entry to be made 5
29. Forfeited share deemed property of Company 5
30. Directors may annul forfeiture, etc. 5
31. Members still liable to pay notwithstanding
forfeiture 5
32. Certificate of forfeiture-conclusive 5
LIEN OF SHARES
33. Company has lien on shares (not fully paid up)
for debts of member includes dividends 5
34. Directors may sell shares after notice 6
35. Proceeds of shares, first used to pay debts
residue to member 6
VALIDITY OF SHARES
36. Purchaser at sale after forfeiture or for enforcing
lien, not bound to inquire 6
PRIVATE COMPANY STATUS
37. No share transfers without consent, number
of members restricted to 50 and, no
distribution of securities to public 6
TRANSFER OF SHARES
38. How transfer to be signed not effective until registered 6
39. Form of transfer 7
40. May decline transfer in certain cases 7
41. Transfer to be left at office and evidence of title given 7
42. Fee on transfer 7
43. Instrument of transfer to remain in custody of Company 7
44. Transfer Books may be closed 30 days - notice to be given 7
<PAGE>
- 3 -
TRANSMISSION OF SHARES
45. Executors or administrators of deceased
member only recognized 7
46. Transfer of Shares (of deceased member or bankrupt,
etc.); Transfer of Shares when only one member 8
SHARE WARRANTS
47. Company may issue Share Warrants 8
48. Directors may determine terms and conditions under
which Share Warrants to be issued 8
INCREASE AND REDUCTION OF CAPITAL
49. May increase capital 8
50. New shares may be issued on terms, etc. 8
51. May determine when new shares to be offered
to existing members 8
52. New capital to be considered part of original
capital and subject to these Articles 9
53. May reduce capital and capital redemption reserve fund 9
54. Third Schedule applying 9
ALTERATION OF CAPITAL
55. May consolidate and divide capital 9
56. May convert paid-up shares into stock 9
57. May sub-divide shares 9
58. May exchange shares of one denomination for another 9
59. May cancel unissued shares 9
60. May convert unissued shares into redeemable
Preference Shares 9
61. May provide for issue of No Par Value shares 9
62. May convert no par value shares into shares with
par valuesame number etc 9
63. May convert no par value shares into same or
different number of shares with par value 10
64. May purchase or acquire own shares 10
65. Third Schedule applying 10
<PAGE>
- 4 -
INTEREST ON SHARE CAPITAL
66. Company may pay interest on share capital issued to
defray expenses of construction, etc. 10
CLASSES OF SHARES
67. Shares may be issued with preferred, deferred or
other special rights, etc 11
MODIFICATION OF RIGHTS OF SHAREHOLDERS
68. Rights attached to class may be modified, altered, etc.
by agreement ratified by Extraordinary Resolution 11
SURRENDER OF SHARES
69. Directors may accept surrender of shares in compromise 11
BORROWING POWERS
70. Directors may on behalf of the Company:
(a) raise or borrow money for purpose of Company 11
(b) secure repayment by mortgage, bonds,
debentures, etc. 11
(c) sign notes, cheques, etc. and other evidence
of or securities for money borrowed, etc. 12
(d) pledge debentures as security 12
71. Bond, etc., may be made assignable free from equities 12
72. Bonds, etc., may be issued at a discount or premium, etc.12
SHAREHOLDERS' RESOLUTIONS
73. Valid if signed by all shareholders, etc. 12
MEETINGS
74. General Meeting every year 12
75. When special meeting called - requisition 12
76. What requisition must state 12
77. If Directors fail to call, requisitionists may 12
78. If confirmatory meeting required - Directors to call 12
<PAGE>
- 5 -
79. Requisitionists' meeting called same as
other meetings called 13
80. Seven or twenty-one days' notice required 13
81. In case of special resolution, two meetings may
be called by one and same notice 13
82. Accidental omission to give notice does not
invalidate resolution 13
PROCEEDINGS AT GENERAL MEETINGS
83. Business of general meeting 13
84. No business unless quorum present 13
85. One Shareholder may transact business 13
86. Chairman 14
87. If quorum not present - when dissolved
and when adjourned 14
88. Resolution decided by show of hands
unless poll demanded 14
89. Declaration by Chairman conclusive 14
90. How poll taken; may be withdrawn 14
91. Chairman does not have casting vote 14
92. Meeting may be adjourned. Adjourned meeting may
only transact unfinished business 14
93. Question of adjournment shall be taken at
meeting without adjournment 15
94. Demand of poll shall not prevent continuance of meeting 15
VOTES OF MEMBERS
95. Every member entitled to one vote unless excluded by
conditions of issue, etc. 15
96. Persons entitled under transmission clause 15
97. Votes by joint registered holders 15
98. Votes by persons or proxy or corporate representative 15
99. Proxies 15
100. Regulations regarding lodging of proxies 15
101. Votes of members of unsound mind 16
102. Proxies to be deposited and when valid 16
103. Form of proxy 16
104. Member not entitled to vote if call due 16
105. Resolution of Directors ratified and confirmed
by three-fifths of shareholders valid
as resolution ofgeneral
meeting 16
<PAGE>
- 6 -
DIRECTORS
106. Number of Directors 17
107. Subscribers to Memorandum to be first Directors 17
108. When Directors may appoint additional Directors 17
109. May or may not be a member 17
110. Resignation or retirement 17
111. Remuneration 17
112. Directors may act notwithstanding vacancy 17
113. Directors may also hold other office with Company 17
114. When office vacated 17
115. Director may contract with Company but must
declare interest 18
ELECTION OF DIRECTORS
116. Election of Directors 18
117. Retiring Directors to remain in office
until successors appointed 18
118. May increase or reduce number of Directors 18
119. Removal of Directors by Special Resolution 18
120. Directors may fill up casual vacancies 18
MANAGING DIRECTOR
121. Power to appoint Managing Director 19
122. Provisions that he will be subject to 19
123. Remuneration 19
124. Power and duties of Managing Director 19
PRESIDENT AND VICE-PRESIDENT
125. Election of President and Vice-Presidents 19
CHAIRMAN OF THE BOARD
126. Chairman of the Board 19
<PAGE>
- 7 -
PROCEEDINGS OF DIRECTORS
127. Meetings of Directors and quorum 20
128. Place of meetings - within or without Province 20
129. Who may summon meetings 20
130. How questions decided; Directors vote by proxy 20
131. Chairman of meeting 20
132. If quorum present, meeting competent 21
133. Committee of Directors 21
134. Meetings of committees 21
135. When acts of Directors of committee valid
defective appointment notwithstanding
136. Resolution valid if signed by all Directors, etc. 21
136. Remuneration for extra services 21
REGISTERS
137. Register of Members, Bond and Debenture Holders
and Directors to be kept in accordance
with the Act. Branch Registers
may be kept 21
MINUTES
138. Minutes to be made, etc. 22
POWERS OF DIRECTORS
139. General powers of Company vested in Directors 22
140. Specific powers 22
SOLICITORS
141. Company may retain solicitors 24
SECRETARY AND TREASURER
142. Secretary 24
143. Treasurer; Other Officers 4
<PAGE>
- 8 -
THE SEAL
144. Use of Common Seal 25
145. Facsimile Seal 25
DIVIDENDS
146. Profits may be divided among members 25
147. Declaration of dividend 25
148. Any dividend payable if not prohibited by law, etc. 25
149. Declaration as to amount of net profits conclusive 25
150. Interim dividends 25
151. Deduction in case of debts 26
152. Retention in certain cases 26
153. Retention in case of transmission 26
154. Meeting declaring dividend may make call 26
155. Meeting declaring dividend may resolve to pay same by
distribution of paid up shares, etc. 26
156. May capitalize and distribute reserve funds 26
157. May issue fractional certificates, etc. 26
158. Transfer not to pass right to dividend until registered 26
159. Any one of joint holders may give receipt for dividends 26
160. Dividend may be paid by cheque 27
161. Notice of declaration of dividend 27
162. Unclaimed dividends 27
ACCOUNTS
163. Accounts to be kept 27
164. Where books to be kept 27
165. Inspection by members 27
166. Financial Statements and report of auditor
to be laid before meeting of
shareholders annually 27
167. Financial Statements to be approved
by Board and signed by two
Directors 27
168. Copies of Financial Statements and auditors'
report to be sent to members seven days
before annual meeting 27
<PAGE>
- 9 -
AUDITORS AND AUDIT
169. Appointed at each annual general meeting 27
170. First auditors 28
171. Directors may fill any casual vacancy 28
172. Persons not eligible for appointment as auditors:
173. Remuneration 28
174. Annual audit, etc. 28
175. Removal of auditors, etc. 28
176. Demands of auditors, etc. 29
177. Auditors report placed before shareholders 30
178. Error or Omission 30
179. Appointment of accountant in lieu of auditor 30
180. If one auditor only 30
NOTICES
181. How notices to be served on members 30
182. Notices where no registered address 30
183. Notice to be given by advertisement 31
184. How notice given by advertisement 31
185. Notice to joint holders 31
186. When notice sent by post deemed served, how proved 31
187. Transferees bound by prior notice 31
188. Notice valid though member deceased 31
189. How notice to be signed 31
190. How time to be counted 31
INDEMNITY
191. Indemnity of Directors and officers 31
192. Individual responsibility of Directors 32
SHAREHOLDER AGREEMENTS
193. May supersede Articles 32
REMINDERS
194. Directors to comply with certain provisions of the
Act, etc. 32
<PAGE>
ARTICLES OF ASSOCIATION
OF
EI BROOKLYN INVESTMENT LIMITED
INTERPRETATION
1. (1) In these Articles unless there be something in the
subject or context inconsistent therewith:
(a) "the Act" means the Companies Act of Nova Scotia
and all amendments thereto;
(b) "Auditor" includes a partnership of auditors;
(c) "the Company" means the Company named above;
(d) "the Commission" means the Nova Scotia Securities
Commission;
(e) "dividend" includes a bonus or stock dividend.
(f) "the Office" means the registered office for the
time being of the Company;
(g) "proxyholder" includes an alternate proxyholder;
(h) "the Register" means the register of members kept
pursuant to Section 42 of the Act;
(i) "the Registrar" means the Registrar of Joint Stock
Companies for the time being;
(j) "month" means calendar month;
(k) "in writing" and "written" includes printing,
lithography and other modes of representing or
reproducing words in visible form;
(l) "these Articles" and "these presents" includes
these Articles of Association and all amendments
thereto;
(m) "the Directors" or "the Board" means the Directors
of the Company for the time being;
(n) "Reporting Company" and "Reporting Issuer" shall
have the meanings prescribed by the Act;
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(o) "Secretary" includes any person appointed to
perform the duties of the Secretary temporarily;
(p) "the Securities Act" means the Securities Act of
Nova Scotia and all amendments thereto;
(q) "Shareholders" means the members of the Company
for the time being;
(r) "Special resolution" has the meaning assigned by
Section 87 of the Act;
(s) "Voting securities" shall have the meaning
prescribed by the Act;
(2) Words importing the singular number include the plural
number and vice versa;
(3) Words importing the masculine gender include the
feminine gender;
(4) Words importing persons include corporations.
2. The regulations appearing in Table A in the First
Schedule to the Act shall not apply to the Company.
3. The Directors may enter into and carry into effect or
adopt and carry into effect any agreements made by the promoters
of the Company on behalf of the Company and shall have full power
to agree to any modification in the terms of any such agreement
or agreements, either before or after their execution.
4. The Directors may, out of any moneys of the Company for
the time being in their hands, pay all expenses incurred for the
formation and establishment of the Company, including the
expenses of registration.
5. The business of the Company may be commenced as soon
after incorporation as the Directors think fit and
notwithstanding that part only of the shares have been allotted.
SHARES
6. The Directors shall control the shares and, subject to
the provisions of these Articles, may allot or otherwise dispose
of them to such persons, at such prices, at such times, on such
terms and conditions and either at a premium or at par as they
think fit.
7. The Directors may pay on behalf of the Company a
reasonable commission to any person in consideration of his
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subscribing or agreeing to subscribe, (whether absolutely or
conditionally), for any shares in the Company, or his procuring
or agreeing to procure subscriptions for any shares in the
Company. The commission may be paid or satisfied in cash or in
shares, debentures, or debenture stock of the Company.
8. On the issue of shares the Company may arrange among
the holders thereof differences in the calls to be paid and in
the times for their payment.
9. If the whole or part of the allotment price of any
shares is, by the conditions of their allotment, payable in
instalments, every such instalment shall, when due, be payable to
the Company by the person who is at such time the registered
holder of the shares.
10. Shares may be registered in the names of joint holders
not exceeding three in number.
11. The joint holders of a share shall be severally as well
as jointly liable for the payment of all instalments and calls
due in respect of such share. On the death of one or more joint
holders of shares, the survivor or survivors of them shall alone
be recognized by the Company as having title to the shares.
12. Save as herein provided, the Company shall be entitled
to treat the registered holder of any share as the absolute owner
thereof and accordingly shall not, except as ordered by a court
of competent jurisdiction or required by statute, be bound to
recognize any equitable or other claim to or interest in such
share on the part of any other person.
CERTIFICATES
13. (1) Subject to the requirements of section 50 of the Act,
certificates of title to shares shall be in the following form or
as near thereto as circumstances will permit, or in such other
form as the Directors may from time to time approve.
This is to certify that..........is the registered owner
of.........fully paid and non-assessable common shares of
........transferable only on the books of the Company (subject to
the restrictions imposed by the Articles of Association of the
Company) by the holder thereof in person or by duly authorized
attorney upon surrender of this Certificate properly endorsed.
IN WITNESS WHEREOF the Company has caused this
certificate to be signed by its duly authorized officers and to
be sealed with the seal of the Company this.....day
of...............19......
(2) Certificates of title to shares shall be signed (i) by
the President, a Vice-President or a Director, and (ii) by a
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Director, the Secretary or an Assistant Secretary, being a person
other than one referred to in the immediately preceding Clause
(i) unless the person is the sole Director or sole Officer of the
Company, in which case that person may sign pursuant to Clauses
(i) and (ii); or such other person as the Directors may
authorize and, (iii) if the Directors have appointed a transfer
agent and\or share registrar for the Company, by an authorized
officer of such transfer agent and\or share registrar. The
signature of the President or Vice-President and if a transfer
agent and\or share registrar has been appointed and either one or
both are required to sign manually, of the Secretary or Assistant
Secretary may be engraved, lithographed or printed upon the
certificates, or any one or more of them, and all such
certificates when signed by the Secretary and Assistant Secretary
or, if a transfer agent and\or share registrar has been
appointed, an authorized officer of such transfer agent and\or
share registrar, shall be valid and binding upon the Company. An
engraved, lithographed or printed signature upon any certificate
of title to shares shall for all purposes of these Articles be
deemed to be the signature of the person whose signature it
purports to be and notwithstanding that any person whose
signature may appear on such certificate is not at the date
thereof the President, Vice-President, the Secretary, Assistant
Secretary or Director, as the case may be, of the Company, such
certificate shall be valid and binding upon the Company.
14. Subject to any regulations made at any time by the
Directors, each shareholder may have title to the shares
registered in his name evidenced by any number of certificates so
long as the aggregate of the shares stipulated in such
certificates equals the aggregate registered in his name.
15. Where shares are registered in the names of two or more
persons the Company shall not be bound to issue more than one
certificate or one set of certificates and such certificate or
set of certificates shall be delivered to the person first named
on the Register.
16. Any certificate that has become worn, damaged or
defaced may, upon its surrender to the Directors, be cancelled
and replaced by a new certificate. Any certificate that has
become lost or destroyed may also be replaced by a new
certificate upon proof of such loss or destruction to the
satisfaction of the Directors and the furnishing to the Company
of such undertakings of indemnity as the Directors deem adequate.
17. The sum of one dollar or such other sum as the
Directors from time to time determine shall be paid to the
Company for every certificate other than the first certificate
issued to any holder in respect of any share or shares.
18. The Directors may cause one or more branch Registers of
members to be kept in any place or places, whether inside or
outside of Nova Scotia.
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CALLS
19. The Directors may from time to time make such calls as
they think fit upon the shareholders in respect of all moneys
unpaid on the shares held by them respectively and not made
payable at fixed times by the conditions on which such shares
were allotted and each shareholder shall pay the amount of every
call so made on him to the persons and at the times and places
appointed by the Directors. A call may be made payable by
instalments.
20. A call shall be deemed to have been made at the time
when the resolution of the Directors authorizing such call was
passed.
21. At least fourteen days' notice of any call shall be
given and such notice shall specify the time and place at which
and the person to whom such call shall be paid.
22. If the sum payable in respect of any call or instalment
is not paid on or before the day appointed for the payment
thereof, the holder for the time being of the share in respect of
which the call has been made or the instalment is due shall pay
interest on such call or instalment at the rate of ten per centum
per annum from the day appointed for the payment thereof up to
the time of actual payment.
23. At the trial or hearing of any action for the recovery
of any money due for any call, it shall be sufficient to prove
that the name of the shareholder sued is entered on the Register
as the holder or one of the holders of the share or shares in
respect of which such debt accrued, that the resolution making
the call is duly recorded in the minute book and that notice of
such call was duly given to the shareholder sued in pursuance of
these Articles. It shall not be necessary to prove the
appointment of the Directors who made such call or any other
matters whatsoever and the proof of the matters stipulated shall
be conclusive evidence of the debt.
24. The Directors may, if they think fit, receive from any
shareholder willing to advance it, all or any part of the moneys
due upon shares held by him beyond the sums actually called for;
and, upon the moneys so paid or satisfied in advance or so much
thereof as from time to time exceeds the amount of the calls then
made upon the shares in respect of which such advance has been
made, the Company may pay interest at such rate, not exceeding
ten per centum per annum, as the shareholder paying such sum in
advance and the Directors agree upon, or the Directors may agree
with such shareholder that he may participate in profits upon the
amount so paid or satisfied in advance.
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FORFEITURE OF SHARES
25. If any shareholder fails to pay any call or instalment
on or before the day appointed for payment, the Directors may at
any time thereafter while the call or instalment remains unpaid,
serve a notice on such shareholder requiring him to pay the call
or instalment together with any interest that may have accrued
and all expenses that may have been incurred by the Company by
reason of such nonpayment.
26. The notice shall name a day (not being less than
fourteen days after the date of the notice) and a place or places
on and at which such call or instalment and such interest and
expenses are to be paid. The notice shall also state that, in
the event of nonpayment on or before the day and at the place or
one of the places so named, the shares in respect of which the
call was made or instalment is payable will be liable to be
forfeited.
27. If the requirements of any such notice are not complied
with, any shares in respect of which such notice has been given
may at any time thereafter, before payment of all calls or
instalments, interest and expenses due in respect thereof, be
forfeited by a resolution of the Directors to that effect. Such
forfeiture shall include all dividends declared in respect of the
forfeited shares and not actually paid before the forfeiture.
28. When any share has been so forfeited, notice of the
resolution shall be given to the shareholder in whose name it
stood immediately prior to the forfeiture and an entry of the
forfeiture shall be made in the register.
29. Any share so forfeited shall be deemed the property of
the Company and the Directors may sell, re-allot or otherwise
dispose of it in such manner as they think fit.
30. The Directors may at any time before any share so
forfeited has been sold, re-allotted or otherwise disposed of,
annul the forfeiture thereof upon such conditions as they think
fit.
31. Any shareholder whose shares have been forfeited shall
nevertheless be liable to pay and shall forthwith pay the Company
all calls, instalments, interest and expenses owing upon or in
respect of such shares at the time of the forfeiture together
with interest thereon at the rate of ten per centum per annum
from the time of forfeiture until payment. The Directors may
enforce such payment if they think fit but are under no
obligation to do so.
32. A certificate in writing under the hands of one of the
Directors and countersigned by the Secretary stating that a share
has been duly forfeited on the specified date in pursuance of
these Articles and the time when it was forfeited shall be
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conclusive evidence of the facts therein stated as against all
persons who would have been entitled to the share but for such
forfeiture.
LIEN ON SHARES
33. The Company shall have a first and paramount lien upon
all shares (other than fully paid up shares) registered in the
name of each shareholder (whether solely or jointly with others)
and upon the proceeds from the sale thereof for his debts,
liabilities and other engagements, solely or jointly with any
other person, to or with the Company, whether or not the period
for the payment, fulfilment or discharge thereof has actually
arrived, and such lien shall extend to all dividends from time to
time declared in respect of such shares. Unless otherwise
agreed, the registration of a transfer of shares shall operate as
a waiver of any lien of the Company on such shares.
34. For the purpose of enforcing such lien the Directors
may sell the shares subject to it in such manner as they think
fit; but no sale shall be made until the period for the payment,
fulfilment or discharge of such debts, liabilities or other
engagements has arrived and until notice in writing of the
intention to sell has been given to such shareholder, his
executors or administrators and default has been made by him or
them in such payment, fulfilment or discharge for seven days
after such notice.
35. The net proceeds of any such sale after the payment of
all costs shall be applied in or towards the satisfaction of such
debts, liabilities or engagements and the residue, if any, shall
be paid to such shareholder or his executors, administrators or
assigns.
VALIDITY OF SALES
36. Upon any sale after forfeiture or the enforcing of a
lien in purported exercise of the powers given by these Articles,
the Directors may cause the purchaser's name to be entered in the
Register in respect of the shares sold and the purchaser shall
not be bound to see to the regularity of the proceedings or to
the application of the purchase money and after his name has been
entered in the Register in respect of such shares, the validity
of the sale shall not be impeached by any person and the remedy
of any person aggrieved by the sale shall be in damages only and
against the Company exclusively.
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PRIVATE COMPANY STATUS
37. (1) No transfer of prescribed securities shall be
registered unless and until the Directors have by a resolution
approved the transfer of such prescribed securities and the
registration of the transfer and the Directors shall be under no
obligation to give such approval or to give any reason for
withholding the same.
(2) The number of holders of prescribed securities of the
Company exclusive of persons who are in the employment of the
Company shall not exceed fifty (50) in number, two or more
persons holding one or more prescribed securities jointly being
counted as a single holder.
(3) The Company shall not distribute any of its prescribed
securities or securities convertible into or exchangeable for
prescribed securities to the public.
(4) In sub-articles (1) and (3), "prescribed securities"
means prescribed securities within the meaning of the definition
of "private Company" contained in the Securities Act and
"distribute" and "securities" have the meanings ascribed to those
terms in the Securities Act.
TRANSFER OF SHARES
38. The instrument of transfer of any share in the Company
shall be signed by the transferor. The transferor shall be
deemed to remain the holder of such share until the name of the
transferee is entered in the Register in respect thereof and
shall be entitled to receive any dividend declared thereon before
the registration of the transfer.
39. The instrument of transfer of any share shall be in
writing:
(1) in the following form;
(2) in a form as near as circumstances permit to the
following form;
(3) in such form as may be approved by the Directors; or
(4) in such form as may be approved by the members who are
the holders of more than fifty percent (50%) of the
shares entitled to vote at an ordinary general meeting
of the Company:
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For value received __________________hereby sells, assigns and
transfers unto ______________________ shares of the capital stock
of the Company represented by the within certificate and does
hereby irrevocably constitute and appoint ________________
Attorney to transfer such stock on the books of the Company with
full power of substitution in the premises.
Dated this day of , .
In the Presence of
Witness
40. The Directors may, without assigning any reason
therefor, decline to register any transfer of shares not fully
paid up or upon which the Company has a lien.
41. Every instrument of transfer shall be left at the
office of the Company or its transfer agent where the principal
or a branch Register of members is maintained for registration
together with the certificate of the shares to be transferred and
such other evidence as the Company may require to prove the title
of the transferor or his right to transfer the shares.
42. A fee not exceeding five dollars ($5.00) may be charged
for each transfer and shall, if required by the Directors, be
paid before its registration.
43. Every instrument of transfer shall after its
registration, remain in the custody of the Company. Any
instrument of transfer that the Directors decline to register
shall, except in case of fraud, be returned to the person who
deposited it.
44. The transfer books and Register of members may be
closed during such time as the Directors think fit, not exceeding
in the whole thirty (30) days in each year, notice of which shall
be given by advertisement in some newspaper circulating in the
district in which the registered office of the Company is
situate.
TRANSMISSION OF SHARES
45. The executors or administrators of a deceased member
(not being one of several joint holders) shall be the only
persons recognized by the Company as having any title to the
shares registered in the name of such member. When a share is
registered in the names of two or more joint holders, the
survivor or survivors of the executors or administrators of the
deceased shall be the only persons recognized by the Company as
having any title to or interest in such share.
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46. (1) Any person becoming entitled to shares in consequence
of the death or bankruptcy of any member or in any way other than
by allotment or transfer upon producing such evidence of his
being entitled to act in the capacity claimed or of his title as
the Directors think sufficient, may, with the consent of the
Directors (which they shall not be under any obligation to give)
be registered as a member in respect of such shares, or may,
without being registered, transfer such shares subject to the
provisions of these Articles respecting the transfer of shares.
The Directors shall have the same right to refuse to register a
person entitled by transmission to any shares, or his nominee, as
if he were the transferee named in an ordinary transfer presented
for registration.
(2) Notwithstanding anything in these Articles, if the
Company has only one member (not being one of several joint
holders) and that member dies, then the executors or
administrators of such deceased member shall be entitled to
register themselves in the register of members as the holders of
such deceased member's share whereupon they shall have all the
rights given by these Articles and law to members.
SHARE WARRANTS
47. The Company, with respect to fully paid-up shares, may
issue under its Common Seal warrants (hereinafter called "Share
Warrants") stating that the bearer is entitled to the shares
therein specified, and may provide, by coupons or otherwise, for
the payment of future dividends on the shares included in such
warrants.
48. The Directors may determine, and from time to time
vary, the conditions upon which Share Warrants will be issued
and, in particular, the conditions upon which a new Share Warrant
or coupon will be issued in the place of one worn out, defaced,
lost or destroyed, or upon which the bearer of a Share Warrant
will be entitled to attend and vote at general meetings, or upon
which a Share Warrant may be surrendered and the name of the
bearer entered in the Register in respect of the shares therein
specified. Subject to such conditions and to these Articles the
bearer of a Share Warrant shall be a member to the full extent.
The bearer of a Share Warrant shall be subject to the conditions
for the time being in force, whether made before or after the
issue of such warrant.
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INCREASE AND REDUCTION OF CAPITAL
49. The Company may from time to time, by a resolution of
its shareholders passed at a general meeting, increase its
capital by the creation of new shares of such amount as it thinks
expedient.
50. The new shares may be issued upon such terms and
conditions and with such rights and privileges annexed thereto as
the Company in general meeting determines or, if no direction is
given, as the Directors determine, and in particular (but without
limiting the generality of the foregoing) such shares may be
issued with a preferential or qualified right to dividends and to
the assets of the Company upon distribution and with a special or
without any right of voting.
51. The Company in general meeting may, before the issue of
any new shares, determine that such shares or any of them, shall
be offered in the first instance to all the then members or to
the members of any class of shareholders in proportion to the
amount of the capital held by them, or make any other provisions
as to the issue and allotment of such shares. In default of any
such determination or to the extent that it does not apply, the
new shares may be dealt with as if they formed part of the shares
in the original capital.
52. Except so far as otherwise provided by the conditions
of issue or these Articles, any capital raised by the creation of
new shares shall be considered part of the original capital and
shall be subject to the provisions herein contained with
reference to payment of calls and instalments, transfer and
transmission, forfeiture, lien and otherwise.
53. The Company may from time to time by special resolution
reduce its share capital and any capital redemption reserve fund
in any way and with and subject to any incident authorized and
consent required by law.
54. Any action proposed to be taken by the Company pursuant
to Articles 49 and 51 shall, where and to the extent that
subsection 12(1) of the Third Schedule to the Act applies to such
action, be subject to the additional approvals required by that
subsection and those Articles shall not apply to limit the
otherwise application of that subsection.
ALTERATION OF CAPITAL
55. The Company may from time to time in general meeting
consolidate and divide all or any of its share capital into
shares of larger amount than its existing shares.
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56. The Company may from time to time in general meeting
convert all or any of its paid-up shares into stock and re-
convert that stock into paid-up shares of any denomination.
57. The Company may from time to time by special resolution
subdivide its shares, or any of them, into shares of smaller
amount than is fixed by the Memorandum of Association so,
however, that in the subdivision the proportion between the
amount paid and the amount, if any, unpaid on each reduced share
shall be the same as it was in the case of the share from which
the reduced share is derived. The special resolution whereby any
share is subdivided may determine that, as between the holders of
the shares resulting from such subdivision, one or more of such
shares shall have some preference or special advantage as regards
dividend, capital, voting or otherwise, over or as compared with,
the others or other.
58. The Company may from time to time in general meeting
exchange shares of one denomination for another.
59. The Company may from time to time in general meeting
cancel shares which, at the date of the passing of the resolution
in that behalf, have not been taken or agreed to be taken by any
person, and diminish the amount of its share capital by the
amount of the shares so cancelled.
60. The Company may from time to time by special resolution
convert any part of its unissued share capital into preference
shares redeemable or purchasable by the Company in the manner
provided in the Act.
61. The Company may from time to time by special resolution
provide for the issue of shares without nominal or par value
provided that, upon any such issue, a declaration executed by the
Secretary of the Company must be filed with the Registrar stating
the number of shares issued and the amount received therefor.
62. The Company may from time to time by special resolution
convert all or any of its previously authorized, unissued or
issued, fully paid-up shares other than preferred shares, with
nominal or par value into the same number of shares without any
nominal or par value and reduce, maintain or increase accordingly
its liability on any of its shares so converted; provided that
the power to reduce its liability on any of its shares so
converted may, where it results in a reduction of capital, only
be exercised subject to confirmation by the courts as provided by
the Act.
63. The Company may from time to time by special resolution
convert all or any of its previously authorized, unissued or
issued, fully paid-up shares without nominal or par value into
the same or a different number of shares with nominal or par
value. For such purpose the shares issued without nominal or par
value and replaced by shares with a nominal or par value shall be
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considered as fully paid but their aggregate par value shall not
exceed the value of the net assets of the Company as represented
by the shares without nominal or par value before the conversion.
64. (1) Subject to the Act and subject to the provisions which
may be attached to any class of shares from time to time, the
Company may:
(a) purchase, redeem or acquire any preference
shares which, by their conditions, may be
redeemed;
(b) purchase or otherwise acquire any other shares
issued by it.
(2) The Directors may, subject to such provisions and
conditions, determine the manner and the terms for:
(a) purchasing, redeeming or acquiring such
preference shares; and
(b) purchasing or otherwise acquiring any other
shares issued by it.
(3) The Directors may, subject to such provisions and
conditions determine the manner and the terms for redeeming or
purchasing such preference shares and may from time to time
provide a sinking fund on such terms as they think fit for the
redemption or purchase of such preference shares of any class or
series.
65. Any action proposed to be taken by the Company pursuant
to Articles 55 to 64 inclusive, shall, where and to the extent
that subsection 12(1) of the Third Schedule to the Act applies to
such action, be subject to the additional approvals required by
that subsection and those Articles shall not apply to limit the
otherwise application of that subsection.
INTEREST ON SHARE CAPITAL
66. The Company may pay interest at a rate not exceeding
ten per centum (10%) per annum on share capital issued and paid-
up for the purpose of raising money to defray the expenses of the
construction of any works or buildings or the provision on any
plant which cannot be operated profitably for a lengthy period of
time. Such interest may be paid for such period and may be
charged to capital as part of the cost of construction of the
work or building or of the provision of the plant. The payment
of the interest shall not operate to reduce the amount paid-up on
the shares in respect of which it is paid. The accounts of the
Company shall show full particulars of the payment during the
period to which the accounts relate.
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CLASSES OF SHARES
67. (1) Subject to the provisions of the Company's Memorandum
of Association and without prejudice to any special rights
previously conferred on the holders of existing shares, any share
may be issued with such preferred, deferred or other special
rights or with such restrictions, whether in regards to
dividends, voting, return of share capital or otherwise, as the
Company may from time to time determine by special resolution.
(2) Any preference shares may, with the sanction of a
special resolution of the Company, be issued on the terms that
they are, at the option of the Company, liable to be redeemed or
purchased by the Company.
(3) Any action proposed to be taken by the Company pursuant
to this Article shall, where and to the extent that subsection
12(1) of the Third Schedule to the Act applies to such action, be
subject to the additional approvals required by that subsection
and this Article shall not apply to limit the otherwise
application of that subsection.
MODIFICATION OF RIGHTS OF SHAREHOLDERS
68. If at any time the share capital of the Company, by
reason of the issue of preference shares or otherwise, is divided
into different classes of shares, in pursuance of the provisions
of the next preceding Article or otherwise, all or any of the
rights and privileges attached to any such class may, subject to
such additional approvals required by subsection 12(1) of the
Third Schedule to the Act, be modified, altered, varied,
affected, commuted, abrogated or otherwise dealt with by
agreement between the Company and any person purporting to
contract on behalf of that class, provided such agreement is
ratified in writing by the holders of at least a three-quarters
majority in number of the issued shares of the class or by a
resolution passed by the same majority, and all the provisions
hereinafter contained as to general meetings shall, mutatis
mutandis, apply to every meeting of such class of shareholders
convened for such purpose, save that the quorum for such a
meeting shall be members holding or representing by proxy one-
half in number of the issued shares of the class. This Article
shall not be deemed by implication to curtail the power of
modification which the Company would have if the Article were
omitted.
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SURRENDER OF SHARES
69. The Directors may accept the surrender of any share by
way of compromise of any question as to the holder being properly
registered in respect thereof. Any share so surrendered may be
disposed of in the same manner as a forfeited share.
BORROWING POWERS
70. The Directors on behalf of the Company may from to time
in their discretion:
(1) raise or borrow money for the purpose of the Company or
any of them;
(2) secure, subject to compliance with Section 102 of the
Act, the repayment of moneys so raised or borrowed in
such manner and upon such terms and conditions in all
respects as they think fit and, in particular, by the
execution and delivery of mortgages of the Company's
real or personal property, or by the issue of bonds,
debentures or debenture stock of the Company secured by
mortgage or other charge upon all or any part of the
property of the Company, both present and future,
including its uncalled capital for the time being;
(3) sign or endorse bills, notes, acceptances, cheques,
contracts and other evidence of or securities for money
borrowed or to be borrowed for the purposes aforesaid;
(4) pledge debentures as security for loans.
71. Bonds, debentures and other securities may be made
assignable, free from any equities between the Company and the
person to whom such securities were issued.
72. Any bonds, debentures and other securities may be
issued at a discount, premium or otherwise and with special
privileges as to redemption, surrender, drawings, allotment of
shares, attending and voting at general meetings of the Company,
appointment of Directors and other matters.
SHAREHOLDERS RESOLUTIONS
73. (1) A resolution, including a special resolution, in
writing and signed by every shareholder who would be entitled to
vote on the resolution at a meeting is as valid as if it was
passed by such shareholders at a meeting and satisfied all the
requirements of the Act respecting meetings of shareholders. Any
such resolution may be signed in counterpart.
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(2) A copy of every resolution referred to in subsection
(1) shall be kept with the minutes of proceedings of share-
holders.
MEETINGS
74. Ordinary general meetings shall be held at least once
in every calendar year at such time and place as may be
determined by the Directors and not later than fifteen months
after the preceding ordinary general meeting. All other meetings
of the Company shall be called special general meetings.
75. The Directors may, whenever they think fit, convene a
special general meeting and they shall, on the requisition of
members of the Company holding not less than five percent (5%) of
the shares of the Company carrying the right to vote at the
meeting sought to be held, forthwith proceed to convene a special
general meeting of the Company to be held at such time and place
as may be determined by the Directors.
76. The requisition shall state the objects of the meeting
requested, be signed by the members making it and deposited at
the registered office of the Company. It may consist of several
documents in like form each signed by one or more of the
requisitionists.
77. If the Directors do not proceed to cause a meeting to
be held within thirty (30) days from the date that the
requisition is so deposited, the requisitionist, or a majority of
them in value, may themselves convene a meeting, provided it is
held within ninety (90) days after the date of the deposit of the
requisition.
78. If at any such meeting a resolution requiring
confirmation at another meeting is passed, the Directors shall
forthwith convene a further special general meeting for the
purpose of considering such resolution and, if thought fit, of
confirming it as a special resolution; and, if the Directors do
not convene the meeting within seven (7) days from the date of
the passing of the first resolution, the requisitionists, or a
majority of them in value, may themselves convene the meeting.
79. Such meetings shall be convened as nearly as possible
as meetings are to be convened by the Directors.
80. At least seven (7) clear days notice of every general
meeting, except in the case of general meetings where subsections
12(1) or (2) of the Third Schedule to the Act applies, then at
least twenty-one clear days' notice shall be given specifying the
place, day and hour of the meeting and, when special business is
to be considered, the general nature of such business, shall be
given to the members entitled to be present at such meeting by
notice sent by post or otherwise. With the consent in writing of
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all members entitled to vote at such meeting, a meeting may be
convened if all the members are present at a meeting either in
person or by proxy or if those absent have signified their assent
to such meeting or their consent to the business transacted at
such meeting and notice, however given, shall be adequate if all
those present waive further notice of the time, place and purpose
of the meeting.
81. When it is proposed to pass a special resolution, the
two meetings may be convened by the same notice and it shall be
no objection to such notice that it only convenes the second
meeting contingently upon the resolution being passed by the
requisite majority at the first meeting.
82. The accidental omission to give any such notice to any
of the members or the failure of any shareholder to receive such
notice shall not invalidate any resolution passed at any such
meeting.
PROCEEDINGS AT GENERAL MEETINGS
83. The business of any ordinary general meeting shall be:
(1) to receive and consider the financial statements of the
Company, the reports of the Directors and of the
auditors, if any, to elect Directors in the place of
those retiring and to transact any other business which
under these Articles ought to be transacted at an
ordinary general meeting;
(2) to elect Directors;
(3) to transact any other business which, under these
Articles, may be transacted at an ordinary general
meeting;
(4) to transact, if proper notice is given, any business
which may be transacted at a special general meeting.
84. No business shall be transacted at any general meeting
unless the quorum requisite is present at the commencement of the
business. A corporation that is a member of the Company and has
a duly authorized agent or representative present at any such
meeting shall for the purpose of this Article be deemed to be
personally present at such meeting.
85. One member personally present and entitled to vote
shall be a quorum for a general meeting for the choice of a
chairman and the adjournment of the meeting. The quorum for a
general meeting shall be members personally present and entitled
to vote and holding or representing by proxy not less than fifty-
one percent (51%) of the issued shares of the Company as confer
upon the holder thereof the right to vote at such meeting, except
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if an ordinary general meeting (the "First Meeting") has been
duly called and a quorum was not present thereat, then if a
further ordinary general meeting (the "Second Meeting") is duly
called to be held on a day for which the First Meeting was
called, the quorum for the Second Meeting shall be members
personally present and entitled to vote and holding or
representing by proxy not less than one-tenth in number of such
of the issued shares of the Company as confer upon the holder
thereof the right to vote at such meeting.
86. The Chairman of the Board shall be entitled to take the
chair at every general meeting or, if there be no Chairman of the
Board, or if he is not present within fifteen minutes after the
time appointed for holding the meeting, the President, or failing
him, a Vice-President shall be entitled to take the chair. If
the Chairman, the President or a Vice-President is not present
within fifteen minutes after the time appointed for holding the
meeting, the members present entitled to vote at the meeting
shall choose another Director as chairman and, if no Director is
present or if all the Directors present decline to take the
chair, then the members present entitled to vote shall choose one
of their number to be chairman.
87. If within half an hour from the time appointed for the
meeting a quorum is not present, the meeting, if it was convened
pursuant to a requisition, under Articles 75-79, shall be
dissolved; if it was convened in any other way, it shall stand
adjourned to the same day, in the next week, at the same time and
place. If at such adjourned meeting a quorum is not present,
those members entitled to vote who are present shall be a quorum
and may transact the business for which the meeting was called.
88. At any general meeting a resolution put to the meeting
shall be decided by show of hands unless, either before or on the
declaration of the result of the show of hands, a poll is
demanded by (i) the chairman or (ii) by a proxyholder, a member
or members or proxyholder holding or representing by proxy at
least one-tenth in number of the issued shares of the Company
that confer upon their holders the right to vote at the meeting.
89. When a resolution is decided by a show of hands, a
declaration by the chairman that a resolution has been carried,
carried by a particular majority, lost or not carried by a
particular majority and an entry to that effect in the Company's
book of proceedings shall be conclusive evidence of the fact
without proof of the number or proportion of the votes recorded
in favour or against such resolution.
90. When a poll is demanded, it shall be taken in such
manner at such time and place as the chairman of the meeting
directs, and either at once or after an interval of adjournment
or otherwise. The result of the poll shall be deemed to be the
resolution of the meeting at which the poll was demanded. The
demand of a poll may be withdrawn. When any dispute occurs over
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the admission or rejection of a vote, it shall be resolved by the
chairman and such determination made in good faith shall be final
and conclusive.
91. Where there is an equality of votes, either on the show
of hands or on a poll, the chairman shall not have a casting vote
in addition to the vote or votes he has as a member.
92. The chairman of a general meeting may, with the consent
of a majority of the members present, adjourn the meeting from
time to time and from place to place, but no business shall be
transacted at any adjourned meeting other than the business left
unfinished at the meeting that was adjourned.
93. Any poll demanded on the election of a chairman of a
meeting or any question of adjournment shall be taken at the
meeting without adjournment.
94. The demand of a poll shall not prevent the continuance
of a meeting for the transaction of any business other than the
question on which a poll has been demanded.
VOTES OF MEMBERS
95. (1) Subject to the Act and the provisions applicable to any
shares issued under conditions limiting or excluding the right of
holders thereof to vote at general meetings, on a show of hands
every member present in person and every proxyholder shall,
subject to subsection 85F (2) of the Act, have one vote, and upon
a poll every member present in person or by proxy shall have one
vote for every share held by him.
(2) Where a Corporation being a member is represented by a
proxyholder who is not a member or by a representative duly
authorized under the Act, such proxyholder or representative
shall be entitled to vote for such Corporation either on a show
of hands or at a poll.
96. Any person entitled under Article 46 to transfer any
shares may vote at any general meeting in respect thereof in the
same manner as if he were the registered holder of such shares so
long as he, at least forty-eight hours before the time of holding
the meeting or adjourned meeting at which he proposes to vote,
satisfies the Directors of his right to transfer such shares.
97. Where there are joint registered holders of any share,
any one of such persons may vote such share at any meeting,
either personally or by proxy, as if he were solely entitled to
it. If more than one of such joint holders is present at any
meeting, personally or by proxy, the one whose name stands first
on the register in respect of such share shall alone be entitled
to vote it. Several executors or administrators of a deceased
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member in whose name any share stands shall for the purpose of
this Article be deemed joint holders thereof.
98. Votes may be cast either personally or by proxy or, in
the case of a corporation, by a representative duly authorized
under the Act.
99. A proxy shall be in writing under the hand of the
appointer or of his attorney duly authorized in writing, or, if
such appointer is a corporation , under its common seal or the
hand of its attorney or representative authorized in the manner
referred to in clause 86 (1) (a) of the Act.
100. The Directors may from time to time make regulations
regarding the lodging of proxies at some place other than the
place at which a meeting or adjourned meeting of members is to be
held and for particulars of such proxies to be cabled or
telegraphed or sent by telex or in writing before the meeting or
adjourned meeting to the Company or any agent of the Company for
the purpose of receiving such particulars and providing that
proxies so lodged may be voted upon as though proxies themselves
were produced at the meeting or adjourned meeting and votes given
in accordance with such regulations shall be valid and shall be
counted. The Chairman of any meeting of members may, subject to
any regulation made as aforesaid, in his discretion accept
telegraphic or cable or telex or written communication from the
appointer or his lawful attorney as to the authority of any
persons claiming to vote on behalf of and to represent a member
notwithstanding that no proxies conferring such authority have
been lodged with the Company and any votes given in accordance
with such telegraphic or cable or telex or written communication
accepted by the Chairman of the meeting shall be valid and shall
be counted.
101. A member of unsound mind in respect of whom an order
has been made by any court having jurisdiction in lunacy may vote
by his guardian or other person in the nature of a guardian
appointed by that court and any such guardian or other person may
vote by proxy.
102. (1) A proxy and the power of attorney or other authority,
if any, under which it is signed or a notarially certified copy
of that power or authority shall be deposited at the office not
less than forty-eight hours excluding Saturdays and holidays
before the meeting or adjourned meeting at which it is to be
voted unless the Directors, by resolution, determine otherwise,
but a proxy shall cease to be valid one year after its date.
Notice of the requirement for depositing proxies shall be given
in the notice calling the meeting.
(2) A vote given in accordance with the terms of a proxy
shall be valid notwithstanding the previous death of the
principal, the revocation of the proxy, or the transfer of the
share in respect of which the vote is given, provided no
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intimation in writing of the death, revocation or transfer is
received at the office of the Company before the meeting or by
the chairman of the meeting before the vote is given.
103. Every form of proxy when the Company is not a reporting
issuer, whether for a specified meeting or otherwise shall, as
nearly as circumstances will admit, be in the form or to the
effect following; or in such other form as the Directors may from
time to time determine which complies with the regulations made
pursuant to the Act:
I......... of ............ in the County of ......... being
a member of ......... Limited, hereby appoint ........ of (or
failing him.......of......or failing him ....... of ... ......)
as my proxy to attend and vote for me and on my behalf at the
ordinary general (or special general as the case may be) meeting
of the Company, to be held on the ....... day of...... and at any
adjournment thereof, or at any meeting of the Company which may
be held within ....... months from the date thereof.
[a statement as to whether or not the proxy is
solicited by or on behalf of management of the Company]
As witness my hand this .... day of ........., 19 ...
Witness .................................
Shareholder..............................
104. No member shall be entitled to be present or to vote on
any question, either personally or by proxy or as proxy for
another member, at any general meeting or upon a poll, or be
reckoned in a quorum whilst any call or other sum is due and
payable to the Company in respect of any of the shares of such
member.
105. (1) Any resolution passed by the Directors, notice whereof
shall be given to the members in the manner in which notices are
hereinafter directed to be given and which shall, within one
month after it has been passed, be ratified and confirmed in
writing by members entitled on a poll to three-fifths of the
votes, shall be as valid and effectual as a resolution of a
general meeting, but this Article shall not apply to a resolution
passed in respect of any matter which by statute or these
presents ought to be dealt with by special resolution, or any
action which, by virtue of subsection 12(1) of the Third Schedule
to the Act, requires approval in accordance with that subsection.
(2) Where the Company has only one member, all business
which the Company may transact at annual or special meetings of
members shall be transacted in the manner specified in Article
85.
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DIRECTORS
106. Unless otherwise determined by general meeting, the
number of Directors shall not be less than one or more than ten.
At any time prior to the vote being taken respecting the election
of Directors, the meeting may determine the number of Directors
to be elected thereat provided that the number so determined
shall not be deemed to be a variation in the maximum number of
Directors permitted in the Articles unless specifically otherwise
determined.
107. Notwithstanding anything herein contained the
subscribers to the Memorandum of Association of the Company shall
be the first Directors of the Company.
108. The Directors shall have power at any time from time to
time to appoint any other person as a Director so long as the
total number of Directors does not at any time exceed the maximum
permitted. No such appointment shall be effective unless two-
thirds of the Directors concur in it.
109. Notwithstanding anything else herein contained a
Director may but not need be a member.
110. A Director may retire from office upon lodging at the
Registered Office of the Company his written resignation, which
resignation shall become effective in accordance with its tenor.
111. The Directors shall be paid out of the funds of the
Company as remuneration for their service such sums, if any, as
the Company in general meeting may determine and such
remuneration shall be divided among them in such proportions and
manners as the Directors determine. The Directors may also be
paid their reasonable travelling, hotel and other expenses
incurred in attending board meetings and the execution of their
duties as Directors.
112. The continuing Directors may act notwithstanding any
vacancy in their body, but if the number falls below the minimum
permitted, the Directors shall not, except in emergencies or for
the purpose of filling up vacancies, act so long as the number is
below the minimum.
113. A Director may, in conjunction with the office of
Directors, and on such terms as to remuneration and otherwise as
the Directors arrange or determine, hold any other office or
place of profit under the Company or under any company in which
this Company is a shareholder or is otherwise interested.
114. The office of a Director shall ipso facto be vacated:
(1) if he becomes bankrupt, makes an authorized assignment,
suspends payment or compounds with his creditors; or
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(2) if he is found a lunatic or becomes of unsound mind; or
(3) if by notice in writing to the Company he resigns his
office; or
(4) if he is removed by special resolution as provided by
Article 119.
115. No Director shall be disqualified by his office from
contracting with the Company, either as vendor, purchaser, or
otherwise, nor shall any such contract, or any contract or
arrangement entered into or proposed to be entered into by or on
behalf of the Company in which any Director is in any way
interested, either directly or indirectly, be avoided, nor shall
any Director so contracting or being so interested be liable to
account to the Company for any profit realized by any such
contract or arrangement by reason only of such Director holding
that office or of the fiduciary relation thereby established.
However, the existence and nature of his interest must be
declared by him at a meeting of the Directors of the Company. In
the case of a proposed contract such Director shall declare his
interest at the meeting of Directors at which the question is
first taken into consideration, or if he was not then interested,
at the next meeting held after he became so interested, and when
he becomes interested after it is made, he shall declare his
interest at the first meeting held after he becomes so
interested. A general notice given to the Directors by a
Director that he is a member, shareholder or Director of any
specified firm or company shall be deemed to be a sufficient
declaration under this Article and no further or other notice
shall be required. No Director shall as a Director vote in
respect of any contract or arrangement in which he is so
interested, and if he does vote, his vote shall not be counted.
This prohibition may at any time or times be suspended or relaxed
to any extent by a general meeting and shall not apply to any
contract by or on behalf of the Company to give to the Directors
or any of them any security for advances or by way of indemnity.
Where there is only one member and that member is the sole
Director, this prohibition shall be deemed to have been suspended
by a general meeting and the Director shall be entitled to vote
in respect of any contract or arrangement in which he is so
interested, and if he does so vote his vote shall be counted.
ELECTION OF DIRECTORS
116. Subject to Article 117, at the dissolution of every
annual ordinary general meeting all the Directors shall retire
from office and be succeeded by the Directors elected at such
meeting. Retiring Directors shall be eligible for re-election at
such meeting.
117. If at any ordinary general meeting at which an election
of Directors ought to take place no such election takes place, or
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if no ordinary general meeting is held in any year or period of
years, the retiring Directors shall continue in office until
their successors are elected and a general meeting for that
purpose may on notice be held at any time.
118. The Company in general meeting may from time to time
increase or reduce the number of Directors and may determine or
alter their qualification.
119. The Company may, by special resolution, remove any
Director before the expiration of the period of office and
appoint another person in his stead. The person so appointed
shall hold office during such time only as the Director in whose
place he is appointed would have held office if he had not been
removed.
120. Any casual vacancy occurring among the Directors may be
filled by the Directors, but any person so chosen shall retain
office so long as the vacating Director would have retained it if
he had continued as a Director.
MANAGING DIRECTORS
121. The Directors may from time to time appoint one or more
of their body to be Managing Director or Managing Directors of
the Company, either for a fixed term or without any limitation as
to the period for which he is or they are to hold such office,
and may from time to time remove or dismiss him or them from
office and appoint another or others in his or their place or
places.
122. A Managing Director shall, subject to the provisions of
any contract between him and the Company, be subject to the same
provisions as to resignation and removal as the other Directors
of the Company, and if for any reason he ceases to hold the
office of Director, he shall ipso facto, immediately cease to be
a Managing Director.
123. The remuneration of a Managing Director shall from time
to time be fixed by the Directors and may be by way of salary,
commission, participation in profits or any combination of these
modes.
124. The Directors may from time to time entrust to and
confer upon the Managing Director for the time being such powers,
exercisable under these Articles by the Directors as they think
fit, and may confer such powers for such time, and to be
exercised for such objects and purposes and upon such terms and
conditions, and with such restrictions as they think expedient;
and they may confer such powers either collaterally with, or to
the exclusion of and in substitution for all or any of the powers
of the Directors in that behalf; and may from time to time
revoke, withdraw, alter or vary all or any of such powers.
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PRESIDENT AND VICE-PRESIDENTS
125. (1) The Directors shall elect the President of the Company
(who need not be a Director) and may determine the period for
which he is to hold office. The President shall have general
supervision of the business of the Company and shall perform such
duties as may be assigned to him from time to time by the Board.
(2) The Directors may also elect Vice-Presidents and
determine the period for which they are to hold office. A Vice-
President need not be a Director and any Vice-President shall, at
the request of the President or the Board and subject to the
directions of the Board, perform the duties of the President
during the absence, illness or incapacity of the President.
CHAIRMAN OF THE BOARD
126. The Directors may also elect one of their number to be
Chairman of the Board and may determine the period during which
he is to hold office. He shall perform such duties and receive
such special remuneration as the Board may from time to time
provide.
PROCEEDINGS OF DIRECTORS
127. The Directors may meet together for the dispatch of
business, adjourn and otherwise regulate their meetings and
proceedings as they think fit, and may otherwise determine the
quorum necessary for the transaction of business. Until
otherwise determined, if there is only one Director that Director
shall constitute a quorum and if there is more than one Director,
two Directors shall constitute a quorum.
128. Meetings of Directors may be held either within or
without the Province of Nova Scotia and the Directors may from
time to time make arrangements relating to the time and place of
holding Directors' meetings, the notices to be given for such
meetings and what meetings may be held without notice. Unless
otherwise provided by such arrangements:
(1) a meeting of Directors may be held at the close of
every ordinary general meeting of the Company without
notice;
(2) notice of every other Directors' meeting may be
delivered or mailed or telegraphed or telephoned to
each Director before the meeting is to take place.
Such notice shall be delivered or mailed or telegraphed
or telephoned at least forty-eight hours before the
time fixed for the meeting;
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(3) a meeting of Directors may be held without formal
notice if all the Directors are present or if those
absent have signified their assent to such meeting or
their consent to the business transacted at such
meeting;
(4) a Director may, if all the Directors consent, parti-
cipate in a meeting of Directors by means of telephone
or other communications facilities as permit all
persons participating in the meeting to hear each other
and a Director participating in such meeting by such
means is deemed to be present at that meeting.
129. The President or any one Director may at any time, and
the Secretary, upon the request of the President or any one
Director, shall summon a meeting of the Directors to be held at
the Registered Office of the Company. The President, the
Chairman of the Board or a majority of the Board may at any time
summon a meeting to be held elsewhere.
130. (1) Questions arising at a meeting of Directors shall be
decided by a majority of votes and when there is an equality of
votes the chairman of the meeting shall not have a second or
casting vote.
(2) At any meeting of Directors the chairman shall receive
and count the vote of any Director not present in person at such
meeting on any question or matter arising at such meeting
whenever such absent Director has indicated by telegram, letter
or other writing lodged with the chairman of such meeting the
manner in which he desires to vote on such question or matter and
such question or matter has been specifically mentioned in the
notice calling the meeting as a question or matter to be
discussed or decided thereat. In respect of any such question or
matter so mentioned in such notice any Director may give to any
other Director a proxy authorizing such other Director to vote
for such first named Director at such meeting, and the chairman
of such meeting, after such proxy has been lodged with him, shall
receive and count any vote given in pursuance thereof
notwithstanding the absence of the Director giving such proxy.
131. If no Chairman of the Board is elected, or if at any
meeting of Directors he is not present within five minutes after
the time appointed for holding the meeting, the President, if a
Director, shall preside. If the President, being a Director, is
not present at such time, a Vice-President who is also a Director
shall preside. If neither the President nor a Vice-President who
is also a Director is present at such time, the Directors present
shall choose some one of their number to be chairman of the
meeting.
132. A meeting of the Directors at which a quorum is present
shall be competent to exercise all or any of the authorities,
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powers and discretions for the time being vested in or
exercisable by the Directors generally.
133. The Directors may delegate any of their powers to
committees consisting of such number of members of their body as
they think fit. Any committee so formed shall in the exercise of
the powers so delegated conform to any regulations that may be
imposed on them by the Directors.
134. The meetings and proceedings of any such committee
consisting of two or more members shall be governed by the
provisions contained in these Articles for regulating the
meetings and proceedings of the Directors insofar as they are
applicable and are not superseded by any regulations made by the
Directors.
135. All acts done at any meeting of the Directors or of a
committee of Directors or by any person acting as a Director
shall, notwithstanding that it is afterwards discovered that
there was some defect in the appointment of the Directors or
persons so acting, or that they or any of them were disqualified,
be as valid as if every such person had been duly appointed and
was qualified to be a Director.
136. (1) A resolution in writing and signed by every Director
who would be entitled to vote on the resolution at a meeting is
as valid as if it was passed by such Directors at a meeting. Any
such resolution may be signed in counter-part.
(2) A copy of every resolution referred to in subsection
(a) shall be kept in the minutes of proceedings of the Directors
or committee thereof, as the case may be.
137. If any one or more of the Directors is called upon to
perform extra services or to make any special exertions in going
or residing abroad or otherwise for any of the purposes of the
Company or the business thereof, the Company may remunerate the
Director or Directors so doing, either by a fixed sum or by a
percentage of profits or otherwise. Such remuneration shall be
determined by the Directors and may be either in addition to or
in substitution for his share in the remuneration provided under
Article 111.
REGISTERS
138. The Directors shall cause to be kept at the Company's
head office in accordance with the provisions of the Act a
register of the members of the Company, a register of the bond
and debenture holders of the Company, and a register of its
Directors, Officers and Managers. Branch registers of the
members and the bond and debenture holders may be kept elsewhere,
either within or without Nova Scotia, in accordance with the Act.
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MINUTES
139. The Directors shall cause minutes to be entered in
books designed for the purpose:
(1) of all appointments of officers;
(2) of the names of the Directors present at each meeting
of Directors and of the committees of Directors;
(3) of all orders made by the Directors and committees of
Directors;
(4) of all resolutions and proceedings of meetings of the
Shareholders and of the Directors.
Any such minutes of any meeting of the Directors or of any
committee of the Directors or of the Company, if purporting to be
signed by the chairman of such meeting or by the chairman of the
next succeeding meeting, shall be receivable as prima facie
evidence of the matters stated in such minutes.
POWERS OF DIRECTORS
140. The management of the business of the Company shall be
vested in the Directors who, in addition to the powers and
authorities by these Articles or otherwise expressly conferred
upon them, may exercise all such powers and do all such acts and
things as may be exercised or done by the Company and are not
hereby or by statute expressly directed or required to be
exercised or done by the Company in general meeting, but subject
nevertheless to the provisions of the statutes in that behalf and
of these Articles and to any regulations from time to time made
by the Company in general meeting; provided that no regulation
so made shall invalidate any prior act of the Directors that
would have been valid if such regulation had not been made.
141. Without restricting the generality of the terms of the
last preceding Article and without prejudice to the powers
conferred thereby, and the other powers conferred by these
Articles, the Directors shall have power:
(1) To take such steps as they think fit to carry out any
agreement or contract made by or on behalf of the
Company;
(2) To pay the costs, charges and expenses preliminary and
incidental to the promotion, formation, establishment
and registration of the Company;
(3) To purchase or otherwise acquire for the Company any
property, rights or privileges that the Company is
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<PAGE>
authorized to acquire, and at such price and generally
on such terms and conditions as they think fit;
(4) At their discretion to pay for any property, rights or
privileges acquired by, or services rendered to the
Company either wholly or partially in cash or in
shares, bonds, debentures or other securities of the
Company, and any such shares may be issued either as
fully paid-up, or with such amount credited as paid-up
thereon as may be agreed upon;
(5) Subject to Section 102(2) of the Act, to secure the
fulfilment of any contracts or engagements entered into
by the Company by mortgaging or charging all or any of
the property of the Company and its unpaid capital for
the time being, or in such other manner as they think
fit;
(6) To appoint, remove or suspend at their discretion such
experts, managers, secretaries, treasurers, officers,
clerks, agents and servants for permanent, temporary or
special services, as they from time to time think fit,
and to determine their powers and duties, and fix their
salaries or emoluments and to require security in such
instances and to such amounts as they think fit;
(7) To accept from any member insofar as the law permits
and on such terms and conditions as may be agreed upon
a surrender of his shares or any part thereof;
(8) To appoint any person or persons (whether incorporated
or not) to accept and hold in trust for the Company any
property belonging to the Company, or in which it is
interested, to execute and do all such deeds and things
as may be requisite in relation to any such trust and
to provide for the remuneration of any such trustee or
trustees;
(9) To institute, conduct, defend, compound or abandon any
legal proceedings by or against the Company or its
officers or otherwise concerning the affairs of the
Company, and also to compound and allow time for
payment or satisfaction of any debts due and of any
claims or demands by or against the Company;
(10) To refer any claims or demands by or against the
Company to arbitration and observe and perform the
awards;
(11) To make and give receipts, releases and other
discharges for money payable to the Company and for
claims and demands of the Company;
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(12) To determine who shall be entitled to exercise the
borrowing powers of the Company and sign on the
Company's behalf bonds, debentures or other securities,
bills, notes, receipts, acceptances, assignments,
transfers, hypothecations, pledges, endorsements,
cheques, drafts, releases, contracts, agreements and
all other instruments and documents;
(13) To provide from time to time for the management of the
affairs of the Company abroad in such manner as they
think fit, and in particular to appoint any persons to
be the attorneys or agents of the Company with such
powers (including power to sub-delegate) and upon such
terms as may be thought fit;
(14) To invest and deal with any of the moneys of the
Company not immediately required for the purposes
thereof in such securities and in such manner as they
think fit; and from time to time to vary or realize
such investments;
(15) Subject to Section 102(2) of the Act, to execute in the
name and on behalf of the Company in favour of any
Director or other person who may incur or be about to
incur any personal liability for the benefit of the
Company such mortgages of the Company's property,
present and future, as they think fit, and any such
mortgages of the Company's property, present and
future, as they think fit, and any such mortgages may
contain a power of sale and such other powers,
covenants and provisions as are agreed on;
(16) To give any officer or other person employed by the
Company a commission on the profits of any particular
business or transaction or a share in the general
profits of the Company and such commission or share of
profits shall be treated as part of the working
expenses of the Company;
(17) To set aside out of the profits of the Company before
declaring any dividend such sums as they think proper
as a reserve fund to meet contingencies or provide for
dividends, depreciation, repairing, improving and
maintaining any of the property of the Company and such
other purposes as the Directors may in their absolute
discretion think conducive to the interests of the
Company; and to invest the several sums set aside in
such investments, other than shares of the Company, as
they may think fit, and from time to time to deal with
and vary such investments, and to dispose of all or any
part of them for the benefit of the Company and to
divide the reserve fund into such special funds as they
think fit, with full power to employ the assets
constituting the reserve fund in the business of the
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Company without being bound to keep them separate from
the other assets;
(18) From time to time to make, vary and repeal rules for
the regulation of the business of the Company, its
officers and servants, the members of the Company or
any section or class of them;
(19) To enter into all such negotiations and contracts,
rescind and vary all such contracts, and execute and do
all such acts, deeds and things in the name and on
behalf of the Company as they may consider expedient
for or in relation to any of the matters aforesaid or
otherwise for the purposes of the Company;
(20) From time to time to provide for the management of the
affairs of the Company in such manner as they shall
think fit.
SOLICITORS
142. The Company may employ or retain a solicitor or
solicitors and such solicitor may, at the request of the Board of
Directors or on instructions of the Chairman of the Board, the
President or the Managing Director, attend meetings of the
Directors or Shareholders, whether or not he himself is a member
or a Director of the Company. If such solicitor is also a
Director, he may nevertheless charge for services rendered to the
Company as a solicitor.
SECRETARY AND TREASURER
143. The Directors shall appoint a Secretary of the Company
to keep the minutes of the Shareholders' and Directors' meetings
and perform such other duties as may be assigned to him by the
Board. The Directors may also appoint a temporary substitute for
the Secretary who shall, for the purpose of these Articles, be
deemed to be the Secretary.
144. (1) The Directors may appoint a Treasurer of the Company to
carry out such duties as the Board may assign. If the Directors
think it advisable, the same person may hold the offices of both
Secretary and Treasurer.
(2) The Directors may also from time to time elect or
appoint such other officers, employees and agents as they shall
deem necessary, which will have such authority and shall perform
such duties as from time to time shall be prescribed by the
Directors. The Directors may from time to time by resolution
designate one of the officers of the Company as a chief executive
officer of the Company and may from time to time revoke any such
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<PAGE>
designation. Any two or more offices may be occupied by the same
person.
THE SEAL
145. The Directors shall arrange for the safe custody of the
Common Seal of the Company. The Common Seal shall not be affixed
to any instrument unless authorized by a resolution of the Board
of Directors or of a committee thereof and then only in the
presence of and contemporaneously with the attesting signature of
the Secretary or other officer or person appointed by the Board
for the purpose.
146. The Company may have for use at any place outside Nova
Scotia to which the corporate existence and capacity of the
Company extends, an official seal that is a facsimile of the
Common Seal of the Company with the addition on its face of the
name of the place where it is to be used and the Company may, by
writing under the seal of its Common Seal, authorize any person
to affix such official seal to any document at such place to
which the Company is a party.
DIVIDENDS
147. Subject to the provisions of these Articles and the
rights of those persons, if any, entitled to shares with special
rights to dividends, the profits of the Company may be divided
among the members in proportion to the amount of capital paid-up
on the shares held by them respectively. Where capital is paid-
up in advance of calls upon the footing that it will carry
interest, such capital shall not whilst carrying interest confer
a right to participate in profits.
148. The Directors may from time to time declare such
dividend as they deem proper upon the shares of the Company
according to the rights of the members and the respective classes
thereof and may determine the date upon which such dividend will
be payable and that it will be payable to the persons registered
as the holders of the shares on which it is declared at the close
of business upon a specified date. No transfer of such shares
made or registered after the date so specified shall pass any
right to the dividend declared.
149. (1) Any dividend may be payable if not otherwise prohibited
by law.
(2) Any Director may, at any time and from time to time
express to the Directors in such manner as he may determine his
views on the appropriateness of the payment of any dividend or
may protest against the payment of any dividend and if he
protests the payment of any dividend within ten (10) days of
becoming aware of its declaration and he has not voted in favour
32
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of recommending the payment of the dividend then he shall be
under absolutely no liability to the Company or the members with
respect to the payment of such dividend.
150. The declaration of the Directors as to the amount of
the net profits of the Company shall be conclusive.
151. The Directors may from time to time pay to the members
such interim dividends as in their judgement the position of the
Company justifies.
152. The Directors may deduct from the dividends payable to
any member all such sums of money as may be due and payable by
him to the Company on account of calls, instalments or otherwise
and may apply the same in or towards satisfaction of such sums of
money so due and payable.
153. The Directors may retain any dividends on which the
Company has a lien and may apply the same in or towards
satisfaction of the debts, liabilities or engagements in respect
of which the lien exists.
154. The Directors may retain any dividends payable upon
shares in respect of which any person is, under Article 45,
entitled to become a member, or which any person under that
clause is entitled to transfer, until such person has become a
member in respect of or has duly transferred such shares.
155. Any meeting declaring a dividend may make a call on the
members for such amount as the meeting fixes so long as the call
on each member does not exceed the dividend payable to him. The
call shall be made payable at the same time as the dividend and
the dividend may, if so arranged between the Company and the
member, be set off against the call. The making of a call under
this Article shall be deemed to be and be business of a meeting
which declares such a dividend.
156. Any meeting declaring a dividend may resolve that such
dividend be paid wholly or in part by the distribution of
specific assets, paid-up shares, debentures, bonds or debenture-
stock of the Company or paid-up shares, debentures, bonds or
debenture stock of any other Company, or in any one or more of
such ways.
157. Any meeting may resolve that any moneys, investments or
other assets forming part of the undivided profits of the Company
standing to the credit of the reserve fund or in the hands of the
Company and available for dividends or representing premiums
received on the issue of shares and standing to the credit of the
share premium account, be capitalized and distributed to the
shareholders who would be entitled to receive them if distributed
by way of dividend and in the same proportions, that all or any
part of such capitalized fund be applied on behalf of such
shareholders in paying up in full, either at par or at such
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<PAGE>
premium as the resolution may provide, any unissued shares or
debentures or debenture stock of the Company (which shall be
distributed accordingly) or in or towards payment of the uncalled
liability on any issued shares or debentures or debenture stock,
and that such distribution or payment shall be accepted by such
shareholders in full satisfaction of their interest in the said
capitalized sum.
158. For the purpose of giving effect to any resolution
under the two last preceding Articles, the Directors may settle
any difficulty that may arise in regard to the distribution as
they think expedient and, in particular, may issue fractional
certificates, may fix the value for distribution of any specific
assets, may determine that cash payments will be made to any
members upon the footing of the value so fixed or that fractions
of less value than $5.00 may be disregarded in order to adjust
the rights of all parties, and may vest any such cash or specific
assets in trustees upon such trusts for the persons entitled to
the dividend or capitalized fund as may seem expedient to the
Directors.
159. A transfer of shares shall not pass the right to any
dividend declared thereon after such transfer and before the
registration of the transfer.
160. Anyone of several persons registered as the joint
holder of any share may give effectual receipts for all dividends
and payments on account of dividends in respect of such share.
161. Unless otherwise determined by the Directors, any
dividend may be paid by a cheque or warrant delivered to or sent
through the post to the registered address of the member
entitled, or when there are joint holders, to the registered
address of that one whose name stands first on the register for
the shares jointly held. Every cheque or warrant so delivered or
sent shall be made payable to the other of the person to whom it
is delivered or sent.
162. Notice of the declaration of any dividend, whether
interim or otherwise, shall be given to the holders of registered
shares in the manner hereinafter provided.
163. All dividends unclaimed one year after having been
declared may, until claimed, be invested or otherwise made use of
by the Directors for the benefit of the Company.
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<PAGE>
ACCOUNTS
164. The Directors shall cause proper books of accounts to
be kept of the sums of money received and expended by the Company
and the matters in respect of which such receipt and expenditure
takes place and of all sales and purchases of goods by the
Company and of the assets, creditors and liabilities of the
Company.
165. The books of account shall be kept at the head office
of the Company or at such other place or places as the Directors
may direct.
166. The Directors shall from time to time determine whether
and to what extent and at what times and places and under what
conditions or regulations the accounts and books of the Company
or any of them shall be open to inspection of the members and no
member shall have any right of inspecting any account or book or
document of the Company except as conferred by statute or
authorized by the Directors or a resolution of the Company in
general meeting.
167. At the ordinary general meeting in every year the
Directors shall lay before the Company the financial statements,
report of the auditor, if any, and the report of the Directors
required by subsection 121(1) of the Act.
168. The financial statements shall be approved by the Board
and shall be signed on behalf of the board and at the Board's
discretion by two Directors of the Company or if the Company has
only one Director, by that Director.
169. The Directors shall send copies of the financial
statements together with copies of the auditor's report, if any,
and the report of the Directors, if applicable, to all members
who hold voting securities of the Company and to all other
members entitled to receive notices of general meetings of the
Company at least seven days before the date of the general
meeting before which they are to be placed.
AUDITORS AND AUDIT
170. The Company shall at each ordinary general meeting
appoint an auditor or auditors to hold office until the next
ordinary general meeting. If at any general meeting at which the
appointment of an auditor or auditors is to take place no such
appointment takes place, or if no ordinary general meeting is
held in any year or period of years, the Directors shall appoint
an auditor to hold office until the next ordinary general
meeting.
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<PAGE>
171. The first auditors of the Company may be appointed by
the Directors at any time before the first annual general meeting
and the auditors so appointed shall hold office until such
meeting unless previously removed by a resolution of the
shareholders in general meeting, in which event the shareholders
at such meeting may appoint auditors.
172. The Directors may fill any casual vacancy in the office
of auditor but while any such vacancy continues the surviving or
continuing auditor or auditors, if any, may act.
173. (1) A person is disqualified from being an auditor of the
Company if the person is not independent of the Company, all of
its affiliates, or of the Directors or officers of the Company
and its affiliates.
(2) For the purpose of this Article, independence is a
question of fact; and a person is deemed not to be independent if
the person or the person's business partner:
(a) is a business partner, director, officer or
employee of the Company or any of its
affiliates, or a business partner of any
director, officer or employee of the Company or
any of its affiliates,
(b) beneficially owns, directly or indirectly, or
exercises control or direction over a material
interest in the shares of or debt owing by the
Company or any of its affiliates, or
(c) has been a receiver, receiver and manager,
liquidator or trustee in bankruptcy of the
Company or any of its affiliates within two
years of the person's proposed appointment as
auditor of the Company.
(3) An auditor who becomes disqualified pursuant to this
Article shall resign forthwith upon becoming aware of his
disqualification.
174. The remuneration of the auditors shall be fixed by the
Company in general meeting, or by the Directors pursuant to
authorization given by the shareholders at the annual ordinary
general meeting except that the remuneration of an auditor
appointed to fill a casual vacancy may be fixed by the Directors.
175. (1) The auditors shall conduct such audit and make such
examination of the financial statements of the Company required
by the Act to be placed before the members in general meeting as
is necessary for the auditors to report thereon.
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(2) The auditors shall report on the financial statements
in the form recommended from time to time in the Handbook of the
Canadian Institute of Chartered Accountants.
176. (1) The members may, except where the auditor has been
appointed by order of the court pursuant to the Act, by
resolution passed by a majority of the votes cast at a special
meeting duly called for the purpose, remove an auditor before the
expiration of the auditor's term of office and shall, by a
majority of the votes cast at that meeting, appoint another
auditor in his stead for the remainder of the term.
(2) Before calling a special meeting for the purpose
specified in sub-article (1) or an annual general or special
meeting where the Directors are not recommending the re-
appointment of the incumbent auditor, the Company shall, fifteen
days or more before the mailing of the notice of the meeting,
give to the auditor:
(a) written notice of the intention to call the
meeting, specifying therein the date on which
the notice of the meeting is proposed to be
mailed; and
(b) a copy of all material proposed to be sent to
members in connection with the meeting.
(3) An auditor has the right to make to the Company, three
days or more before the mailing of the notice of the meeting,
representations in writing concerning:
(a) the auditor's proposed removal as auditor;
(b) the appointment or election of another person
to fill the office of auditor; or
(c) the auditor's resignation as auditor,
and the Company, at its expense, shall forward with the notice of
the meeting a copy of such representations to each member
entitled to receive notice of the meeting.
(4) The Company shall give notice in writing to an auditor
of the auditor's appointment forthwith after the appointment is
made.
(5) A resignation of an auditor becomes effective at the
time the written resignation is sent to the Company or at the
time specified in the resignation, whichever is later.
177. (1) Upon the demand of an auditor of the Company, the
present or former directors, officers, employees or agents of the
Company shall furnish such:
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(a) information and explanations; and
(b) access to records, documents, books, accounts
and vouchers of the Company or any of its
subsidiaries, as are, in the opinion of the
auditor, necessary to enable the auditor to
make the examination and report required under
the Act and that the directors, officers,
employees and agents are reasonable able to
furnish.
(2) Upon the demand of an auditor of the Company, the
Directors of the Company shall:
(a) obtain from the present or former directors,
officers, employees and agents of any
subsidiary of the Company the information and
explanations that the present of former
directors, officers, employees and agents are
reasonably able to furnish and that are, in the
opinion of the auditor, necessary to enable the
auditor to make the examination and report
required under the Act; and
(b) furnish the information and explanations so
obtained to the auditor.
(3) The auditor of the Company is entitled to receive
notice of every meeting of members and, at the expense of the
Company, to attend and be heard at the meeting on matters
relating to the auditor's duties as an auditor.
(4) If the Director or member of the Company, whether or
not the member is entitled to vote at the meeting, gives written
notice not less than five days before the meeting of the Company
to the auditor or former auditor of the Company, the auditor or
former auditor shall attend the meeting at the expense of the
Company and answer questions relating to the auditor or former
auditor's duties as auditor.
(5) A Director or member who sends a notice referred to in
sub-article (4) shall send concurrently a copy of the notice to
the Company.
178. The auditor's report shall be placed before each annual
general meeting of the Company and shall be read thereat and be
open for inspection by the members present.
179. (1) A Director or officer of the Company shall forthwith
notify all Directors and the auditor or former auditor of any
error or mis-statement of which the Director of officer becomes
aware in a financial statement that the auditor or former auditor
has reported upon if the error or mis-statement in all the
circumstances appears to be significant.
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<PAGE>
(2) Where the auditor or former auditor of the Company is
notified or becomes aware of an error or mis-statement in a
financial statement upon which the auditor or former auditor has
reported, and if in the auditor or former auditor's opinion the
error or mis-statement is material he shall inform each Director
accordingly.
(3) Where, pursuant to sub-article (2), the auditor or
former auditor informs the Directors of an error or mis-statement
in a financial statement, the Directors shall, within a
reasonable time,
(a) prepare and issue revised financial statements;
or
(b) otherwise inform the members and any debenture
holder of the Company who has demanded or been
furnished with the financial statements which
contain the error or mis-statement.
180. (1) If all the members of the Company consent thereto, the
provisions of these Articles and sections 117 and 119B of the Act
regarding the appointment of auditors and duties of auditors do
not apply with respect to the financial year in respect of which
the consent is given.
(2) Sub-article (1) shall not apply if the Company is a
reporting issuer or a reporting Company.
181. If one auditor only is appointed, all the provisions
herein contained relating to auditors shall apply to him.
NOTICES
182. A notice may be served by the Company upon members
personally or by sending it through the post in a prepaid
envelope or wrapper addressed to such member at his registered
place of address.
183. Members who have no registered place of address shall
not be entitled to receive any notice.
184. Any notice required to be given by the Company to the
members, or any of them, and not expressly provided for by these
Articles, shall be sufficiently given if given by advertisement.
185. Any notice given by advertisement shall be advertised
twice in a paper published in the place where the head office of
the Company is situated, or if no paper is published there, then
in any newspapers published in the City of Halifax, Nova Scotia.
186. All notices shall, with respect to any registered
shares to which persons are jointly entitled, be given to
39
whichever of such persons is named first in the register for such
shares, and notice so given shall be sufficient notice to all the
holders of such shares.
187. Any notice sent by post shall be deemed to be served on
the day following that upon which the letter, envelope or wrapper
containing it is posted, and in proving such service it shall be
sufficient to prove that the letter, envelope or wrapper
containing the notice was properly addressed and put into the
post office with the postage prepaid thereon. A certificate in
writing signed by any manager, secretary or other official of the
Company that the letter, envelope or wrapper containing the
notice was so addressed and posted shall be conclusive evidence
thereof. The foregoing provisions of this clause shall not apply
to a notice of a meeting of the Directors.
188. Every person who by operation of law, transfer or other
means whatsoever becomes entitled to any share shall be bound by
every notice in respect of such share that prior to his name and
address being entered on the register was duly served in the
manner hereinbefore provided upon the person from whom he derived
his title to such share.
189. Any notice or document so advertised or sent by post to
or left at the registered address of any member in pursuance of
the Articles shall, notwithstanding that such member is then
deceased and that the Company has notice of his decease, be
deemed to have been served in respect of any registered shares,
whether held by such deceased member solely or jointly with other
persons, until some other person is registered in his stead as
the holder or joint holder thereof, and such service shall for
all purposes of these Articles be deemed a sufficient service of
such notice or document on his heirs, executors, or
administrators and all persons, if any, jointly interested with
him in any such share.
190. The signature to any notice given by the Company may be
written or printed.
191. When a given number of days notice or notice extending
over any other period is required to be given, the day of service
and the day upon which such notice expires shall not, unless it
is otherwise provided, be counted in such number of days or other
period.
INDEMNITY
192. Any member at the request of the Board of Directors,
any Director or any officer of the Company shall be indemnified
by the Company against, and it shall be the duty of the Directors
out of the funds of the Company to pay all costs, losses and
expenses that any such member, Director or Officer may incur or
become liable to pay by reason of any contract entered into, or
40
<PAGE>
act or thing done by him as such member, Director or Officer or
in any way in the proper discharge of his duties including
travelling expenses; and the amount for which such indemnity is
proved shall be a claim against the Company and have priority as
against the other members over all other claims.
193. No Director or other Officer of the Company shall, in
the absence of any dishonesty on his part, be liable for the
acts, receipts, neglects or defaults of any other Director or
Officer, or for joining in any receipt or other act for
conformity, or for any loss or expense happening to the Company
through the insufficiency or deficiency of title to any property
acquired by order of the Directors for or on behalf of the
Company, or through the insufficiency or deficiency of any
security in or upon which any of the moneys of the Company are
invested, or for any loss or damage arising from the bankruptcy,
insolvency or tortious act of any person with whom any moneys,
securities or effects are deposited, or for any loss, damage or
misfortune whatsoever which happens in the execution of the
duties of his office or in relation thereto.
SHAREHOLDER AGREEMENTS
194. Any written agreement or agreements which may be
entered into by the Company and signed by all its shareholders
respecting any matters dealt with under these Articles or
otherwise, shall, to the extent any provisions of the agreements
are inconsistent with these Articles, supersede the terms of
these Articles and be deemed to be amendments thereto and be
binding upon the Company, the shareholders and future
shareholders.
REMINDERS
195. The Directors shall comply with the following
provisions of the Act:
(1) Keep a register of members. (Sect. 42)
(2) Keep a register of the holders of debentures.
(Sect. 111)
(3) Send notice to the Registrar of any consolidation,
division, conversion or reconversion of the share
capital or stock of the Company. (Sect. 53)
(4) Send notice to the Registrar of any increase of
capital. (Sect. 55)
(5) Call a general meeting every year within the proper
time. (Sect. 83) Meetings must be held not later than
fifteen months after the preceding general meeting.
41
(6) Send to the Registrar typed or printed copies of all
special resolutions. (Sect. 88)
(7) Keep a register of Directors, Officers and Managers,
which shall include the addresses and occupations of
the parties listed. Send to the Registrar a copy
thereof and notify him of all changes therein. (Sect.
98)
(8) When shares are issued for a consideration other than
cash, file a copy of the contract with the Registrar on
or before the date on which the shares are issued.
(Sect. 109)
(9) Send to the Registrar notice of the address of the
Company's registered office and of all changes in such
address. (Sect. 79)
(10) Keep proper minutes of all general meetings and
Directors meetings in books reserved for the purpose
and kept at the Company's registered office.
(Sects. 89 and 90)
(11) Obtain a certificate under the Corporations
Registration Act as soon as business is commenced.
(12) Send notice of recognized agent to the Registrar in
compliance with provisions of the Corporations
Registration Act.
(13) See that the register of shareholders is always kept up
to date.
(14) See that the register of Directors is always kept up to
date.
(15) Send notice to the Registrar of any redemption or
purchase of preference shares. (Sect. 51)
42
NAMES, ADDRESSES AND DESCRIPTIONS OF SUBSCRIBERS
DATED at Hafifax, Nova Scotia, the 3rd day of March, 1994.
WITNESS to the above signatures:
Exhibit B-87
THE COMPANIES LAW
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
EI CAYMAN
PRELIMINARY
1. The regulations contained in Table A in the Schedule to The
Companies Law, Cap. 22 shall not apply to the Company.
INTERPRETATION
2. In these regulations:
"The Law" means the Companies Law of the Cayman Islands for the
time being in force together with any statutory amendment,
modification or re-enactment thereof.
"The Seal" means the common seal of the Company.
"Secretary" includes an Assistant Secretary and any person
appointed to perform the duties of the secretary of the Company.
"The Holder" means, in relation to registered shares, the member
whose name is entered in the register of members as the holder of
the shares and in relation to shares issued in bearer form, the
holder for the time being of the certificate representing the
same.
Expressions referring to writing shall unless the contrary
intention appears, be construed as including references to
printing, lithography, photography, and other modes of
representing or reproducing words in a visible form.
Unless the context otherwise requires, words or expressions
contained in these regulations shall bear the same meaning as in
the Law or any statutory modifications thereof in force at the
date at which these regulations become binding on the Company.
SHARES
3. (a) Subject to the provisions of the Articles relating to
new shares the shares of the Company shall be at the disposal of
the Directors and they may allot or otherwise dispose of them to
such persons (including any Director of the Company) on such
terms and conditions, and at such time as the Directors may
determine.
3. (b) Subject to the provisions, if any, in that behalf of the
memorandum of association, and without prejudice to any special<PAGE>
rights previously conferred on the holders of existing shares,
any share may be issued with such preferred, deferred, or other
special rights, or such restrictions, whether in regard to
dividend, voting, return of share capital or otherwise, as the
Company may from time to time by special resolution determine,
and any preference share may, with the sanction of a special
resolution, be issued on the terms that it is, or at the option
of the Company or the Holder thereof is liable, to be redeemed.
4. The directors may issue fractions of a share of any class of
shares, and, if so issued a fraction of a share shall be subject
to and carry the corresponding fraction of liabilities (whether
with respect to nominal or par value, premium, contribution,
calls or otherwise), limitation, preferences, privileges,
qualifications, restrictions, rights (including without prejudice
to the foregoing generality, voting and participation rights and
other attributes of a whole share of the same class of shares.
If more than one fraction of a share of the same class is issued
to or acquired by the same shareholder such fractions shall be
accumulated. For the avoidance of doubt it is hereby declared
that in these Articles the expression "share" shall include a
fraction of a share.
5. If at any time the share capital in divided into different
classes of shares, the rights attached to any class (unless
otherwise provided by the terms of issue of the shares of that
class) may be varied with the consent in writing of the holders
of three-fourths of the issued shares of that class, or with the
sanction of a special resolution passed at a separate general
meeting of the holders of the shares of the class. To every such
separate general meeting the provisions of these regulations
relating to general meetings shall mutatis mutandis apply, but so
that the necessary quorum shall be two persons holding or
representing by proxy at least a majority of the issued shares of
the class and that any holder of shares of the class present in
person or by proxy may demand a poll.
6. Every person whose name is entered as a member in the
register of members shall, without payment, be entitled to a
certificate under seal of the Company specifying the share or
shares held by him and the amount paid up thereon, provided that
in respect of a share or shares held Jointly by several persons
the Company shall not be bound to issue more than one
certificate, and the delivery of a certificate for a share to one
of several joint holders shall be sufficient delivery to all.
7. If a share certificate is defaced, lost or destroyed, it may
be renewed on payment of such fee, if any, not exceeding CI$0.50
and on such terms, if any, as to evidence and indemnity, as the
directors think fit.
F:\U5S\CAYM.BY 2<PAGE>
REDEMPTION AND PURCHASE OF OWN SHARES
8.(a) Subject to the provisions of the law, the Company may
(i) issue shares which are to be redeemed or are liable to be
redeemed at the option of the Company or Holder;
(ii) purchase its own shares (including any redeemable shares);
and
(iii) make a payment in respect of the redemption or purchase
of its own shares otherwise than out of profits or the proceeds
of a fresh issue of its shares.
(b) A share which is liable to be redeemed may be redeemed by
the Holder or the Company giving to the other not less than
Thirty days notice in writing of the intention to redeem such
shares specifying the date of such redemption which must be a day
which banks in the Cayman Islands are open for business.
(c) The amount payable on such redemption on each share so
redeemed shall be the amount determined by the Directors as being
the fair value thereof as between a willing buyer and a willing
seller.
(d) Any share in respect of which notice of redemption has been
given shall not be entitled to participate in the profits of the
Company in respect of the period after the date specified as the
date of redemption in the notice of redemption.
(e) Where the Company has agreed to purchase any share from a
member, it shall give notice to all other members of the Company
specifying the number and class of shares proposed to be
purchased, the name and address of the seller, the price to be
paid therefore and the portion (if any) of that price which is
being paid out of capital. Such notice shall also specify a date
(being not less than Thirty days after the date of the notice) on
which the purchase is to be effected and shall invite members
(other than the seller) to intimate any objections to the
proposed purchase by the Company before that date. If no
objections have been received before the date specified in the
notice the Company shall be entitled to proceed with the purchase
upon the terms specified therein. If any objection is received
prior to the specified date, the Directors may either decline to
proceed with the purchase or convene a general meeting of the
Company to consider and, if thought fit, approve the terms of the
proposed purchase.
(f) The redemption or purchase of any share shall not be deemed
to give rise to the redemption or purchase of any other share.
3<PAGE>
(g) At the date specified in the notice of redemption or
purchase, the holder of the shares being redeemed or purchased
shall be bound to deliver up to the Company at its registered
office the certificate thereof for cancellation and thereupon the
Company shall pay to him the redemption or purchase monies in
respect thereof.
(h) The Directors may when making payments in respect of
redemption or purchase of shares in accordance with the
provisions of this Regulation, if authorized by the terms of
issue of the shares being redeemed or purchased or with the
agreement of the holder of such shares, make such payment either
in cash or in specie.
LIEN
9. The Company shall have a lien on every share for all moneys
(whether presently payable or not) called or payable at a fixed
time in respect of that share, and the Company shall also have a
lien on all shares standing registered in the name of a single
person for all moneys presently payable by him or his estate to
the Company; but the directors may at any time declare any share
to be wholly or in part exempt from the provisions of this
regulation. The Company's lien, if any, on a share shall extend
to all dividends payable thereon.
10. The Company may sell, in such manner as the directors think
fit, any shares on which the Company has a lien, but no sale
shall be made unless some sum in respect of which the lien exists
is presently payable nor until the expiration of fourteen days
after a notice in writing, stating and demanding payment of such
part of the amount in respect of which the lien exists as is
presently payable has been given to the registered holder for the
time being of the share, or the persons entitled thereto by
reason of his death or bankruptcy.
11. For giving effect to any such sale the directors may
authorize some person to transfer the shares sold to the
purchaser thereof. The purchaser shall be registered as the
holder of the shares comprised in any such transfer and he shall
not be bound to see to the application of the purchase money, nor
shall his title to the shares be affected by any irregularity or
invalidity in the proceedings in reference to the sale.
12. The proceeds of the sale shall be received by the Company
and applied in payment of such part of the amount in respect of
which the lien exists as is presently payable, and the residue
shall (subject to a like lien for sums not presently payable as
existed upon the shares prior to the sale) be paid to the person
entitled to the shares at the date of the sale.
4<PAGE>
CALLS ON SHARES
13. The directors may from time, to time make calls upon the
members in respect of any moneys unpaid on their shares and each
member shall (subject to receiving at least fourteen days' notice
specifying the time or times of payment) pay to the Company at
the time or times so specified the amount called on his shares.
14. The joint holders of a share shall be jointly and severally
liable to pay calls in respect thereof.
15. If a sum called in respect of a share is not paid before or
on the day appointed for payment thereof, the person from whom
the sum is due shall pay interest upon the sum at the rate of six
per centum per annum from the day appointed for the payment
thereof to the time of the actual payment, but the directors
shall be at liberty to waive payment of that interest wholly or
in part.
16. The provisions of these regulations as to the liability of
joint holders and as to payment of interest shall apply in the
case of non payment of any sum which, by the terms of issue of a
share become payable at a fixed time, whether on account of the
share, or by way of premium, as if the same had become payable by
virtue of a call duly made and notified.
17. The directors may make arrangements on the issue of shares
for a difference between the holders in the amount of calls to be
paid and in the times of payment.
18. The directors may, if they think fit, receive from any
member willing to advance the same all or any part of the moneys
uncalled and unpaid upon any shares held by him; and upon all or
any of the moneys so advanced may (until the same would, but for
such advance, become presently payable) pay interest at such rate
(not exceeding without the sanction of the Company in general
meeting six per cent) as may be agreed upon between the member
paying the sum in advance and the directors.
BEARER SHARES
19. Without prejudice to regulation 3(b) hereof, the Company may
issue shares to bearer provided that any shares so issued shall
be fully paid and the Company shall issue a certificate
specifying the share or shares issued to bearer.
TRANSFER AND TRANSMISSION OF SHARES
20. The instrument of transfer of any share shall be executed by
or on behalf of the transferor and if so required by the Board of
Directors shall also be executed by or on behalf of the
5<PAGE>
transferee, and the transferor shall be deemed to remain a holder
of share until the name of the transferee is entered in the
Register of Members in respect thereof. Notwithstanding the
foregoing, however, shares issued to Bearer shall be transferred
by delivery of the certificate by the transferor to the
transferee and the transferee shall immediately without further
action become a member of the company.
21. The provisions of this Article 21 and the following Articles
22 and 25 shall apply to all shares except those shares issued to
bearer; shares shall be transferred in the following form, or in
any usual or common form approved by the directors.
I, of
in consideration of the sum of $ paid to me by
of (hereinafter called "the said
transferee") do hereby transfer to the said transferee the share
(or shares) numbered in the undertaking called the
to hold unto the said transferee,
subject to the several conditions on which I hold the same: and
I, the said transferee, do hereby agree to take
the said share (or shares) subject to the conditions aforesaid.
As witnessed our hands the day of
19 Witness to the signature of, etc. .
22. The Directors may decline to register any transfer of
shares, not being fully paid shares, to a person of whom they do
not approve, and may also decline to register any transfer of
shares on which the Company has a lien. The directors may
suspend the registration of transfers during the fourteen days
immediately proceeding a general meeting. The Directors may
decline to recognize any instrument of transfer unless it is
accompanied by:
(a) a fee not exceeding $1.00 paid to the Company in respect
thereof, and
(b) the certificate of the shares to which it relates and such
other evidence as the Directors may reasonably require to show
the right of the transferor to make the transfer.
If the Directors refuse to register a transfer of any shares,
they shall within two months after the date on which the transfer
was lodged with the Company send to the transferee notice of the
refusal.
23. The legal personal representative of a deceased sole holder
of a share shall be the only person recognised by the company as
having any title to the share. In the case of a share registered
in the names of two or more holders, the survivors or survivor,
or the legal personal representatives of the deceased survivor,
6<PAGE>
shall be the only persons recognised by the Company as having any
title to the share.
24. Any person becoming entitled to a share in consequence of
the death or bankruptcy of a member shall upon such evidence
being produced as may from time to time be properly required by
the Directors, have the right either to be registered as a member
in respect of the share or, instead of being registered himself,
to make such transfer of the share as the deceased or bankrupt
person could have made; but the Directors shall, in either case,
have the same right to decline or suspend registration as they
would have had in the case of a transfer of the share by the
deceased or bankrupt person before the death or bankruptcy.
25. A person becoming entitled to a share by reason of the death
or bankruptcy of the holder shall be entitled to the same
dividends and other advantages to which he would be entitled if
he were the registered holder of the share, except that he shall
not, before being registered as a member in respect of the share,
be entitled in respect of it to exercise any right conferred by
membership in relation to meetings of the Company.
NON-RECOGNITION OF TRUSTS
26. No person shall be recognised by the Company as holding any
shares upon any trust and the Company shall not be bound by or be
compelled in any way to recognise (even when having notice
thereof) any equitable, contingent, future or partial interest in
any of its shares or any other rights in respect thereof except
an absolute right to the entirety thereof in each shareholder
registered in the Company's Register of Members (or in the holder
the bearer certificate representing the shares in question, as
the case may be).
FORFEITURE OF SHARES
27. If a member fails to pay any call or installment of a call
on the day appointed for payment thereof, the directors may, at
any time thereafter during such time as any part of such call or
installment remains unpaid, serve a notice on him requiring
payment of so much of the call or installment as is unpaid,
together with any interest which may have accrued.
28. The notice shall name a further day (not earlier than the
expiration of fourteen days from the date of the notice) on or
before which the payment required by the notice is to be made,
and shall state that in the event of non-payment at or before the
time appointed the shares in respect of which the call was made
will be liable to be forfeited.
29. If the requirements of any such notice as aforesaid are not
complied with, any share in respect of which the notice has been
7<PAGE>
given may at any time thereafter, before the payment required by
the notice has been made, be forfeited by a resolution of the
Directors to that effect.
30. A forfeited share may be sold or otherwise disposed of on
such terms and in such manner as the Directors think fit, and at
any time before a sale or disposition the forfeiture may be
cancelled on such terms as the Directors think fit.
31. A person whose shares have been forfeited shall cease to be
a member in respect of the forfeited shares, but shall,
notwithstanding, remain liable to pay to the Company all moneys
which at the date of forfeiture were payable by him to the
Company in respect of the shares, but his liability shall cease
if and when the Company receives payment in full of the nominal
amount of the shares.
32. A statutory declaration in writing that the declarant is a
Director of the Company, and that a share in the Company has been
duly forfeited on the date stated in the declaration, shall be
conclusive evidence of the facts therein stated as against all
persons claiming to be entitled to the share. The Company may
receive the consideration, if any, given for the share on any
sale or disposition thereof and may execute a transfer of the
share in favor of the person to whom the share is sold or
disposed of and he shall thereupon be registered as the holder of
the share, and shall not be bound to see to the application of
the purchase money, if any, nor shall his title to the share be
affected by any irregularity or invalidity in the proceedings in
reference to the forfeiture, sale or disposal of the share.
33. The provisions of these regulations as to forfeiture shall
apply in the case of non-payment of any sum which by the terms of
the issue of a share becomes payable at a fixed time, whether on
account of the amount of the share, or by way of a premium, as if
the same had been payable by virtue of a call duly made and
notified.
CONVERSION OF SHARES INTO STOCK
34. The Company may by ordinary resolution convert any paid-up
shares into stock, and reconvert any stock into paid-up shares
of any denomination.
35. The holders to stock may transfer the same, or any part
thereof in the same manner and subject to the same regulations as
and subject to which the shares from which the stock arose might
prior to conversion have been transferred, or as near thereto as
circumstances admit; but the directors may from time to time fix
the minimum amount of stock transferable, and restrict or forbid
8<PAGE>
the transfer of fractions of that minimum, but the minimum shall
not exceed the nominal amount of the shares from which the stock
arose.
36. The holders of stock shall, according to the amount of the
stock held by them, have the same rights, privileges and
advantages as regards dividends, voting at meetings of the
Company and other matters as if they held the shares from which
the stock arose, but no such privilege or advantage (except
participation in the dividends and profits of the Company) shall
be conferred by an amount of stock which would not, if existing
in shares, have conferred that privilege or advantage.
37. Such of the regulations of the Company as are applicable to
paid-up shares shall apply to stock, and the words "share" and
"shareholder" therein shall include "stock" and "stock-holder".
ALTERATION OF CAPITAL
38. The Company may from time to time by ordinary resolution
increase the share capital by such sum, to be divided into shares
of such amount, as the resolution shall prescribe.
39. Subject to any direction to the contrary that may be given
by the Company in general meeting, all new shares shall, before
issue, be offered to such persons as at the date of the offer are
entitled to receive notices from the Company of general meetings
in proportion as nearly as the circumstances admit, to the amount
of the existing shares to which they are entitled. The offer
shall be made by notice specifying the number of shares offered,
and limiting a time within which the offer, if not accepted, will
be deemed to be declined, and after the expiration of that time,
or on the receipt of an intimation from the person to whom the
offer is made that he declines to accept the shares offered, the
directors may dispose of the shares in such manner as they think
most beneficial to the Company. The Directors may likewise so
dispose of any new shares which (by reason of the ratio which the
new shares bear to shares held by persons entitled to an offer of
new shares) cannot, in the opinion of the directors, be
conveniently offered under this article.
40. The new shares shall be subject to the same provisions in
reference to the payment of calls, liens, transfer, transmission,
forfeiture and otherwise as the shares in the original share
capital.
41. The Company may by ordinary resolution:
(a) consolidate and divide all or any of its share capital into
shares of larger amount than its existing shares;
9<PAGE>
(b) sub-divide its existing shares, or any of them into shares
of smaller amount than is fixed by the memorandum of association,
subject nevertheless to the provisions of section 12 of the Law;
(c) cancel any shares which, at the date of the passing of the
resolution, have not been taken or agreed to be taken by any
person.
42. The Company may by special resolution reduce its share
capital and any capital redemption reserve fund in any manner and
with and subject to, any incident authorized and consent required
by Law.
GENERAL MEETINGS
43. The Directors may, whenever they think fit, convene a
general meeting of the Company. If at any time there are not
sufficient directors capable of acting together to form a quorum,
any Director or any two members of the Company may convene a
general meeting in the same manner as nearly as possible as that
in which meetings may be convened by the Directors.
NOTICE OF GENERAL MEETINGS
44. Subject to the provisions of section 57 of the Law relating
to special resolutions, seven days' notice at the least
(Exclusive of the day on which the notice is served or deemed
to be served, but inclusive of the day for which notice is given)
specifying the place, the day and the hour of meeting and, in
case of special business, the general nature of that business
shall be given in manner hereinafter provided or in such other
manner (if any) as may be prescribed by the Company in general
meetings, to such persons as are, under the regulations of the
Company, entitled to receive such notices from the Company; but
with the consent of all the members entitled to receive notice of
some particular meeting, that meeting may be convened by such
shorter notice or without notice and in such manner as those
members may think fit.
45. The accidental omission to give notice of a meeting to, or
the non-receipt of a notice of a meeting by any member shall not
invalidate the proceedings at any meeting.
PROCEEDINGS AT GENERAL MEETINGS
46. All business shall be deemed special that is transacted at a
general meeting, with the exception of sanctioning a dividend,
the consideration of the accounts, balance sheets, and the
ordinary report of the directors and auditors, the election of
directors and other officers in the place of those retiring by
rotation, and the fixing of the remuneration of the auditors.
10<PAGE>
47. No business shall be transacted at any general meeting
unless a quorum of members is present at the time that the
meeting proceeds to do business; save as herein otherwise
provided, two members or one member holding in number at least a
majority of issued shares present in person or by proxy shall be
a quorum.
48. On presentation of his certificate to the Chairman of some
particular general meeting for inspection, a holder of a share or
shares in the Company issued to bearer may attend that general
meeting and vote thereat.
49. If within half an hour from the time appointed for the
meeting, a quorum is not present, the meeting, if convened upon
the requisition of members, shall be dissolved; in any other case
it shall stand adjourned to the same day in the next week.
50. The Chairman, if any, of the board of directors shall
preside as chairman at every general meeting of the Company.
51. If there is no such chairman, or if at any meeting he is not
present within fifteen minutes after the time appointed for
holding the meeting or is unwilling to act as chairman, the
members present shall choose one of their number to be chairman.
52. The Chairman may with the consent of any meeting at which a
quorum is present (and shall if so directed by the meeting)
adjourn the meeting from time to time and from place to place,
but no business shall be transacted at any adjourned meeting
other than the business left unfinished at the meeting from which
the adjournment took place. When a meeting is adjourned for ten
days or more, notice of the adjourned meeting shall be given as
in the case of an original meeting. Save as aforesaid it shall
not be necessary to give any notice of an adjourned meeting.
53. At any general meeting a resolution put to the vote to the
meeting shall be decided on a show of hands, unless a poll is
(before or on the declaration of the result to the show of hands)
demanded by at least three members present in person or by proxy
entitled to vote or by one member or two members so present and
entitled, if that member or those two members together hold not
less than fifteen per cent of the paid up capital of the Company,
and, unless a poll is so demanded, a declaration by the chairman
that a resolution has, on a show of hands, been carried, or
carried unanimously, or by a particular majority, or lost, and an
entry to that effect in the book of the proceedings of the
Company, shall be conclusive evidence of the fact, without proof
of the number or proportion of the votes recorded in favor of, or
against, that resolution.
11<PAGE>
54. If a poll is duly demanded it shall be taken in such manner
as the chairman directs, and the result of the poll shall be
deemed to be the resolution of the meeting at which the poll was
demanded.
55. In the case of an equality of votes, whether on a show of
hands or on a poll, the chairman of the meeting at which the show
of hands takes place or at which the poll is demanded, shall be
entitled to a second or casting vote.
56. A poll demanded on the election of a chairman or on a
question of adjournment shall be taken forthwith. A poll
demanded on any other question shall be taken at such time as the
chairman of the meeting directs.
VOTES OF MEMBERS
57. On a show of hands every member present in person shall have
one vote. On a poll every member shall have one vote for each
share of which he is the holder.
58. In the case of joint holders the vote of the senior who
tenders a vote whether in person or by proxy, shall be accepted
to the exclusion of the votes of the other joint holders; and for
this purpose seniority shall be determined by the order in which
the names stand in the register of members.
59. A member of unsound mind, or in respect of whom an order has
been made by any court having jurisdiction in lunacy, may vote,
whether on a show of hands or on a poll, by his committee, or
other person in the nature of a committee appointed by the court,
and any such committee or other person, may on a poll, vote by
proxy.
60. No member shall be entitled to vote at any general meeting
unless all calls or other sums presently payable by him in
respect of shares to the Company have been paid.
61. On a poll votes may be given either personally or by proxy.
62. The instrument appointing a proxy shall be in writing under
the hand of the appointor or of his attorney duly authorized in
writing or, if the appointor is a corporation, either under seal
or under the hand of an officer or attorney duly authorized. A
proxy need not be a member of the Company.
63. An instrument appointing a proxy may be in the following
form or any other form approved by the directors:
12<PAGE>
..............................................Company Limited
"I, , of being a
member of the Company Limited hereby
appoint of
as my proxy, to vote for me and on my behalf at the (ordinary or
extraordinary as the case may be) general meeting of the Company
to be held on the day of 19
and at any adjournment thereof.
Signed this day of 19
64. The instrument appointing a proxy shall be deemed to confer
authority to demand or join in demanding a poll.
65. A resolution in writing signed by all the members for the
time being entitled to receive notice of and to attend and vote
at general meetings (or being corporations by their duly
authorized representatives) shall be as valid and effective as if
the same had been passed at a general meeting of the Company duly
convened and held.
CORPORATION ACTING BY REPRESENTATIVES AT MEETINGS
66. Any corporation which is a member of the Company may by
resolution of its Directors or other governing body authorize
such person as it thinks fit to act as its representative at any
meeting of the Company or any class of members of the Company,
and the person so authorized shall be entitled to exercise the
same powers on behalf of the corporation which he represents as
that corporation could exercise if it were an individual member
of the Company.
DIRECTORS
67. The number of the Directors and the names of the first
Directors shall be determined in writing by a majority of the
subscribers of the Memorandum of Association.
68. Subject to the provisions of Regulation 78 hereof, a
Director shall hold office until such time as he is removed from
office, by an ordinary resolution of the Company in General
Meeting.
69. The remuneration of the Directors shall from time to time be
determined by the Company in General Meeting.
70. A Director shall not require any share qualification but
shall nevertheless be entitled to attend and speak at any General
13<PAGE>
Meeting of the Company or at any separate meeting of the holders
of any class of shares of the Company.
POWERS AND DUTIES OF DIRECTORS
71. The business of the Company shall be managed by the
Directors, who may pay all expenses incurred in setting up and
registering the Company and may exercise all such powers of the
to company as are not, by the law or these articles, required to
be exercised by the Company in general meeting, subject,
nevertheless to any regulations of these articles to the
provisions of the law, and to such regulation, being not
inconsistent with the aforesaid regulations or provisions as may
be prescribed by the Company in general meeting; but no
regulation made by the Company in General Meeting shall
invalidate any prior act of the Directors which would have been
valid if that regulation had not been made.
72. The Directors may from time to time appoint any person,
whether or not a Director of the Company, to hold such office in
the Company as the Directors may think necessary for the
administration of the Company, including, without prejudice to
the foregoing generality, the office of President, one or more
Vice-President, Treasurer, Assistant Treasurer, Secretary,
Assistant Secretary, Manager or Controller, and for such term and
at such remuneration (whether by way of salary or commission or
participation in profits, or partly in one way and partly in
another), and with such powers and duties as the Directors may
think fit. Any person so appointed by the Directors may be
removed by the Directors or by the Company in general meeting.
The Directors may also appoint one or more of their number to the
office of Managing Director upon like terms, but any such
appointment shall ipso facto determine if any Managing Director
ceases from any cause to be a Director, or if the Company in
General Meeting or the Directors resolve that his tenure of
office be terminated.
73. The Directors may exercise all the powers of the Company to
borrow money and to mortgage or charge its undertaking, property
and uncalled capital or any part thereof, to issue debentures,
debenture stock and other securities whenever money is borrowed
or as security for any debt, liability or obligation of the
Company or of any third party.
74. The Directors shall cause minutes to be made in books
provided for the purpose of recording:
(a) all appointments of Officers made by the Directors;
14<PAGE>
(b) the names of the Directors present at each meeting of the
Directors and of any committee of the Directors;
(c) all resolutions and proceedings at all meetings of the
Company, and of the Directors and of committees of Directors.
THE SEAL
75. The seal of the Company shall not be affixed to any
instrument except by the authority of a resolution of the Board
of Directors, provided always that such authority may be given
prior to or after the affixing of the seal and if given after may
be in general form confirming a number of affixings of the seal.
The seal shall be affixed in the presence of a Director or the
Secretary (or an Assistant Secretary) of the Company or in the
presence of any one or more persons as the Directors may appoint
for the purpose and every person as aforesaid shall sign every
instrument to which the seal of the Company is so affixed in
their presence.
76. The Company may maintain a facsimile of its seal in such
countries or places as the Directors shall appoint and such
facsimile seal shall not be affixed to any instrument except by
the authority of the Board of Directors and in the presence of
such person or persons as the Directors shall for this purpose
appoint and such person or persons as aforesaid shall sign every
instrument to which the facsimile seal of the Company is so
affixed in their presence and such affixing of the facsimile seal
and signing as aforesaid shall have the same meaning and effect
as if the Company seal had been affixed in the presence of and
the instrument signed by a Director or the Secretary or such
other person as the Directors may appoint for the purpose.
77. Notwithstanding the foregoing, the Secretary shall have
authority to affix the seal, or the facsimile seal, to any
instrument, list or return for the purposes of attesting such
authority of the matter contained therin but which does not
create any obligation binding on the Company.
DISQUALIFICATION OF DIRECTORS
78. The office of director shall be vacated, if the director:
(a) becomes bankrupt; or
(b) is found to be or becomes of unsound mind; or
(c) resigns his office by notice in writing to the Company.
APPOINTMENT OF DIRECTORS
79. The Company in general meeting may from time to time fix the
maximum and minimum number of directors to be appointed but
15<PAGE>
unless such number is fixed as aforesaid the minimum number of
directors shall be one and the maximum number of directors shall
be unlimited.
80. At any time and from time to time the Company may (without
prejudice to the powers of the directors under regulations 81 and
82) by ordinary resolution appoint any person a director (but so
that the maximum number of directors is not exceeded) and
determine the period for which such person is to hold office.
81. Any casual vacancy occurring in the board of directors may
be filled by the directors.
82. The directors shall have power at any time, and from time to
time, to appoint a person as an additional director.
83. The company may by ordinary resolution remove an additional
director before the expiration of his period of office, and may
by an ordinary resolution appoint another person in his stead.
PROCEEDINGS OF DIRECTORS
84. The directors may meet together (either within or without
the Cayman Islands) for the despatch of business, adjourn, and
otherwise regulate their meetings and proceedings, as they think
fit. Questions arising at the meeting shall be decided by a
majority of votes. In case of an equality of votes the chairman
shall have a second or casting vote.
85. A director may, and the Secretary on the requisition of a
director shall, at any time summon a meeting of the directors by
at least three days notice in writing to every director at the
address supplied to the Company for this purpose which notice
shall set forth the general nature of the business to be
considered unless notice is waived by all the directors (or their
alternates) either at, before or after the mailing is held and
provided that if notice is given in person, by cable, telex or
telecopy the same shall be deemed to have been given on the day
it is delivered to the directors or transmitting originator as
the case may be. The accidental omission to give notice of a
meeting to, or the non receipt of a notice of a meeting by any
director shall not invalidate the proceedings at such meeting.
86. A quorum necessary for the transaction of the business of
directors may be fixed by the directors, and unless so fixed
shall be one.
87. When the Chairman of a meeting of the directors signs the
minutes of such meeting the same shall be deemed to have been
duly held notwithstanding that all the directors have not
16<PAGE>
actually come together or that there may have been a technical
defect in the proceedings.
88. A resolution signed by all the directors shall be valid and
effectual as if it had been passed at a meeting of the directors
duly called and constituted. When signed a resolution may
consist of several documents each signed by one or more of the
directors.
89. The directors or any committee of directors may participate
in any meeting of the Board or such committee by means of
telephone or similar communication equipment by way of which all
persons participating in such meeting can hear each other and
such participation shall be deemed to constitute presence in
person at that meeting.
90. The continuing directors may act notwithstanding any vacancy
in their body, but, if and so long as their number is reduced
below the number fixed by or pursuant to the regulations of the
company as the necessary quorum of directors, the continuing
directors may act for the purpose of increasing the number of
directors to that number, or of summoning a general meeting of
the Company, but for no other purpose.
91. The directors may elect a chairman of their meetings and
determine the period for which he is to hold office; but if no
such chairman is elected, or if at any meeting the chairman is
not present within five minutes after the time appointed for
holding the same, the directors present may choose one of their
number to be chairman of the meeting.
92. The directors may delegate all of their powers to Committees
consisting of such member or members of the body as they think
fit; any committee so formed shall in the exercise of the powers
so delegated conform to any regulations that may be imposed on it
by the directors.
93. A committee may elect a chairman of its meetings; if no such
chairman is elected, or if at any meeting the chairman is not
present within five minutes, after the time appointed for holding
the same, the members present may choose one of their numbers to
be chairman of the meeting.
94. A committee may meet and adjourn as it thinks proper.
Questions arising at any meeting shall be determined by a
majority of votes of the members present and in case of an
equality of votes the chairman shall have a second or casting
vote.
95. All acts done by any meeting of the directors or of a
committee of directors, or by any person acting as a director,
17<PAGE>
shall notwithstanding that it be afterwards discovered that there
was some defect in the appointment of any such director or person
acting as aforesaid, or that they or any of them were
disqualified be as valid as if every such person has been duly
appointed and was qualified to be a director.
96. A director may vote in respect of any contract or proposed
contract or arrangement notwithstanding that he may be interested
therein and if he does so his vote shall be counted and he may be
counted in the quorum at any meeting of the Directors at which
any such contract or proposed contract or arrangement shall come
before the meeting for consideration.
97. A director may hold any other office or place of profit
under the Company (other than the office of Auditor) in
conjunction with his office or Director for such period and on
such terms (as to remuneration and otherwise) as the Directors
may determine and no Director or intending Director shall be
disqualified by his office from contracting with the Company
either with regard to his tenure of any such other office or
place of profit or as vendor, purchaser or otherwise, nor shall
any such contract or contract arrangement entered into by or on
behalf of the Company in which any Director is in any way
interested, be liable to be avoided, nor shall any Director so
contracting or being so interested be liable to account to the
Company for any profit realized by any such contract or
arrangement by reason of such Director holding that office or of
the fiduciary relation thereby established. A Director,
notwithstanding his interest, may be counted in the quorum
present at any meeting whereat he or any other Director is
appointed to hold any such office or place of profit under
the Company or whereat the terms of any such appointment are
arranged and he may vote on any such appointment or arrangement.
98. Any director may act by himself or his firm in a
professional capacity for the Company, and he or his firm shall
be entitled to remuneration for professional services as if he
were not a Director; provided that nothing herein contained shall
authorize a Director or his firm to act as Auditor to the
Company.
DIVIDENDS AND RESERVES
99. The Company in general meeting may declare dividends, but no
dividend shall exceed the amount recommended by directors.
100. The directors may from time to time pay to the members such
interim dividends as appear to the Directors to be justified by
the profits of the Company.
18<PAGE>
101. The directors when paying dividends to the members in
accordance with the foregoing provisions may make such payment
either in cash or in specie.
102. No dividend shall be paid otherwise than out of profits or,
subject to the restrictions of the Law, share premium.
103. Subject to the rights of persons, if any, entitled to shares
with special rights as to dividends, all dividends shall be
declared and paid according to the amounts paid on the shares,
but if and so long as nothing is paid up on any of the shares in
the Company dividends may be declared and paid according to the
amounts of the shares. No amount paid on a share in advance of
calls shall, while carrying interest, be treated for the purposes
of this Article as paid on the share.
104. The directors may, before recommending any dividend, set
aside out of the profits of the Company such sums as they think
proper as a reserve or reserves which shall, at the discretion of
the directors, be applicable for meeting contingencies, or for
equalizing dividends, or for any other purpose to which the
profits of the Company may be properly applied, and pending such
application may, at the like discretion, either be employed in
the business of the Company or be invested in such investments
(other than shares of the Company) as the directors may from time
to time think fit.
105. If several persons are registered as joint holders of any
share, any of them may give effectual receipts of any dividend or
other moneys payable on or in respect of the share.
106. Any dividend may be paid by cheque or warrant sent through
the post to the registered address of the member of person
entitled thereto or in the case of joint holders to any one of
such joint holders at his registered address or to such person
and such address as the member or person entitled or such joint
holders as the case may be reflected . Every such cheque or
warrant shall be made payable to the order of the person to whom
it is sent or to the order of such other persons as the member or
person entitled or such joint holders as the case may be may
direct.
107. No dividend shall bear interest against the Company.
ACCOUNTS
108. The books of account relating to the Company's affairs shall
be kept in such a manner as may be determined from time to time
by the Company in general meeting or failing such determination
by the directors of the Company.
19<PAGE>
109. The books of account shall be kept at the registered office
of the Company, or at such other place or places as the directors
think fit, and shall always be open to the inspection of the
directors.
110. The directors shall from time to time determine whether and
to what extent at what time and places and under what conditions
or regulations the accounts and books of the Company or any of
them shall be open to the inspection of members not being
directors, and no member (not being a director) shall have any
right of inspecting any account or book or document of the
Company except as conferred by Law or authorized by the directors
or by the Company in general meeting.
AUDIT
111. The accounts relating to the Company's affairs shall be
audited in such manner as may be determined from time to time by
the Company in general meeting or failing any such determination
by the directors or failing any determination as aforesaid shall
not be audited.
WINDING UP
112. If the Company shall be wound up the liquidator may, with
the sanction of an ordinary resolution of the Company divide
amongst the members in specie or kind the whole or any part of
the assets of the Company (whether they shall consist of property
of the same kind or not) and may, for such purpose set such value
as he deems fair upon any property to be divided as aforesaid and
may determine how such division shall be carried out as between
the members or different classes of members. The liquidator may,
with the like sanction, vest the whole or any part of such assets
in trustees upon such trusts for the benefit of the
contributories as the liquidator, with the like sanction shall
think fit, but so that no member shall be compelled to accept any
shares or other securities whereon there is any liability.
INDEMNITY
113. Every director, (including for the purposes of this
Regulation) any Alternate Director appointed pursuant to the
provisions these Regulations), Managing Director, agent, auditor,
Secretary, Assistant Secretary, or other officer for the time
being and from time to time of the Company and the personal
representatives of the same shall be indemnified and secured
harmless out of the assets and funds of the Company against all
actions, proceedings, costs, charges, expenses, losses, damages
or liabilities incurred or sustained by him in or about the
conduct of the Company's business or affairs or in the execution
or discharge of his duties, powers, authorities or discretion,
20<PAGE>
including without prejudice to the generality of the
foregoing,any costs, expenses, losses or liabilities incurred by
him in defending (whether successfully or otherwise) any civil
proceedings concerning the Company or its affairs in any court
whether in the Cayman Islands or elsewhere.
114. No such Director, Alternate Director, Managing Director,
agent, auditor, Secretary, Assistant Secretary or other office of
the Company shall be liable for (i) the acts, receipts, neglects,
defaults or omissions of any other such director or officer or
agent of the Company or (ii) by reason of his having joined in
any receipt of money not received by him personally, or (iii) for
any loss on account of defect of title to any property of the
Company or (iv) on account of the insufficiency of any security
in or upon which any money of the Company shall be invested or
(v) for any loss incurred through any bank, broker or other agent
or (vi) for any loss occasioned by any negligence, default,
breach of duty, breach of trust, error of judgment or oversight
on his part or (vii) for any loss, damage or misfortune
whatsoever which may happen in or arise from the execution or
discharge of the duties, powers, authorities, or discretion of
his office or in relation thereto, unless the same shall happen
through his own dishonesty.
ALTERNATE DIRECTOR
115. Any director may in writing appoint another person who is
approved by the majority of the directors to be his alternate to
act in his place at any meeting of the directors at which he is
unable to be present. Every such alternate shall be entitled to
notice of meetings of the directors and to attend and vote
thereat as a director when the person appointing him is not
personally present and where he is a director to have a separate
vote on behalf of the director he is representing in addition to
his own vote. A director may at any time in writing revoke the
appointment of an alternate appointed by him. Every such
alternate shall be an officer of the company and shall not be
deemed to be the agent of the director appointing him. The
remuneration of such alternate shall be payable out of the
remuneration or the director appointing him and the proportion
thereof shall be agreed between them.
POWER OF ATTORNEY
116. The directors may from time to time and at any time by
revocable or irrevocable Power of Attorney appoint any company,
firm or person or body of persons, whether nominated directly or
indirectly by the directors, to be the Attorney or Attorneys of
the Company for such purposes and with such powers, authorities
and discretion (not exceeding those vested in or exercisable by
the directors under these regulations) and for such period and
21<PAGE>
subject to such conditions as they may think fit, and any such
Powers of Attorney may contain such provisions for the protection
and convenience of persons dealing with any such Attorney as the
directors may think fit and may also authorize any such Attorney
to delegate all or any of the powers, authorities and discretion
vested in him.
NOTICES
117. A notice may be given by the Company to any member either
personally or by sending it by post to him at his registered
address, or (if he has no registered address in the Island) to
the address, if any, in the Island supplied by him to the Company
for the giving of notices to him. Where a notice is sent by
post, service of the notice shall be deemed to be effected by
properly addressing, prepaying, and posting a letter containing
the notice, and to have been effected in the case of a notice of
a meeting at the expiration of 24 hours after the letter
containing the same is posted, and in any other case at the time
at which the letter would be delivered in the ordinary course of
post.
118. If a member has no registered address in the Island and has
not supplied to the Company an address in the Island for the
giving of notices to him, a notice addressed to him, or generally
to the members of the Company and advertised in a daily newspaper
circulating in the Island shall be deemed to be duly given to him
at noon on the day following the day on which the newspaper is
circulated and the advertisement appeared therein.
119. A notice may be given by the Company to the joint holders of
a share by giving the notice to the joint holder named first in
the register of members in respect of the share.
120. A notice may be given by the Company to the person entitled
to a share in consequence of the death or bankruptcy of a member
by sending it through the post in a prepaid letter addressed to
them by name, or by the title of representatives of the deceased,
or to trustee of the bankrupt, or by any like description, at the
address, if any, within the Island supplied for the purpose by
the persons claiming to be so entitled, or (until such an address
has been so supplied) by giving the notice in any manner in which
the same might have been given if the death or bankruptcy had not
occurred.
121. Notice of every general meeting shall be given in some
manner hereinbefore authorized to:
(a) every member except those members who (having no registered
address in the Island) have not supplied to the Company an
address in the Island for the giving of notices to them; and
(b) every person entitled to a share in consequence of the death
22<PAGE>
or bankruptcy of a member, who, but for his death or bankruptcy
would be entitled to receive notice of the meeting.
No other persons shall be entitled to receive notices of general
meetings.
REGISTRATION BY WAY OF CONTINUATION
122. (a) The Company may by special resolution resolve to be
registered by way of continuation in a relevant designated
jurisdiction outside the Cayman Islands or such other
jurisdiction in which it is for the time being incorporated
registered or existing;
(b) In furtherance of a resolution adopted pursuant to
paragraph (a) of this Regulation the Directors may cause an
application to be made to the Registrar of Companies to de-
register the Company in the Cayman Islands or such other
jurisdiction in which it is for the time being incorporated
registered or existing and may cause all such further steps as
they consider appropriate to be taken to effect the transfer by
continuation of the Company.
23<PAGE>
-----------------------------------------------------------------
NAME, ADDRESS & DESCRIPTION OF SUBSCRIBER
-----------------------------------------------------------------
Keith M. High
P.O. Box 1062
George Town
Grand Cayman
Banker
Dated this 16th day of June, 1993
Witness to the above signatures
Susan Wilson
PO Box 1062
Grand Cayman
I, DELANO 0. SOLOMON
Registrar of Companies in and
for the Cayman Islands DO HEREBY
CERTIFY that this is a true copy
of the Articles of Association of
EI CAYMAN duly registered on
14th of June 1993
Registrar of Companies
24<PAGE>
Exhibit E-6
VENTURE DISCLOSURES
Operation and Maintenance Service Business
Pursuant to the provisions contained in the Securities and Exchange
Commission (SEC) Order dated December 15, 1993 for SEC File No. 70-8289,
neither Jersey Central Power & Light Company nor Metropolitan Edison Company
entered into any transactions nor recognized any revenues during the calendar
year 1994 for activity related to Operation and Maintenance ("O & M") Service
Business.
During 1994, Pennsylvania Electric Company entered into a contract to
provide O & M Services to U.S. Operating Services Company at its Scrubgrass
generating facility. No profit was realized as the O & M services were
provided on a cost-recovery basis only. O & M services were only performed
once during 1994, therefore no employees of Pennsylvania Electric Company were
engaged to perform O & M services on a "regular basis".
-1-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS Exhibit F-1
Part III.
GPU
The following pages consist of disclosures made in GPU's 1995 Proxy
Statement as well as disclosures made in the GPU and System Companies' 1994
Annual report on Form 10-K.
General Public Utilities Corporation
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth, as of February 1, 1994, the beneficial
ownership of equity securities of GPU System companies of each of the GPU
directors and each of the executive officers named in the Summary Compensation
Table, and of all directors and executive officers of GPU as a group. The
shares owned by all directors and executive officers as a group constitute
less than 1% of the total shares outstanding.
Amount and Nature
of Beneficial
Name Title of Security Ownership(1)
Louis J. Appell, Jr. GPU Common Stock 1,400 shares-Direct
4,274 shares-Indirect
Donald J. Bainton GPU Common Stock 3,400 shares-Direct
Theodore H. Black GPU Common Stock 6,531 shares-Direct
Philip R. Clark GPU Common Stock 4,992 shares-Direct
362 shares-Indirect
John G. Graham GPU Common Stock 6,411 shares-Direct
1,680 shares-Indirect
Thomas B. Hagen GPU Common Stock 6,566 shares-Direct
Henry F. Henderson, Jr. GPU Common Stock 1,976 shares-Direct
1,200 shares-Indirect
Ira H. Jolles GPU Common Stock 5,025 shares-Direct
James R. Leva GPU Common Stock 3,912 shares-Direct
100 shares-Indirect
John M. Pietruski GPU Common Stock 3,400 shares-Direct
Catherine A. Rein GPU Common Stock 1,800 shares-Direct
Paul R. Roedel GPU Common Stock 2,000 shares-Direct
Carlisle A. H. Trost GPU Common Stock 1,317 shares-Direct
Robert L. Wise GPU Common Stock 5,092 shares-Direct
Patricia K. Woolf GPU Common Stock 2,511 shares-Direct
All GPU Directors and
Executive Officers
as a Group GPU Common Stock 73,058 shares-Direct
9,200 shares-Indirect
(1) The number of shares owned and the nature of such ownership, not being
within the knowledge of GPU, have been furnished by each individual.
-1-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
GPU
Remuneration of Executive Officers
PERSONNEL AND COMPENSATION COMMITTEE REPORT
GPU has an executive compensation program consisting of three separate
but inter-related components: the Base Salary Program, the Incentive
Compensation Program and the 1990 Stock Plan.
Compensation Philosophy
The Corporation's compensation philosophy is to provide a competitive
compensation program that allows GPU to attract and retain top executive
talent, to provide an incentive for executives to achieve business objectives
and to reward executives when results materialize. The program provides a
combination of short-term and long-term compensation vehicles to encourage
executives to weigh short-term and long-term corporate interests.
Market Comparisons
To assist in determining competitive compensation levels, GPU retains a
major compensation consulting firm to ascertain competitive rates for
executive positions similar to those at GPU. In developing comparisons, the
consulting firm uses survey data from companies perceived to be in competition
with GPU for executive talent. These companies are primarily electric
utilities similar to GPU in size and complexity although data on non-utility
companies are used to a lesser extent since GPU competes for talent in the
larger market. The companies used in these comparisons include some but not
all of those which make up the S&P Utility Index shown in the performance
graph on page 16, and the comparison companies represent a much larger sample
of the market for executive talent than do the companies in the Index.
Within the defined competitive market for executive talent, GPU targets
pay levels at the median, or 50th percentile, when corporate objectives are
fully achieved. Because the executive compensation program is designed to vary
total pay based on the extent to which objectives are achieved, actual pay
levels in any given year may be above the competitive median or below it.
Base Salary Program
The Base Salary Program is intended to enable the Corporation to attract
and retain needed executive talent. Individual executive base salaries are
determined primarily by the identification of competitive levels and an
assessment of individual executive performance. Annual increases, if any, are
determined based on the amounts believed needed to maintain base pay at
competitive levels, the assessment of each executive's performance,
particularly over the past year, and the Board of Directors' determination of
what constitutes appropriate spending given the Corporation's financial
results. These factors are not formally weighted and the Board uses subjective
judgment in arriving at final amounts.
Base salary increases for the executive officers and for Mr. James R.
Leva, Chairman, President and Chief Executive Officer, were determined in this
manner. The contribution of the executive officers and Mr. Leva, in
-2-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
GPU
particular, to the Corporation's success made it appropriate, in the opinion
of the Board, to increase 1993 salary levels.
Incentive Compensation Plan
The Incentive Compensation Program provides an annual incentive
opportunity for executives. Specific business objectives are determined in
advance and targeted award levels set so that, if the objectives are achieved,
the actual bonus awards will be at competitive levels. If results are not
achieved, awards, if any, will be below target levels; if targeted results are
exceeded, awards will be above target although the total awards for all
officers cannot exceed 125 percent of target. No awards can be made in any
year in which dividends are not declared or paid on GPU common stock.
The business objectives which serve as the basis for awards are a
combination of the performance of GPU as a corporation, the performance of the
executive's employer company and the achievement of the executive's individual
objectives. GPU corporate performance determines the total dollars available
and each subsidiary's results determine its share of the total dollars.
GPU corporate performance measures are return on equity (40 percent),
nuclear safety (30 percent), customer cost as compared to neighboring
utilities (15 percent) and quality of customer service defined as average
interrupted minutes of service (15 percent). These measures have been
developed to reflect the Corporation's responsibilities to each of its major
constituencies - shareholders, customers and the general public.
For the Corporation's operating electric companies, JCP&L, Met-Ed, and
Penelec, performance measures are earnings (40 percent), budget management (25
percent), customer cost (20 percent) and quality of service (15 percent). For
GPUN, measures are nuclear safety (50 percent), power generation (25 percent)
and budget management (25 percent). GPUSC measures are a weighted average of
the other companies'.
Final awards for each executive also reflect the executive's individual
performance and contribution to the achievement of the corporate objectives.
This portion of the total award is based on the Board's subjective assessment
of the executive's contribution.
The incentive awards for executive officers and for Mr. Leva reflected
overall results that were slightly above target. Revenue increases combined
with strict budget management resulted in the ROE objective being exceeded.
Nuclear safety objectives were also exceeded. Neither the customer cost nor
the quality of service objectives was fully achieved. Severe storms in the
first quarter resulted in large scale service interruptions and were the
primary cause of missing the quality of service objective.
Individual system company results varied. GPUN exceeded each of its
objectives. Among the three operating companies, all exceeded earnings
objectives; two exceeded the budget management objective while the third was
slightly below target. All three fell below objective in customer cost and one
achieved the quality of service objective while the other two did not.
-3-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
GPU
Individual awards to executives and Mr. Leva reflected these results as
well as their individual contributions. Mr. Leva's award was above the
targeted level reflecting the achievement of corporate results and his
individual contribution to the achievement of those results.
Mr. Leva's individual achievements for 1993 included direction of an
extensive strategic planning effort to position GPU to compete effectively in
a deregulated market. As part of this effort, Mr. Leva also took the lead in
developing a corporate vision for GPU and a comprehensive set of corporate
values which will serve as a guide to all employees as they work to meet the
challenges posed by changes occurring within the electric utility industry.
Mr. Leva's personal leadership was considered crucial to the success of the
vision effort, as he generated employee input during the process and took the
lead in communicating the vision and values throughout the Corporation.
Operationally, the Corporation performed exceptionally well under Mr.
Leva's guidance. The nuclear plants had an outstanding year, operating at
capacity factors well above industry averages. Refueling outages were managed
more cost-effectively and the plants earned a financial reward for GPU under
the New Jersey Performance Standard for both 1992-93 and 1993-94.
Under Mr. Leva's leadership, GPU achieved record earnings, both in
dollars and on a per-share basis during 1993. In addition, the Corporation
continued to provide total return (dividends plus share price increase) to its
shareholders of 18 percent, compared with 12 percent for the average electric
utility.
Mr. Leva and the management team have successfully positioned GPU in the
forefront of electric utilities taking a responsible position on environmental
issues. In support of the Clean Air Act of 1990, the Corporation made major
investments in scrubbers to reduce emissions from a coal-fired generating
station. GPU has also pledged support for the U.S. Department of Energy's
program of voluntary reduction of greenhouse gases. In addition, Penelec's
successful testing of a new coal water slurry process demonstrated that the
procedure can reduce coal use significantly by turning waste particles into
low-emission fuel.
Again, under Mr. Leva's direction, GPU and its senior management have
taken leadership positions within our service territory communities. In
addition to their efforts in economic development, they strongly support, with
contributions of both time and expertise, a full range of volunteer
activities, with an emphasis on education programs and projects.
For example, after-school homework centers, funded by the operating
companies and staffed by employee volunteers, have been established in a low-
income housing development and in a middle school; employees work with
teachers to create vital comprehensive "real world" lesson plans for their
students; and employees are encouraged to visit classrooms as guest speakers,
describing their jobs and the skills needed to succeed in today's workforce.
These accomplishments supported the Incentive Compensation awards
approved by the Board.
-4-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
GPU
1990 Stock Plan
Awards in 1993 under the Stock Plan were made in the form of restricted
share units. These units give the recipient the right to receive shares of GPU
stock (or cash at the discretion of the Committee) at the end of the vesting
period which is normally five years. Dividend equivalents are made in the form
of additional units over the vesting period. The value of the award when the
grant vests is determined by the value of GPU stock and GPU dividends, thus
linking this component of executive compensation to changes in shareholder
value.
The Plan provides for the use of other stock vehicles such as stock
options and stock appreciation rights; however, the Board determined that the
use of restricted share units provides the closest relationship to shareholder
value.
The terms of the 1993 grants include an additional link to shareholder
value by providing for a cash payment at the time the units vest if GPU's
total shareholder return over the vesting period exceeds the total return of
the companies in the Edison Electric Institute's Index of Investor Owned
Utilities. This cash payment is intended to allow executives to satisfy their
income tax obligation on the vesting shares and continue to hold the shares so
that the link between shareholders and executives is continued.
Because executives who resign before retirement normally forfeit their
restricted units, the Stock Plan awards also serve as a retention device.
Several factors are considered in determining the size of actual grants
to executives. Target levels are set so that the total direct compensation
package, including awards under this plan, provides a competitive level of
compensation. The Board also considers individual executive performance and
contribution and the size of awards previously granted. These factors are not
weighted, and, as with base salary, the Board uses subjective judgment in its
final decision.
The 1993 grant for Mr. Leva was 4,000 units. This grant reflected the
factors described.
Personnel and Compensation
Committee Members
Donald J. Bainton
Theodore H. Black
Henry F. Henderson, Jr.
Catherine A. Rein
-5-<PAGE>
<TABLE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
GPU
<CAPTION>
SUMMARY COMPENSATION TABLE
Annual Compensation Long-Term
Compensation
Awards
Other
Name and Annual Restricted All Other
Principal Compen- Stock/Unit Compen-
Position Year Salary Bonus sation(1) Awards(2) sation
<S> <C> <C> <C> <C> <C> <C>
James R. Leva 1993 $ 523,750 $189,000 $ - $124,000 $ 57,494(3)
Chairman, President and 1992 441,304 150,000 - 98,800 40,804
Chief Executive Officer, 1991 262,500 67,000 - 46,000 23,610
General Public Utilities
Corporation
Ira H. Jolles 1993 314,750 69,000 - 49,600 25,607(4)
Senior Vice President 1992 301,250 62,500 - 48,100 21,948
and General Counsel, 1991 288,500 57,000 - 46,000 16,313
General Public Utilities
Corporation
Philip R. Clark 1993 291,250 80,000 911 48,825 43,308(5)
President, GPU 1992 276,250 75,000 790 46,800 33,901
Nuclear Corporation 1991 262,500 57,000 551 46,000 23,530
Robert L. Wise 1993 278,250 67,000 - 43,710 28,753(6)
President, Pennsylvania 1992 266,250 55,000 - 42,900 21,311
Electric Company 1991 251,250 54,000 - 46,000 14,514
John G. Graham 1993 261,250 59,000 - 41,850 41,518(7)
Senior Vice President 1992 248,750 51,500 - 40,300 30,606
and Chief Financial Officer, 1991 243,750 40,000 - 34,500 32,330
General Public Utilities
Corporation
<FN>
(1) "Other Annual Compensation" is composed entirely of the above-market
interest accrued on the pre-retirement portion of deferred
compensation.
(2) Number and value of aggregate restricted shares/units at the end of 1993
(dividends are paid or accrued on these restricted shares/units and
reinvested):
</FN>
</TABLE>
Aggregate Shares/Units Aggregate Value
James R. Leva 11,000 $295,350
Ira H. Jolles 6,850 $174,675
Philip R. Clark 6,575 $168,175
Robert L. Wise 6,260 $159,160
John G. Graham 5,550 $142,094
-6-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
GPU
(3) Consists of the Corporation's matching contributions under the Savings
Plan ($9,434), matching contributions under the non-qualified deferred
compensation plan ($11,516), the imputed interest on employer paid
premiums for split-dollar life insurance ($26,105), and above-market
interest accrued on the retirement portion of deferred compensation
($10,439).
(4) Consists of the Corporation's matching contributions under the Savings
Plan ($9,434), matching contributions under the non-qualified deferred
compensation plan ($3,156), the imputed interest on employer paid
premiums for split-dollar life insurance ($12,689), and above-market
interest accrued on the retirement portion of deferred compensation
($328).
(5) Consists of the Corporation's matching contributions under the Savings
Plan ($9,434), matching contributions under the non-qualified deferred
compensation plan ($2,216), the imputed interest on employer paid
premiums for split-dollar life insurance ($18,152), and above-market
interest accrued on the retirement portion of deferred compensation
($13,506).
(6) Consists of the Corporation's matching contributions under the Savings
Plan ($9,434), matching contributions under the non-qualified deferred
compensation plan ($1,696), the imputed interest on employer paid
premiums for split-dollar life insurance ($5,286), and above-market
interest accrued on the retirement portion of deferred compensation
($12,337).
(7) Consists of the Corporation's matching contributions under the Savings
Plan ($9,429), matching contributions under the non-qualified deferred
compensation plan ($1,016), the imputed interest on employer paid
premiums for split-dollar life insurance ($10,433), and above-market
interest accrued on the retirement portion of deferred compensation
($20,640).
LONG-TERM INCENTIVE PLANS - AWARDS IN LAST FISCAL YEAR
Performance Estimated future payouts
Number of or other under non-stock price
shares, period until based plans(1)
units or maturation Target
Name other rights or payout ($ or #)
James R. Leva 4,000 5 years $86,450
Ira H. Jolles 1,600 5 years $39,520
Philip R. Clark 1,575 5 years $34,040
Robert L. Wise 1,410 5 years $30,474
John G. Graham 1,350 5 years $29,177
-7-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
GPU
(1) The 1990 Stock Plan for Employees of General Public Utilities Corporation
and Subsidiaries also provides for a Performance Cash Incentive Awards in
the event that the annualized GPU Total Shareholder Return exceeds the
annualized Industry Total Return (Edison Electric Institute's Investor-
Owned Electric Utility Index) for the period between the award and
vesting dates. These payments are designed to compensate recipients of
restricted stock/unit awards for the amount of federal and state income
taxes that will be payable upon the restricted stock/units that are
vesting for the recipient. The amount is computed by multiplying the
applicable gross-up percentage by the amount of gross income the
recipient recognizes for federal income tax purposes when the
restrictions lapse. The estimated amounts above are computed based on
the number of restricted units awarded for 1993 multiplied by the 1993
year-end market value of $30.875. Actual payments would be based on the
market value of GPU common stock at the time the restrictions lapse and
may be different from those indicated above.
Employment, Termination and Change-in-Control Arrangements
Mr. Jolles
Retirement and Disability - If Mr. Jolles retires on or after his normal
retirement date (the last day of the month in which he attains age 65), he
will receive (in addition to his benefits under GPUSC's employee retirement
plans) a supplemental retirement pension from GPU System sources equal to the
additional pension he would have received under the GPUSC employee retirement
plans as if he had an additional 20 years of past creditable service. If Mr.
Jolles reaches his normal retirement date while he is receiving disability
income under GPUSC's disability income plans, he will thereafter receive a
supplemental retirement pension from GPU System sources equal to the
additional pension he would have been paid under GPUSC's employee retirement
plans as if he had an additional 20 years of past creditable service.
Termination - (i) If Mr. Jolles' employment within the GPU System
terminates "involuntarily," as defined, within two years following the
occurrence of a "change in control" of GPU, as defined, or without cause, he
shall receive from GPU System sources a supplemental retirement pension which
would have been paid to him under GPUSC's employee retirement plans as if he
had an additional 20 years of past creditable service. (ii) If, however, his
employment terminates for any other reason (except upon retirement or death),
he will receive from GPU System sources a supplemental retirement pension
equal to the additional pension he would have been paid under GPUSC's employee
retirement plans as if he had additional years of creditable service ranging
from two years up to a maximum of 20 years depending upon his years of actual
employment by GPUSC at the time of termination. He will also receive from
GPU System sources the amount of any pension not paid to him under GPUSC's
employee retirement plans by reason of his not having met applicable vesting
requirements.
Death - In the event of Mr. Jolles' death before he begins receiving
benefits under GPUSC's employee retirement plans, his surviving spouse, if
any, shall receive such benefits during her lifetime, together with the
supplemental retirement pension benefits which would have been payable to him
as described in paragraph (ii) above.
-8-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
GPU
Other - To the extent relevant to the level of benefits payable to Mr.
Jolles under the other benefit plans provided for senior GPU executives, he
will be treated as having the years of creditable service as described in
paragraph (ii) above.
Retirement Plans
The GPU System pension plans provide for pension benefits, payable for
life after retirement, based upon years of creditable service with the GPU
System and the employee's career average compensation as defined below.
Under federal law, an employee's pension benefits that may be paid from a
qualified trust under a qualified pension plan such as the GPU System plans
are subject to certain maximum amounts. The GPU System companies also have
adopted non-qualified plans providing that the portion of a participant's
pension benefits which, by reason of such limitations or source, cannot be
paid from such a qualified trust shall be paid directly on an unfunded basis
by the participant's employer.
The following table illustrates the amount of aggregate annual pension
from funded and unfunded sources resulting from employer contributions to the
qualified trust and direct payments payable upon retirement in 1994 (computed
on a single life annuity basis) to persons in specified salary and years of
service classifications:
<TABLE>
ESTIMATED ANNUAL RETIREMENT BENEFITS (2) (3) (4)
BASED ON CAREER AVERAGE COMPENSATION
(1994 Retirement)
<CAPTION>
Career
Average
Compen- 10 Years 15 Years 20 Years 25 Years 30 Years 35 Years 40 Years
sation(1) of Service of Service of Service of Service of Service of Service of Service
<S> <C> <C> <C> <C> <C> <C> <C>
$ 50,000 $ 9,410 $ 14,114 $ 18,819 $ 23,524 $ 28,229 $ 32,934 $ 37,356
100,000 19,410 29,114 38,819 48,524 58,229 67,934 76,956
150,000 29,410 44,114 58,819 73,524 88,229 102,934 116,556
200,000 39,410 59,114 78,819 98,524 118,229 137,934 156,156
250,000 49,410 74,114 98,819 123,524 148,229 172,934 195,756
300,000 59,410 89,114 118,819 148,524 178,229 207,934 235,356
350,000 69,410 104,114 138,819 173,524 208,229 242,934 274,956
400,000 79,410 119,114 158,819 198,524 238,229 277,934 314,556
450,000 89,410 134,114 178,819 223,524 268,229 312,934 354,156
500,000 99,410 149,114 198,819 248,524 298,229 347,934 393,756
550,000 109,410 164,114 218,819 273,524 328,229 382,934 433,356
600,000 119,410 179,114 238,819 298,524 358,229 417,934 472,956
650,000 129,410 194,114 258,819 323,524 388,229 452,934 512,556
700,000 139,410 209,114 278,819 348,524 418,229 487,934 552,156
750,000 149,410 224,114 298,819 373,524 448,229 522,934 591,756
800,000 159,410 239,114 318,819 398,524 478,229 557,934 631,356
______________
</TABLE>
-9-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
GPU
(1) Career Average Compensation is the average annual compensation received
from January 1, 1984 to retirement and includes Base Salary, Deferred
Compensation and Incentive Compensation Plan awards. The career average
compensation amounts for the following named executive officers differ
by more than 10% from the three year average annual compensation set
forth in the Summary Compensation Table and are as follows: Messrs. Leva
- $314,964; Clark - $261,317; Wise - $222,558 and Graham - $238,029.
(2) Years of Creditable Service: Messrs. Leva - 42 years; Jolles - 10 years;
Clark - 17 years; Wise - 30 years; and Graham - 24 years.
(3) Based on an assumed retirement at age 65 in 1994. To reduce the above
amounts to reflect a retirement benefit assuming a continual annuity to
a surviving spouse equal to 50% of the annuity payable at retirement,
multiply the above benefits by 90%. The estimated annual benefits are
not subject to any reduction for Social Security benefits or other
offset amounts.
(4) Annual retirement benefit cannot exceed 55% of the average compensation
received during the last three years prior to retirement.
In addition to amounts payable under the plans, Mr. Leva is entitled to
receive upon his retirement pension payments of $4,140 annually.
Remuneration of Directors
Non-employee directors receive an annual retainer of $15,000, a fee of
$1,000 for each Board meeting attended and a fee of $1,000 for each Committee
meeting attended. Committee Chairmen receive an additional retainer of $2,500
per year.
Retirement Plan for Outside Directors
Under the Corporation's Retirement Plan for Outside Directors, an
individual who completes 54 months of service as a non-employee director is
entitled to receive retirement benefits equal to the product of (A) the number
of months of service completed and (B) the monthly compensation paid to the
director at the date of retirement. Retirement benefits under this plan are
payable to the directors (or, in the event of death, to designated
beneficiaries) in monthly installments of 1/12 of the sum of (x) the then
annual retainer paid at time of retirement plus (y) the cash value of the last
award under the Restricted Stock Plan for Outside Directors per month, over a
period equal to the director's service as such, unless otherwise directed by
the Personnel and Compensation Committee, commencing at the later of age 60 or
upon retirement. As of December 31, 1993, the following directors had at
least 54 months of service:
-10-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
GPU
Director Months of Service
Louis J. Appell, Jr. 251
Donald J. Bainton 138
Theodore H. Black 70
Thomas B. Hagen 70
Henry F. Henderson 59
Paul R. Roedel 180
John M. Pietruski 59
Catherine A. Rein 59
Patricia K. Woolf 125
Restricted Stock Plan for Outside Directors
The Corporation has adopted a Restricted Stock Plan for Outside Directors
("Directors Plan") which was initially approved by stockholders at the 1989
Annual Meeting. Under the Directors Plan, each director who is not an
employee of the Corporation or any of its subsidiaries ("Outside Director") is
paid a portion of his or her annual compensation in the form of 300 shares of
GPU common stock.
A total of 40,000 shares of GPU common stock (subject to adjustment for
stock dividends, stock splits, recapitalizations and other specified events)
has been authorized for issuance under the Directors Plan. Any shares awarded
which are forfeited as provided by the Directors Plan will again be available
for issuance.
Shares of common stock are awarded to Outside Directors on the condition
that the director serves or has served as an Outside Director until (i) death
or disability, (ii) failure to stand for re-election at the end of the term
upon reaching age 70, (iii) resignation or failure to stand for re-election
with the consent of the Board, which is defined in the Directors Plan to mean
approval thereof by at least 80% of the directors other than the affected
director or (iv) failure to be re-elected to the Board after being duly
nominated. Termination of service for any other reason, including any
involuntary termination effected by action or inaction of the Board, will
result in forfeiture of all shares awarded.
Until termination of service, an Outside Director may not dispose of any
shares of common stock awarded under the Directors Plan, but has all other
rights of a shareholder with respect to such shares, including voting rights
and the right to receive all cash dividends paid with respect to awarded
shares.
-11-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
<TABLE>
Jersey Central Power & Light Company
Metropolitan Edison Company/Pennsylvania Electric Company
EXECUTIVE COMPENSATION.
Remuneration of Executive Officers
SUMMARY COMPENSATION TABLE
<CAPTION>
Long-Term
Annual Compensation Compensation
Other Awards All
Name and Annual Restricted Other
Principal Compen- Stock/Unit Compen-
Position Year Salary Bonus sation(1) Awards(2) sation
<S> <C> <C> <C> <C> <C> <C>
J. R. Leva
Chairman and
Chief Executive
Officer (3) (3) (3) (3) (3) (3)
D. Baldassari 1993 $253,750 $57,000 $ - $41,850 $11,192(4)
President 1992 211,480 50,000 - 35,100 8,985
1991 117,600 18,500 - 12,190 9,227
M. P. Morrell 1993(5) 144,200 26,000 1,932 15,500 5,768(6)
Vice Presi- 1992 137,500 24,900 1,166 14,560 5,267
dent 1991 128,750 21,000 547 12,650 5,150
C. D. Cudney 1993 137,675 24,000 - 14,260 7,573(7)
Vice Presi- 1992 132,400 20,900 - 14,300 5,741
dent 1991 125,800 19,000 - 13,340 4,994
P. H. Preis 1993 135,900 22,500 - 14,260 4,881(8)
Vice Presi- 1992 130,725 20,600 - 13,780 4,285
dent and 1991 125,825 19,000 - 12,190 3,794
Comptroller
E. J. McCarthy 1993 125,825 22,500 - 13,020 5,033(6)
Vice Presi- 1992 121,125 19,100 - 13,000 4,845
dent 1991 116,625 18,000 - 11,270 2,744
</TABLE>
(1) "Other Annual Compensation" is composed entirely of the above-market
interest accrued on the preretirement portion of deferred compensation.
-12-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (continued) Exhibit F-1
Part III
JCP&L
(2) Number and value of aggregate restricted shares/units at the end of 1993
(dividends are paid or accrued on these restricted shares/units and
reinvested):
Aggregate Aggregate
Shares/Units Value
D. Baldassari 3,500 $95,114
M. P. Morrell 1,910 $49,348
C. D. Cudney 1,880 $48,316
P. H. Preis 1,810 $46,646
E. J. McCarthy 1,680 $43,264
(3) As noted above, Mr. Leva is Chairman and Chief Executive Officer of the
Company and its affiliates, as well as Chairman and Chief Executive
Officer of GPU and GPUSC. Mr. Leva is compensated by GPUSC for his
overall services on behalf of the GPU System and, accordingly, is not
compensated directly by the Company for his services. Information with
respect to Mr. Leva's compensation is included on pages 13 to 15 of GPU's
1994 definitive proxy statement, which are incorporated herein by
reference.
(4) Consists of the Company's matching contributions under the Savings Plan
($9,427) and the imputed interest on employer-paid premiums for split-
dollar life insurance ($1,765).
(5) Mr. Morrell was elected Vice President-Materials, Services and Regulatory
Affairs of the Company effective January 15, 1993. Prior to assuming
this position, Mr. Morrell served as Vice President and Treasurer of the
Company.
(6) Consists of the Company's matching contributions under the Savings Plan.
(7) Consists of the Company's matching contributions under the Savings Plan
($4,847) and above-market interest accrued on the retirement portion of
deferred compensation ($2,726).
(8) Consists of the Company's matching contributions under the Savings Plan
($3,805) and above-market interest accrued on the retirement portion of
deferred compensation ($1,076).
-13-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (continued) Exhibit F-1
Part III
JCP&L
LONG-TERM INCENTIVE PLANS - AWARDS IN LAST FISCAL YEAR
Performance Estimated future payouts
Number of or other under nonstock price-
shares, period until based plans(1)
units or maturation
Name other rights or payout Target ($ or #)
D. Baldassari 1,350 5 years $29,177
M. P. Morrell 500 5 years 10,806
C. D. Cudney 460 5 years 9,942
P. H. Preis 460 5 years 9,942
E. J. McCarthy 420 5 years 9,077
(1) The 1990 Stock Plan for Employees of General Public Utilities Corporation
and Subsidiaries also provides for a Performance Cash Incentive Award in
the event that the annualized GPU Total Shareholder Return exceeds the
annualized Industry Total Return (Edison Electric Institute's Investor-
Owned Electric Utility Index) for the period between the award and
vesting dates. These payments are designed to compensate recipients of
restricted stock/unit awards for the amount of federal and state income
taxes that will be payable upon the restricted stock/units that are
vesting for the recipient. The amount is computed by multiplying the
applicable gross-up percentage by the amount of gross income the
recipient recognizes for federal income tax purposes when the
restrictions lapse. The estimated amounts above are computed based on
the number of restricted units awarded for 1993 multiplied by the 1993
year-end market value of $30.875. Actual payments would be based on the
market value of GPU common stock at the time the restrictions lapse, and
may be different from those indicated above.
Proposed Remuneration of Executive Officers
No executive officer of the Company has an employment contract with the
Company. The compensation of the Company's executive officers is determined
from time to time by the Board of Directors of the Company.
Retirement Plans
The GPU System pension plans provide for pension benefits, payable for
life after retirement, based upon years of creditable service with the GPU
System and the employee's career average annual compensation as defined below.
Under federal law, an employee's pension benefits that may be paid from a
qualified trust under a qualified pension plan such as the GPU System plans
are subject to certain maximum amounts. The GPU System companies also have
adopted nonqualified plans providing that the portion of a participant's
pension benefits that, by reason of such limitations or source, cannot be paid
from such a qualified trust shall be paid directly on an unfunded basis by the
participant's employer.
-14-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (continued) Exhibit F-1
Part III
JCP&L
The following table illustrates the amount of aggregate annual pension
from funded and unfunded sources resulting from employer contributions to the
qualified trust and direct payments payable upon retirement in 1994 (computed
on a single life annuity basis) to persons in specified salary and years of
service classifications:
<TABLE>
Estimated Annual Retirement Benefits(2)(3)(4)
Based Upon Career Average Compensation
(1994 Retirement)
15 Years 20 Years 25 Years 30 Years 35 Years 40 Years
of Service of Service of Service of Service of Service of Service
<CAPTION>
Career Average
Compensation (1)
<S> <C> <C> <C> <C> <C> <C>
$100,000 $ 29,114 $ 38,819 $ 48,524 $ 58,229 $ 67,934 $ 76,956
150,000 44,114 58,819 73,524 88,229 102,934 116,556
200,000 59,114 78,819 98,524 118,229 137,934 156,156
250,000 74,114 98,819 123,524 148,229 172,934 195,756
300,000 89,114 118,819 148,524 178,229 207,934 235,356
350,000 104,114 138,819 173,524 208,229 242,934 274,956
400,000 119,114 158,819 198,524 238,229 277,934 314,556
</TABLE>
(1) Career Average Compensation is the average annual compensation
received from January 1, 1984 to retirement and includes Base
Salary, Deferred Compensation and Incentive Compensation Plan
awards. The Career Average Compensation amounts for the following
named executive officers differ by more than 10% from the three-year
average annual compensation set forth in the Summary Compensation
Table and are as follows: Messrs. Baldassari - $140,376; Morrell -
$117,030; Cudney - $117,193; Preis - $124,340; and McCarthy -
$115,745.
(2) Years of creditable service: Messrs. Baldassari - 24; Morrell - 22;
Cudney - 32; Preis - 33; and McCarthy - 33.
(3) Based on an assumed retirement at age 65 in 1994. To reduce the
above amounts to reflect a retirement benefit assuming a continual
annuity to a surviving spouse equal to 50% of the annuity payable at
retirement, multiply the above benefits by 90%. The estimated
annual benefits are not subject to any reduction for Social Security
benefits or other offset amounts.
(4) Annual retirement benefit cannot exceed 55% of the average
compensation received during the last three years prior to
retirement.
-15-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (continued) Exhibit F-1
Part III
JCP&L
Remuneration of Directors
Nonemployee directors receive annual compensation of $13,000, a fee of
$1,000 for each Board meeting attended and a fee of $1,000 for each Committee
meeting attended. The Company has in effect a deferred remuneration plan
pursuant to which outside directors may elect to defer all or a portion of
current remuneration.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
All of the Company's 15,371,270 outstanding shares of common stock are
owned beneficially and of record by the Company's parent, General Public
Utilities Corporation, 100 Interpace Parkway, Parsippany, New Jersey 07054.
The following table sets forth, as of February 1, 1994, the beneficial
ownership of equity securities of the Company and other GPU System companies
of each of the Company's directors and each of the executive officers named in
the Summary Compensation Table, and of all directors and officers of the
Company as a group. The shares owned by all directors and executive officers
as a group constitute less than 1% of the total shares outstanding.
Title of Amount and Nature of
Name Security Beneficial Ownership(1)
J. R. Leva GPU Common Stock 3,912 shares - Direct
D. Baldassari GPU Common Stock 945 shares - Direct
R. C. Arnold GPU Common Stock 6,751 shares - Direct
C. D. Cudney GPU Common Stock 1,445 shares - Direct
J. G. Graham GPU Common Stock 6,411 shares - Direct
1,780 shares - Indirect
E. J. McCarthy GPU Common Stock 897 shares - Direct
M. P. Morrell GPU Common Stock 1,003 shares - Direct
G. E. Persson GPU Common Stock None
P. H. Preis GPU Common Stock 1,305 shares - Direct
S. C. Van Ness GPU Common Stock None
S. B. Wiley GPU Common Stock None
All Directors and GPU Common Stock 28,658 shares - Direct
Officers as a group 1,780 shares - Indirect
(1) The number of shares owned and the nature of such ownership, not being
within the knowledge of the Company, have been furnished by each
individual.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
None.
-16-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
Metropolitan Edison Company
EXECUTIVE COMPENSATION.
Remuneration of Executive Officers
SUMMARY COMPENSATION TABLE
Long-Term
Annual Compensation Compensation
Other Awards All
Name and Annual Restricted Other
Principal Compen- Stock/Unit Compen-
Position Year Salary Bonus sation(1) Awards(2) sation
J. R. Leva
Chairman and
Chief Executive
Officer (3) (3) (3) (3) (3) (3)
F. D. Hafer 1993 $258,250 $50,000 $ - $41,850 $18,448(4)
President 1992 246,250 40,000 - 41,600 15,968
1991 233,750 36,000 - 34,500 13,664
H. L. Robidoux 1993 $142,750 $20,000 $ - $14,570 $ 5,710(5)
Vice President 1992 137,750 14,500 - 14,300 5,510
1991 133,000 14,500 - 12,650 5,320
D. S. High 1993 $131,750 $16,500 $ - $12,400 $17,427(6)
Vice President 1992 126,750 12,500 - 13,000 12,327
1991 121,500 13,500 - 12,075 7,509
D. L. O'Brien 1993 $124,750 $16,500 $1,161 $12,400 $ 1,187(7)
Comptroller 1992 119,750 12,500 598 13,000 1,137
1991 115,000 13,000 210 10,810 1,105
R. S. Zechman 1993 $118,750 $17,000 $ - $12,400 $ 4,750(8)
Vice President 1992 113,750 12,500 - 12,480 4,550
1991 108,000 12,500 - 10,925 4,320
(1) "Other Annual Compensation" is composed entirely of the above-market
interest accrued on the pre-retirement portion of deferred compensation.
(2) Number and value of aggregate restricted shares/units at the end of 1993
(dividends are paid or accrued on these restricted shares/units and
reinvested):
Aggregate Aggregate
Shares/Units Value
F. D. Hafer 5,550 $142,288
H. L. Robidoux 1,880 $ 48,379
D. S. High 1,705 $ 43,670
D. L. O'Brien 1,630 $ 41,963
R. S. Zechman 1,595 $ 41,115
-17-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
Met-Ed
(3) As noted above, Mr. Leva is Chairman and Chief Executive Officer of the
Company and its affiliates, as well as Chairman and Chief Executive
Officer of GPU and GPUSC. Mr. Leva is compensated by GPUSC for his
overall service on behalf of the GPU System and accordingly is not
compensated directly by the Company for his services. Information with
respect to Mr. Leva's compensation is included on pages 13 through 15 in
GPU's 1994 definitive proxy statement, which are incorporated herein by
reference.
(4) Consists of the Company's matching contributions under the Savings Plan
($9,428), matching contributions under the non-qualified deferred
compensation plan ($780), the imputed interest on employer paid premiums
for split-dollar life insurance ($8,175) and the above-market interest
accrued on the retirement portion of deferred compensation ($65).
(5) Consists of the Company's matching contributions under the Savings Plan
($5,710).
(6) Consists of the Company's matching contributions under the Savings Plan
($4,743) and the above-market interest accrued on the retirement portion
of the deferred compensation ($12,684).
(7) Consists of the Company's matching contributions under the Savings Plan
($1,187).
(8) Consists of the Company's matching contributions under the Savings Plan
($4,750).
<TABLE>
LONG-TERM INCENTIVE PLANS - AWARDS IN LAST FISCAL YEAR
<CAPTION>
Performance Estimated future payouts under
Number of or other non-stock price based plans(1)
shares, period until
units or maturation Target
Name other rights or payout ($ or #)
<S> <C> <C> <C>
F. D. Hafer 1,350 5 years $29,177
H. L. Robidoux 470 5 years $10,158
D. S. High 400 5 years
$ 8,645
D. L. O'Brien 400 5 years $ 8,645
R. S. Zechman 400 5 years $ 8,645
-18-
<PAGE>
<FN>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
Met-Ed
(1) The 1990 Stock Plan for Employees of General Public Utilities Corporation
and Subsidiaries also provides for a Performance Cash Incentive Award in the
event that the annualized GPU Total Shareholder Return exceeds the
annualized Industry Total Return (Edison Electric Institute's Investor-Owned
Electric Utility Index) for the period between the award and vesting dates.
These payments are designed to compensate recipients of restricted
stock/unit awards for the amount of federal and state income taxes that will
be payable upon the restricted stock/units that are vesting for the
recipient. The amount is computed by multiplying the applicable gross-up
percentage by the amount of gross income the recipient recognizes for
federal income tax purposes when the restrictions lapse. The estimated
amounts above are computed based on the number of restricted units awarded
for 1993 multiplied by the 1993 year-end market value of $30.875. Actual
payments would be based on the market value of GPU common stock at the time
the restrictions lapse and may be different from those indicated above.
Proposed Remuneration of Executive Officers
No executive officer of the Company has an employment contract with the
Company. The compensation of the Company's executive officers is determined from
time to time by the Board of Directors of the Company.
Retirement Plans
The GPU System pension plans provide for pension benefits, payable for
life after retirement, based upon years of creditable service with the GPU
System and the employee's career average compensation as defined below. Under
federal law, an employee's pension benefits that may be paid from a qualified
trust under a qualified pension plan such as the GPU System plans are subject
to certain maximum amounts. The GPU System companies also have adopted non-
qualified plans providing that the portion of a participant's pension benefits
which, by reason of such limitations or source, cannot be paid from such a
qualified trust shall be paid directly on an unfunded basis by the
participant's employer.
The following table illustrates the amount of aggregate annual pension
from funded and unfunded sources resulting from employer contributions to the
qualified trust and direct payments payable upon retirement in 1994 (computed
on a single life annuity basis) to persons in specified salary and years of
service classifications:
</FN>
</TABLE>
<TABLE>
ESTIMATED ANNUAL RETIREMENT BENEFITS
BASED UPON CAREER AVERAGE COMPENSATION (2), (3), (4)
(1994 Retirement)
<CAPTION>
Career
Average
Compen- 15 Years 20 Years 25 Years 30 Years 35 Years 40 Years
sation(1) of Service of Service of Service of Service of Service of Service
<S> <C> <C> <C> <C> <C> <C>
$150,000 $ 44,114 $ 58,819 $ 73,524 $ 88,229 $102,934 $116,556
200,000 59,114 78,819 98,524 118,229 137,934 156,156
250,000 74,114 98,819 123,524 148,229 172,934 195,756
300,000 89,114 118,819 148,524 178,229 207,934 235,356
350,000 104,114 138,819 173,524 208,229 242,934 274,956
400,000 119,114 158,819 198,524 238,229 277,934 314,556
</TABLE>
-19-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
Met-Ed
(1) Career Average Compensation is the average annual compensation received
from January 1, 1984 to retirement and includes Base Salary, Deferred
Compensation and Incentive Compensation Plan awards. The career average
compensation amounts for the following named executive officers differ
by more than 10% from the three-year average annual average compensation
set forth in the Summary Compensation Table and are as follows: Messrs.
Hafer - $225,708; Robidoux - $130,008; High - $114,447; O'Brien -
$111,950; and Zechman $96,816.
(2) Years of Creditable Service: Messrs. Hafer - 31 years; Robidoux - 37
years; High - 35 years; O'Brien - 21 years; and Zechman - 24 years.
(3) Based on an assumed retirement at age 65 in 1994. To reduce the above
amounts to reflect a retirement benefit assuming a continual annuity to
a surviving spouse equal to 50% of the annuity payable at retirement,
multiply the above benefits by 90%. The estimated annual benefits are
not subject to any reduction for Social Security benefits or other
offset amounts.
(4) Annual retirement benefit cannot exceed 55% of the average compensation
received during the last three years prior to retirement.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
All of the Company's 859,500 outstanding shares of common stock are
owned beneficially and of record by the Company's parent, General Public
Utilities Corporation, 100 Interpace Parkway, Parsippany, New Jersey 07054.
The following table sets forth, as of February 1, 1994, the beneficial
ownership of equity securities of the Company and other GPU System companies
of each of the Company's directors and each of the executive officers named in
the Summary Compensation Table, and for all directors and officers of the
Company as a group. The shares owned by all directors and executive officers
as a group constitute less than 1% of the total shares outstanding.
Amount and Nature of
Name Title of Security Beneficial Ownership (1)
J. R. Leva GPU Common Stock 3,912 shares-Direct
100 shares-Indirect
J. G. Graham GPU Common Stock 6,411 shares-Direct
1,680 shares-Indirect
F. D. Hafer GPU Common Stock 4,184 shares-Direct
109 shares-Indirect
H. L. Robidoux GPU Common Stock 1,014 shares-Direct
D. S. High GPU Common Stock 949 shares-Direct
D. L. O'Brien GPU Common Stock 861 shares-Direct
R. S. Zechman GPU Common Stock 838 shares-Direct
R. J. Toole GPU Common Stock 1,707 shares-Direct
R. C. Arnold GPU Common Stock 6,751 shares-Direct
All Directors and GPU Common Stock 26,627 shares-Direct
Officers as a 1,889 shares-Indirect
Group
_______________________
(1) The number of shares and the nature of such ownership, not being within
the knowledge of the Company, have been furnished by each individual.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
None.
-20-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III.
<TABLE>
Pennsylvania Electric Company
EXECUTIVE COMPENSATION.
Remuneration of Executive Officers
SUMMARY COMPENSATION TABLE
Annual Compensation Long-Term
<CAPTION> Compensation
Awards
Other
Name and Annual Restricted All Other
Principal Compen- Stock/Unit Compens-
Position Year Salary Bonus sation(1) Awards(2) sation
<C> <C> <C> <C> <C> <C> <C>
James R. Leva (3) (3) (3) (3) (3) (3)
Chairman and Chief
Executive Officer
Robert L. Wise 1993 $278,250 $67,000 $ - $43,710 $28,753(4)
President 1992 266,250 55,000 - 42,900 21,311
1991 251,250 54,000 - 46,000 14,514
John G. Herbein 1993 142,200 25,900 - 15,190 15,338(5)
Vice President - 1992 136,500 22,100 743 15,340 10,507
Generation 1991 130,250 22,200 417 14,260 7,201
Willard R. Stinson 1993 133,247 23,400 - 13,950 7,594(6)
Vice President and 1992 128,175 20,000 - 13,780 6,691
Comptroller 1991 123,150 20,000 - 11,730 5,804
George R. Repko 1993 129,100 24,200 - 13,330 5,164(7)
Vice President - 1992 120,900 19,200 - 13,520 4,836
Customer Operations 1991 116,100 19,600 - 11,270 4,644
Thomas N. Elston 1993 116,425 20,600 - 11,470 6,107(8)
Vice President - 1992 112,200 16,300 - 11,700 5,453
Human Resources 1991 108,150 16,300 - 11,500 8,053
</TABLE>
(1) "Other Annual Compensation" is composed entirely of the above-market
interest accrued on the pre-retirement portion of deferred compensation.
(2) Number and value of aggregate restricted shares/units at the end of 1993
(dividends are paid or accrued on these restricted shares/units and
reinvested):
Aggregate Shares/Units Aggregate Value
Robert L. Wise 6,260 $159,160
John G. Herbein 1,990 $ 51,206
Willard R. Stinson 1,770 $ 45,655
George R. Repko 1,710 $ 44,094
Thomas N. Elston 1,570 $ 40,201
<PAGE>
-21-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III
Penelec
(3) As noted above, Mr. Leva is Chairman and Chief Executive Officer of the
Company and its affiliates, as well as Chairman and Chief Executive
Officer of GPU and GPUSC. Mr. Leva is compensated by GPUSC for his
overall service on behalf of the GPU System and accordingly is not
compensated directly by the Company for his services. Information with
respect to Mr. Leva's compensation is included on pages 13 through 15 in
GPU's 1994 definitive proxy statement, which are incorporated herein by
reference.
(4) Consists of the Company's matching contributions under the Savings Plan
($9,434), matching contributions under the non-qualified deferred
compensation plan ($1,696), the imputed interest on employer paid
premiums for split-dollar life insurance ($5,286), and above-market
interest accrued on the retirement portion of deferred compensation
($12,337).
(5) Consists of the Company's matching contributions under the Savings Plan
($4,368) and above-market interest accrued on the retirement portion of
deferred compensation ($10,970).
(6) Consists of the Company's matching contributions under the Savings Plan
($5,330) and above-market interest accrued on the retirement portion of
deferred compensation ($2,264).
(7) Consists of the Company's matching contributions under the Savings Plan.
(8) Consists of the Company's matching contributions under the Savings Plan
($4,657) and above-market interest accrued on the retirement portion of
deferred compensation ($1,450).
<TABLE>
LONG-TERM INCENTIVE PLANS - AWARDS IN LAST FISCAL YEAR
<CAPTION>
Estimated future payouts
Number of Performance or under non-stock price
shares, units other period based plans (1)
or other until maturation
Name rights or payout Target ($ or #)
<S> <C> <C> <C>
Robert L. Wise 1,410 5 years $30,474
John G. Herbein 490 5 years $10,590
Willard R. Stinson 450 5 years $ 9,726
George R. Repko 430 5 years $ 9,293
Thomas N. Elston 370 5 years $ 7,997
-22-
<PAGE>
<FN>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III
Penelec
(1) The 1990 Stock Plan for Employees of General Public Utilities Corporation
and Subsidiaries also provides for a Performance Cash Incentive Award in
the event that the annualized GPU Total Shareholder Return exceeds the
annualized Industry Total Return (Edison Electric Institute's Investor-
Owned Electric Utility Index) for the period between the award and
vesting dates. These payments are designed to compensate recipients of
restricted stock/unit awards for the amount of federal and state income
taxes that will be payable upon the restricted stock/units that are
vesting for the recipient. The amount is computed by multiplying the
applicable gross-up percentage by the amount of gross income the
recipient recognizes for federal income tax purposes when the
restrictions lapse. The estimated amounts above are computed based on
the number of restricted units awarded for 1993 multiplied by the 1993
year-end market value of $30.875. Actual payments would be based on the
market value of GPU common stock at the time the restrictions lapse and
may be different from those indicated above.
Proposed Remuneration of Executive Officers
No executive officer has an employment contract with the Company. The
compensation of the Company's executive officers is determined from time to time
by the Board of Directors.
Retirement Plans
The GPU System pension plans provide for pension benefits, payable for life
after retirement, based upon years of creditable service with the GPU System and
the employee's career average annual compensation as defined below. Under federal
law, an employee's pension benefits that may be paid from a qualified trust under
a qualified pension plan such as the GPU System plans are subject to certain
maximum amounts. The GPU System companies also have adopted non-qualified plans
providing that the portion of a participant's pension benefits which, by reason of
such limitations or source, cannot be paid from such a qualified trust shall be
paid directly on an unfunded basis by the participant's employer.
The following table illustrates the amount of aggregate annual pension from
funded and unfunded sources resulting from employer contributions to the qualified
trust and direct payments payable upon retirement in 1994 (computed on a single
life annuity basis) to persons in specified salary and years of service
classifications:
</FN>
</TABLE>
-23-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III
Penelec
<TABLE>
ESTIMATED ANNUAL RETIREMENT BENEFITS
BASED UPON CAREER AVERAGE COMPENSATION(2) (3) (4)
(1994 Retirement)
<CAPTION>
Career
Average 10 Years 15 Years 20 Years 25 Years 30 Years 35 Years 40 years
Compensation(1)of Service of Service of Service of Service of Service of Service of Service
<S> <C> <C> <C> <C> <C> <C> <C>
$ 50,000 $ 9,410 $ 14,114 $ 18,819 $ 23,524 $ 28,229 $ 32,934 $ 37,356
100,000 19,410 29,114 38,819 48,524 58,229 67,934 76,956
150,000 29,410 44,114 58,819 73,524 88,229 102,934 116,556
200,000 39,410 59,114 78,819 98,524 118,229 137,934 156,156
250,000 49,410 74,114 98,819 123,524 148,229 172,934 195,756
300,000 59,410 89,114 118,819 148,524 178,229 207,934 235,356
350,000 69,410 104,114 138,819 173,524 208,229 242,934 274,956
400,000 79,410 119,114 158,819 198,524 238,229 277,934 314,556
450,000 89,410 134,114 178,819 223,524 268,229 312,934 354,156
500,000 99,410 149,114 198,819 248,524 298,229 347,934 393,756
</TABLE>
(1) Career Average Compensation is the average annual compensation received
from January 1, 1984 to retirement and includes Base Salary, Deferred
Compensation and Incentive Compensation Plan awards. The career average
compensation amounts for the following named executive officers differ
by more than 10% from the three year average annual compensation set
forth in the Summary Compensation Table and are as follows: Messrs.
Wise - $222,558; Herbein - $129,293; Stinson - $122,510; Repko -
$115,419; and Elston -$98,455.
(2) Years of Creditable Service: Messrs. Wise - 30 years; Herbein -
28 years; Stinson - 15 years; Repko - 27 years; and Elston - 25 years.
(3) Based on an assumed retirement at age 65 in 1994. To reduce the above
amounts to reflect a retirement benefit assuming a continual annuity to
a surviving spouse equal to 50 percent of the annuity payable at
retirement, multiply the above benefits by 90 percent. The estimated
annual benefits are not subject to any reduction for Social Security
benefits or other offset amounts.
(4) Annual retirement benefit cannot exceed 55 percent of the average
compensation received during the last three years prior to retirement.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
All of the Company's 5,290,596 outstanding shares of common stock are
owned beneficially and of record by the Company's parent, General Public
Utilities Corporation, 100 Interpace Parkway, Parsippany, New Jersey 07054.
-24-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued): Exhibit F-1
Part III
Penelec
The following table sets forth, as of February 1, 1994, the beneficial
ownership of equity securities of the Company and other GPU System companies
of each of the Company's directors, each of the named executive officers in
the Summary Compensation Table and all directors and officers of the Company
as a group. The shares owned by all directors and officers as a group
constitute less than one percent of the total shares outstanding.
Amount and Nature of
Name Title of Security Beneficial Ownership
R. C. Arnold GPU Common Stock 6,751 shares-Direct
J. G. Graham GPU Common Stock 6,411 shares-Direct
1,780 shares-Indirect
J. G. Herbein GPU Common Stock 1,071 shares-Direct
J. R. Leva GPU Common Stock 3,912 shares-Direct
100 shares-Indirect
G. R. Repko GPU Common Stock 897 shares-Direct
W. R. Stinson GPU Common Stock 1,132 shares-Direct
R. L. Wise GPU Common Stock 5,092 shares-Direct
All Directors
and Officers
as a Group GPU Common Stock 29,174 shares-Direct
1,880 shares-Indirect
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
None.
-25-
<PAGE>
<TABLE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
<CAPTION>
Energy
Initiatives
and Subsidiary Eliminations Elmwood Camchino
Companies and Energy Energy Energy NCP Energy
Consolidated Adjustments Initiatives Corporation Corporation Inc.
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and temporary cash
investments $ 772 $ 770 $ 1
Accounts receivable:
Affiliates - $ 19,931 7,725 $ 5,905 $ 2,508 580
Other 2,434 784 (128) 76 1,272
Deferred income taxes 492 457 35
Prepayments
3,082 3,080 2
Total current assets 6,780 19,931 12,816 5,812 2,584 1,855
Deferred Debits & Other Assets:
Deferred income taxes 2,006 1,137 645
Investments 115,538 88,942 123,107 4,825 38,375
Other 5,376 300 5,076
Total deferred debits &
other assets
122,920 88,942 124,244 5,470 300 43,451
Total Assets $129,700 $108,873 $137,060 $11,282 $ 2,884 $45,306
-1-
</TABLE>
<PAGE>
<TABLE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
<CAPTION>
Armstrong Geddes EI Canada
Energy Cogeneration EI Selkirk EI Fuels Holding
Corporation Corporation Inc. Inc. Limited, Inc.
<S> <C> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and temporary cash investments $ - $ 1 $ - $ -
Accounts receivable:
Affiliates 3,144 $ 69
Other 454 (24)
Deferred income taxes
Prepayments
Total current assets - 3,599 45 - -
Deferred Debits & Other Assets:
Deferred income taxes 224
Investments 1 17,261 20,909 1 1
Other
Total deferred debits & other assets
1 17,485 20,909 1 1
Total Assets $ 1 $21,084 $20,954 $ 1 $ 1
-2-
</TABLE>
<PAGE>
<TABLE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
<CAPTION>
Energy
Initiatives
and Subsidiary Eliminations Elmwood Camchino
Companies and Energy Energy Energy NCP Energy
Consolidated Adjustments Initiatives Corporation Corporation Inc.
<S> <C> <C> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock $ 100 $ 13 $ 100 $ 10
Capital surplus 126,380 93,150 126,380 4,205 $ 6,800 $44,937
Retained earnings
(8,301) (4,221) (8,301) 1,733 (6,244) (1,013)
Total capitalization
118,179 88,942 118,179 5,948 556 43,924
Current Liabilities:
Accounts payable:
Affiliates - 19,931 12,406 2,566 2,328 931
Other 2,823 1,948 27 821
Taxes accrued -
Other
504 504
Total current liabilities 3,327 19,931 14,858 2,593 2,328 1,752
Deferred Credits and Other Liabilities:
Deferred income taxes 5,842 3,965 1,084 (370)
Other
2,352 58 1,657
Total deferred credits
& other liabilities
8,194 - 4,023 2,741 - (370)
Total Liabilities and Capital $129,700 $108,873 $137,060 $11,282 $ 2,884 $45,306
-3-
</TABLE>
<PAGE>
<TABLE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
Armstrong Geddes EI Canada
Energy Cogeneration EI Selkirk EI Fuels Holding
Corporation Corporation Inc. Inc. Limited, Inc.
<S> <C> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock $ 1 $ 1 $ 1
Capital surplus $16,299 $20,909
Retained earnings
1,278 25
Total capitalization 1 17,577 20,934 1 1
Current Liabilities:
Accounts payable:
Affiliates 1,700
Other 7 20
Taxes accrued
Other
Total current liabilities - 1,707 20 - -
Deferred Credits and Other Liabilities:
Deferred income taxes 1,163
Other 637
Total deferred credits & other liabilities - 1,800 - - -
Total Liabilities and Capital $ 1 $21,084 $20,954 1 $ 1
-4-
</TABLE>
<PAGE>
<TABLE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Energy
Initiatives
and Subsidiary Eliminations Elmwood Camchino
Companies and Energy Energy Energy NCP Energy
Consolidated Adjustments Initiatives Corporation Corporation Inc.
<S> <C> <C> <C> <C> <C> <C>
Operating Revenues $ 4,695 $ 1,582 $ 411 $ 543 $ 898
Equity in Earnings of Subsidiaries (1,014) $ 588 108 947 (1,915)
Operating Expenses:
Other operation and maintenance 8,574 6,818 144 405 647
Depreciation and amortization 370 370
Total operating expenses 8,944 - 7,188 144 405 647
Operating Income Before Income Taxes (5,263) 588 (5,498) 1,214 138 (1,664)
Income Taxes
(1,624) (1,897) 423 61 (649)
Operating Income (3,639) 588 (3,601) 791 77 (1,015)
Other Income and Deductions:
Other income / (expense), net 518 479 37 2
Income taxes
-
Total other income and deductions
518 - 479 - 37 2
Income Before Interest Charges (3,121) 588 (3,122) 791 114 (1,013)
Interest Charges:
Other interest 15 14 1
Net Income $(3,136) $ 588 $(3,136) $ 790 $ 114 $(1,013)
-5-
</TABLE>
<PAGE>
<TABLE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Armstrong Geddes EI Canada
Energy Cogeneration EI Selkirk EI Fuels Holding
Corporation Corporation Inc. Inc. Limited, Inc.
<S> <C> <C> <C> <C> <C>
Operating Revenues $ - $1,261 $ - $ -
Equity in Earnings of Subsidiaries 365 $ 69
Operating Expenses:
Other operation and maintenance 540 20
Depreciation and amortization
Total operating expenses
540 20
Operating Income Before Income Taxes 1,086 49
Income Taxes
414 24
Operating Income 672 25
Other Income and Deductions:
Other income / (expense), net
Income taxes
Total other income and deductions
- -
Income Before Interest Charges 672 25
Interest Charges:
Other interest
Net Income $
- $ 672 $ 25 $ - $ -
-6-
</TABLE>
<PAGE>
<TABLE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Energy
Initiatives
and Subsidiary Eliminations Elmwood Camchino
Companies and Energy Energy Energy NCP Energy
Consolidated Adjustments Initiatives Corporation Corporation Inc.
<S> <C> <C> <C> <C> <C> <C>
Balance at beginning of year $(12,482) $(6,000) $(13,673) $ 943 $(6,358) $ -
Add - Net income (3,136) 588 (3,136) 790 114 (1,013)
- Other adjustment - FAS 115 adjustment 7,317 7,317
- Other adjustment - transfer General
Portfolios Corporation retained
earnings to Energy Initiatives - 1,191 1,191
Deduct - Cash dividends declared
on common stock -
Balance at end of year $ (8,301) $(4,221) $ (8,301) $1,733 $(6,244) $(1,013)
-7-
</TABLE>
<PAGE>
<TABLE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Armstrong Geddes EI Canada
Energy Cogeneration EI Selkirk EI Fuels Holding
Corporation Corporation Inc. Inc. Limited, Inc.
<S> <C> <C> <C> <C> <C>
Balance at beginning of year $ - $ 606 $ - $ - $ -
Add - Net income 672 25
- Other adjustment - FAS 115 adjustment
- Other adjustment - transfer General
Portfolios Corporationn retained
earnings to Energy Initiatives
Deduct - Cash dividends declared on common stock
Balance at end of year $
- $1,278 $ 25 $ - $ -
-8-
</TABLE>
<PAGE>
<TABLE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Energy
Initiatives
and Subsidiary Eliminations Elmwood Camchino
Companies and Energy Energy Energy NCP Energy
Consolidated Adjustments Initiatives Corporation Corporation Inc.
<S> <C> <C> <C> <C> <C> <C>
Operating Activities:
Net income $ (3,136) $ 588 $ (3,136) $ 790 $ 114 $ (1,013)
Adjustments to reconcile income to
cash provided:
Equity in earnings of subsidiaries - (588) (588)
Depreciation and amortization 370 370
Deferred income taxes and investment
tax credits, net (244) (377) (48) (371)
Changes in working capital:
Receivables (343) (581) 206 30 (1,272)
Special deposits and prepayments (3,050) (3,050)
Payables and accrued liabilities 2,028 1,175 4 821
Due to/from affiliates (14) 2,315 (31) (377) 351
Other, net (1,404) 506 (1,032) (417
Net cash required by
operating activities (5,793) - (3,366) (111) (233) (1,901)
Investing Activities:
Purchase of investments (73,835) (67,248) (78,507) (40,291)
Other, net (245) 2,499 (2,744)
Net cash used for investing
activities (74,080) (67,248) (76,008) - - (43,035)
Financing Activities:
Dividends paid on common stock - Internal -
Cash contributions from parent 74,864 67,248 74,864 44,937
Net cash provided by financing
activities 74,864 67,248 74,864 - - 44,937
Net increase (decrease) in cash and temporary
cash investments from above activities (5,009) - (4,510) (111) (233) 1
Cash and temporary cash investments,
beginning of year 5,781 - 5,280 111 233 -
Cash and temporary cash investments,
end of year $ 772 $ - $ 770 $ - $ - $ 1
Supplemental Disclosure:
Income taxes paid (refunded) $ (1,493) $ (1,154) $ 265 $ 71 $ (100)
-9-
</TABLE>
<PAGE>
<TABLE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Armstrong Geddes EI Canada
Energy Cogeneration EI Selkirk EI Fuels Holding
Corporation Corporation Inc. Inc. Limited, Inc.
<S> <C> <C> <C> <C> <C>
Operating Activities:
Net income $ - $ 672 $ 25 $ - $ -
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries
Depreciation and amortization
Deferred income taxes and investment
tax credits, net 552
Changes in working capital:
Receivables 1,250 24
Special deposits and prepayments
Payables and accrued liabilities 8 20
Due to/from affiliates (2,203) (69)
Other, net (392) (69)
Net cash required by operating activities - (113) (69) - -
Investing Activities:
Purchase of investments (1,445) (20,840)
Other, net
Net cash used for investing activities - (1,445) (20,840) - -
Financing Activities:
Dividends paid on common stock - Internal
Cash contributions from parent 1,402 20,909
Net cash provided by financing activities - 1,402 20,909 - -
Net increase (decrease) in cash and temporary cash
investments from above activities - (156) - - -
Cash and temporary cash investments, beginning of year - 157 - - -
Cash and temporary cash investments, end of year $ - $ 1 $ - $ - $ -
Supplemental Disclosure:
Income taxes paid (refunded) $ (575)
-10-
</TABLE>
<PAGE>
<TABLE>
OLS Power Limited Partnership Exhibit F-2
Consolidating Balance Sheet
December 31, 1994
<CAPTION>
OLS Power OLS
Limited Eliminations Power OLS
Partnership and Limited Acquisition OLS Energy- OLS Energy- OLS Energy-
Consolidated Adjustments Partnership Corporation Berkeley Chino Camarillo
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash $ 8,912 $ 875 $ 8,037
Restricted investments 2,891,706 $ 794,135 $ 1,928,779 $ 168,792
Accounts receivable:
Customers, net 4,325,789 1,563,391 1,387,272 1,375,126
Affiliates $ 405,196 31,250 8,008 56,657 166,117 143,164
Other
Notes receivable 300,000 300,000
Prepayments 604,631 156,480 237,001 211,150
Deferred taxes 1,314,628 421,996 494,300 398,332
Inventory 257,918 194,464 62,905 549
Total current assets 9,403,584 705,196 332,125 16,045 3,187,123 4,276,374 2,297,113
Deferred Debits and Other Assets:
Equipment under capital
lease, net 71,544,421 24,901,058 23,769,720 22,873,643
Leasehold improvements, net 763,138 196,077 330,054 237,007
Goodwill, net 1,899,415 1,214,545 684,870
Investments (8,448,590) (4,241,028) (4,207,562)
Total deferred debits
and other assets 74,206,974 (8,448,590) (4,241,028) (4,207,562) 25,097,135 25,314,319 23,795,520
Total Assets $83,610 558 $(7,743,394) $(3,908,903) $(4,191,517) $28,284,258 $29,590,693 $26,092,633
Note: Included in the Financial Statements of Camchino Energy Corporation.
-11-
</TABLE>
<PAGE>
<TABLE>
OLS Power Limited Partnership Exhibit F-2
Consolidating Balance Sheet
December 31, 1994
<CAPTION>
OLS Power OLS
Limited Eliminations Power OLS
Partnership and Limited Acquisition OLS Energy- OLS Energy- OLS Energy-
Consolidated Adjustments Partnership Corporation Berkeley Chino Camarillo
<S> <C> <C> <C> <C> <C> <C> <C>
LIABILITIES & EQUITY
Current Liabilities:
Accounts payable:
Trade $ 2,674,426 $ 26 691 $ 1,410,116 $ 621,181 $ 616 438
Affiliates $ 405,193 $ 50,085 243,692 57 383 54,033
Other 67,550 (3,200) 30,250 20,250 20,250
Accrued overhaul 5,653,138 2,173,211 1,844,193 1,635,734
Accrued property taxes 83 845 (162,951) 232,295 14,501
Obligation under capital lease 2,896,144 980,910 958,339 956,895
Income taxes payable 18,254 (574) (133,764) 40,649 111,943
Other accrued liabilities 505,880 180,880 225,000 100,000
Total current liabilities 11,899,237 405,193 23,491 49,511 4,722,344 3,999,290 3,509,794
Noncurrent Liabilities:
Obligation under capital lease 74,453,685 25,748,706 24,715,055 23,989,924
Notes payable 448,499 448,499
Notes payable - affiliates 300,000 300,000 300,000 150,000 150,000
Other accrued liabilities 555,000 185,000 185,000 185,000
Deferred tax liability 186,531 186,531
Total noncurrent liabilities 75,943,715 300,000 300,000 - 26,120,237 25,050,055 24,773,423
Stockholder's Equity:
Capital stock 3,000 1,000 1,000 1,000
Additional paid-in capital 12,800,000 26,750,000 12,800,000 13,379,000 3,983,815 4,567,534 4,819,651
Retained earnings (17,032,394) (35,201,587) (17 032,394) (17,620,028) (6,543,138) (4,027,186) (7,011,235)
Total stockholder's equity (4,232,394) (8,448,587) (4,232,394) (4,241,028) (2,558,323) 541,348 (2,190,584)
Total Liabilities & Equity $83,610,558 $(7,743,394) $(3,908,903) $(4,191,517) $28,284,258 $29,590 693 $26,092,633
-12-
</TABLE>
<PAGE>
<TABLE>
OLS Power Limited Partnership Exhibit F-2
Consolidating Statements of Income and Accumulated Deficits
For the Year Ended December 31, 1994
<CAPTION>
OLS Power OLS
Limited Eliminations Power OLS
Partnership and Limited Acquisition OLS Energy- OLS Energy- OLS Energy-
Consolidated Adjustments Partnership Corporation Berkeley Chino Camarillo
<S> <C> <C> <C> <C> <C> <C> <C>
Operating Revenues:
Electricity $ 29,652,940 $ 8,750,756 $10,469,752 $10,432,432
Steam 4,777,964 3,633,114 748,842 396,008
Total operating revenues 34,430,904 12,383,870 11,218,594 10,828,440
Operating Expenses:
Fuel 14,582,701 5,359,432 4,693,693 4,529,576
Operations & maintenance 6,469,082 2,536,098 1,927,753 2,005,231
Other operating expenses 3,816,166 $ (2) $ 14,989 $ 1,550 1,510,361 1,133,179 1,156,085
Amortization expense 5,542,669 3,413,614 1,095,833 1,033,222
Total operating expenses 30,410,618 (2) 14,989 1,550 12,819,505 8,850,458 8,724,114
Operating income 4,020,286 2 (14,989) (1,550) (435,635) 2,368,136 2,104,326
Other Income and Expense:
Interest income 169,929 30,000 30,000 41,006 83,722 45,201
Interest expense (7,340,592) (30,000) (46,790) (182) (2,197,726) (2,571,860) (2,554,034)
Investment income (loss) - (6,842,839) (3,420,826) (3,422,013)
Total other income
and expense (7,170,663) (6,842,839) (3,437,616) (3,422,195) (2,156,720) (2,488,138) (2,508,833)
Income (loss) before income
taxes (3,150 377) (6,842,837) (3,452,605) (3,423,745) (2,592,355) (120,002) (404,507)
Income tax expense (benefit) 302,228 (2,919) 622,737 (6 106) (311,484)
Net income (loss) (3,452,605) (6,842,837) (3,452,605) (3,420,826) (3,215,092) (113,896) (93,023)
Accumulated deficits at
beginning of year (13,579,789) (28,358,750) (13,579,789) (14,199,202) (3,328,046) (3,913,290) (6,918,212)
Accumulated deficits at end
of year $(17,032,394) $(35,201,587) $(17,032,394) $(17,620,028) $(6,543,138) $(4,027,186) $(7,011,235)
-13-
</TABLE>
<PAGE>
<TABLE>
OLS Power Limited Partnership Exhibit F-2
Consolidated Statement of Cash Flows
For the Year Ended December 31, 1994
<CAPTION>
OLS Power OLS
Limited Eliminations Power OLS
Partnership and Limited Acquisition OLS Energy- OLS Energy- OLS Energy-
Consolidated Adjustments Partnership Corporation Berkeley Chino Camarillo
<S> <C> <C> <C> <C> <C> <C> <C>
Operating Activities:
Net income (loss) $(3,452,605) $ (6,842,837) $(3,452,605) $(3,420 826) $(3,215,092) $ (113,896) $ (93,023)
Adjustments to reconcile income
to cash provided:
Write off of goodwill 2,135,893 2,135,893
Amortization 3,406,776 1,277,721 1,095,833 1,033,222
Accrued decommissioning
costs 111,000 37,000 37,000 37,000
Accrued overhaul expense 1,800,000 600,000 600,000 600,000
Deferred taxes (245,462) 511,885 (438,077) (319,270)
Investment loss -
OLS acquisition 3,420,824 3,420,824
Investment loss - OLS Energy 3,422,013 3,422,013
Changes in working capital:
Receivables, net 1,097,416 356,198 369,230 684,108 400,276
Other current assets (85,767) (19,387) (28,017) (38,363)
Payables and accrued liabilities (2,201,051) (356,198) 11,093 (2,975) (1,247,932) (141,723) (1,175,712)
Net restricted cash - operating
activities 2,566,200 - (20,688) (1,788) 449,318 1,695,228 444,130
Payments to restricted investments (2,588,676) - - (449,318) (1,695,228) (444,130)
Net cash required by
operating activities (22,476) - (20,688) (1,788) - - -
Investing Activities:
Leasehold improvements (305,191) 81,027 (249,165) (137,053)
Net restricted cash - investing
activities (305,191) 81,027 (249,165) (137,053)
Payments to restricted investments 305,191 (81,027) 249,165 137,053
Net cash provided by
investing activities - - - -
Financing Activities:
Decrease in lease obligation
resulting from payments (944,486) (484,105) (460,381)
Increase (decrease) in notes
payable (413,230) (203,639) (209,591)
Net restricted cash -
financing activities (1,357,716) (203,639) (484,105) (669,972)
Payments from restricted
investments 1,357,716 203,639 484,105 669,972
Net cash required by
financing activities - - - -
Net decrease in unrestricted cash
from above activities (22,476) - (20,688) (1,788) - - -
Unrestricted cash, beginning of year 31,388 - 21,563 9,825 - - -
Unrestricted cash, end of year $ 8,912 $ - $ 875 $ 8,037 $ - $ - $ -
Supplemental Disclosure:
Income taxes paid (refunded) $ 533 $ (113) $ (272) $ 486 $ 432
-14-
</TABLE>
<PAGE>
<TABLE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
<CAPTION>
NCP Energy
and Subsidiary Eliminations
Companies and NCP Energy NCP Ada NCP Dade
Consolidated Adjustments Inc. Power,Inc. Inc.
<S> <C> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and temporary cash investments $ 1 $ 1
Accounts receivable:
Affiliates 580 $ 179 $ 135
Other 1,272 817 92 79
Deferred income taxes 2 2
Total current assets 1,855 820 271 214
Deferred Debits & Other Assets:
Investments & other 43,451 $66,977 44,318 3,819 458
Total Assets $45,306 $66,977 $45,138 $4,090 $ 672
-15-
</TABLE>
<PAGE>
<TABLE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
<CAPTION>
Dade Lake
NCP Pasco NCP Lake NCP Gem Investment Investment,
Inc. Power, Inc. Inc. L.P. L.P.
<S> <C> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and temporary cash investments
Accounts receivable:
Affiliates $ 266
Other $ 67 55 $ 162
Deferred income taxes
Total current assets 67 321 162
Deferred Debits & Other Assets:
Investments & other
22,782 151 7,904 $23,012 $7,984
Total Assets $22,849 $ 472 $ 8,066 $23,012 $7,984
-16-
</TABLE>
<PAGE>
<TABLE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
<CAPTION>
NCP Energy
and Subsidiary Eliminations
Companies and NCP Energy NCP Ada NCP Dade
Consolidated Adjustments Inc. Power,Inc. Inc.
<S> <C> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Capital surplus $44,937 $70,067 $44,937 $3,916 $ 359
Retained earnings
(1,013) (3,090) (1,013) 31 (15)
Total capitalization
43,924 66,977 43,924 3,947 344
Current Liabilities:
Accounts payable:
Affiliates 931 585 138 133
Other
821 629 192
Total current liabilities 1,752 - 1,214 138 325
Deferred Credits and Other Liabilities:
Deferred income taxes (370) - - 5 3
Total Liabilities and Capital $45,306 $66,977 $45,138 $4,090 $ 672
-17-
</TABLE>
<PAGE>
<TABLE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
<CAPTION>
Dade Lake
NCP Pasco NCP Lake NCP Gem Investment Investment,
Inc. Power, Inc. Inc. L.P. L.P.
<S> <C> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Capital surplus $23,775 $ 291 $ 8,811 $24,015 $8,900
Retained earnings
(645) (17) (524) (1,003) (917)
Total capitalization
23,130 274 8,287 23,012 7,983
Current Liabilities:
Accounts payable:
Affiliates (343) 213 205
Other
Total current liabilities (343) 213 205 - -
Deferred Credits and Other Liabilities:
Deferred income taxes
62 (15) (426) - 1
Total Liabilities and Capital $22,849 $ 472 $ 8,066 $23,012 $7,984
-18-
</TABLE>
<PAGE>
<TABLE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statements of Income and Accumulated Earnings
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
NCP Energy
and Subsidiary Eliminations
Companies and NCP Energy NCP Ada NCP Dade
Consolidated Adjustments Inc. Power,Inc. Inc.
<S> <C> <C> <C> <C> <C>
Operating Revenues $ 898 $ 425 $ 179 $ 99
Operating Expenses:
Other operation and maintenance 647 182 118 151
Depreciation and amortization
-
Total operating expenses
647 182 118 151
Operating Income Before Income Taxes 251 243 61 (52)
Income Taxes
(649) 85 16 (8)
Operating Income
900 158 45 (44)
Other Income and Deductions:
Other income / (expense), net (1,913) $(3,090) (1,171) (14) 29
Income taxes
-
Total other income and deductions
(1,913) (3,090) (1,171) (14) 29
Income Before Interest Charges
(1,013) (3,090) (1,013) 31 (15)
Interest Charges:
Other interest - - - - -
Net Income (Loss) (1,013) (3,090) (1,013) 31 (15)
Accumulated earnings at beginning of year
- - - - -
Accumulated earnings (losses) at end of year $(1,013) $(3,090) $(1,013) $ 31 $ (15)
-19-
</TABLE>
<PAGE>
<TABLE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statements of Income and Accumulated Earnings
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Dade Lake
NCP Pasco NCP Lake NCP Gem Investment Investment,
Inc. Power, Inc. Inc. L.P. L.P.
<S> <C> <C> <C> <C> <C>
Operating Revenues $ 195
Operating Expenses:
Other operation and maintenance 196
Depreciation and amortization
Total operating expenses 196
Operating Income Before Income Taxes (1)
Income Taxes $ (347) (12) $ (383)
Operating Income 347 11 383
Other Income and Deductions:
Other income / (expense), net (992) (28) (907) $(1,003) $ (917)
Income taxes
Total other income and deductions (992) (28) (907) (1,003) (917)
Income Before Interest Charges (645) (17) (524) (1,003) (917)
Interest Charges:
Other interest - - - - -
Net Income (Loss) (645) (17) (524) (1,003) (917)
Accumulated earnings at beginning of year
- - - - -
Accumulated earnings (losses) at end of year $ (645) $ (17) $ (524) $(1,003) $ (917)
-20-
</TABLE>
<PAGE>
<TABLE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
NCP Energy
and Subsidiary Eliminations
Companies and NCP Energy NCP Ada NCP Dade
Consolidated Adjustments Inc. Power,Inc. Inc.
<S> <C> <C> <C> <C> <C>
Operating Activities:
Net income (loss) $ (1,013) $ (3,090) $ (1,013) $ 31 $ (15)
Adjustments to reconcile income
to cash provided:
Deferred income taxes and
investment tax credits, net (371) 5 3
Changes in working capital:
Receivables (1,272) (817) (92) (79)
Payables and accrued liabilities 821 629 192
Due to/from affiliates 351 585 (41) (2)
Other, net (417) (2,331) 16 (39)
Net cash provided (required)
by operating activities (1,901) (3,090) (2,947) (81) 60
Investing Activities:
Purchase of investments (40,291) (66,977) (39,245) (3,835) (419)
Other, net (2,744) (2,744)
Net cash used for
investing activities (43,035) (66,977) (41,989) (3,835) (419)
Financing Activities:
Cash contributions from parent 44,937 70,067 44,937 3,916 359
Net cash provided by
financing activities 44,937 70,067 44,937 3,916 359
Net increase in cash and temporary cash
investments from above activities 1 - 1 - -
Cash and temporary cash investments,
beginning of year - - - - -
Cash and temporary cash investments,
end of year $ 1 $ - $ 1 $ - $ -
Supplemental Disclosure:
Income taxes paid (refunded) $ (100) $ 50 $ 20 $ (36)
-21-
</TABLE>
<PAGE>
<TABLE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Dade Lake
NCP Pasco NCP Lake NCP Gem Investment Investment,
Inc. Power, Inc. Inc. L.P. L.P.
<S> <C> <C> <C> <C> <C>
Operating Activities:
Net income (loss) $ (645) $ (17) $ (524) $ (1,003) $ (917)
Adjustments to reconcile income to cash provided:
Deferred income taxes and investment
tax credits, net 62 (15) (426)
Changes in working capital:
Receivables (67) (55) (162)
Payables and accrued liabilities
Due to/from affiliates (343) (53) 205
Other, net 19 1,002 916
Net cash provided (required) by
operating activities (993) (121) (907) (1) (1)
Investing Activities:
Purchase of investments (22,782) (170) (7,904) (24,014) (8,899)
Other, net
Net cash used for investing activities (22,782) (170) (7,904) (24,014) (8,899)
Financing Activities:
Cash contributions from parent 23,775 291 8,811 24,015 8,900
Net cash provided by financing activities 23,775 291 8,811 24,015 8,900
Net increase in cash and temporary cash
investments from above activities - - - - -
Cash and temporary cash investments, beginning of year - - - - -
Cash and temporary cash investments, end of year $ - $ - $ - $ - $ -
Supplemental Disclosure:
Income taxes paid (refunded) $ (324) $ 19 $ 171
-22-
</TABLE>
<PAGE>
<TABLE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
<CAPTION>
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan Met-Ed York Haven
Companies and Edison Preferred Power
Consolidated Adjustments Company Capital, Inc. Company
<S> <C> <C> <C> <C> <C>
ASSETS
Utility Plant:
In service, at original cost $2,137,996 $2,123,623 $14,373
Less, accumulated depreciation 700,746 696,025 4,721
Net utility plant in service 1,437,250 1,427,598 9,652
Construction work in progress 105,035 103,550 1,485
Other 37,275 37,275
Net utility plant 1,579,560 1,568,423 11,137
Other Property and Investments:
Common stock of subsidiaries - $ 25,903 (A) 25,903
Nuclear decommissioning trusts 65,100 65,100
Other, net 9,567 9,567
Total other property and investments 74,667 25,903 100,570
Current Assets:
Cash and temporary cash investments 9,246 8,709 $ 1 536
Special deposits 1,896 1,896
Accounts receivable:
Customers, net 53,421 53,421
Other 16,736 115,405 (B) 16,619 113,686 1,836
Unbilled revenues 25,112 25,112
Materials & supplies, at average cost or less:
Construction & maintenance 39,365 39,365
Fuel 16,843 16,843
Deferred income taxes 4,720 4,720
Prepayments 7,522 7,522
Total current assets 174,861 115,405 174,207 113,687 2,372
Deferred Debits & Other Assets:
Three Mile Island Unit 2 deferred costs 5,534 5,534
Deferred income taxes 149,892 149,860 32
Income taxes recoverable through future rates 201,679 201,400 279
Other 50,086 3,561 (C) 53,647
Total deferred debits & other assets 407,191 3,561 410,441 - 311
Total Assets $2,236,279 $144,869 $2,253,641 $113,687 $13,820
The notes to the consolidated financial statements of Met-Ed, which are incorporated by reference from the annual report on
Form 10-K for the year ended December 31, 1994, are an integral part of the consolidating financial statements.
-23-
</TABLE>
<PAGE>
<TABLE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
<CAPTION>
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan Met-Ed York Haven
Companies and Edison Preferred Power
Consolidated Adjustments Company Capital, Inc. Company
<S> <C> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock $ 66,273 $ 1,164 (A) $ 66,273 $ 1 $ 1,163
Capital surplus 341,616 19,846 (A,C) 345,200 13,402 2,860
Retained earnings 190,742 8,454 (A,C) 190,719 150 8,327
Total common stockholder's equity 598,631 29,464 602,192 13,553 12,350
Cumulative preferred stock 23,598 23,598
Preferred securities of subsidiary 100,000 100,000
Long term debt 529,783 103,093 (B) 632,876
Total capitalization 1,252,012 132,557 1,258,666 113,553 12,350
Current Liabilities:
Debt due within one year 40,517 40,517
Notes payable
Obligations under capital leases 33,810 33,810
Accounts payable 110,632 12,312 (B) 122,944
Taxes accrued 40,435 40,124 134 177
Deferred energy credits 1,950 1,950
Interest accrued 19,006 19,006
Other 21,636 21,636
Total current liabilities 267,986 12,312 279,987 134 177
Deferred Credits and Other Liabilities:
Deferred income taxes 371,841 370,642 1,199
Unamortized investment tax credits 35,470 35,416 54
Three Mile Island Unit 2 future costs 170,593 170,593
Other 138,377 138,337 40
Total deferred credits
& other liabilities 716,281 - 714,988 - 1,293
Total Liabilities and Capital $2,236,279 $144,869 $2,253,641 $113,687 $13,820
The notes to the consolidated financial statements of Met-Ed, which are incorporated by reference from the annual report on
Form 10-K for the year ended December 31, 1994, are an integral part of the consolidating financial statements.
-24-
</TABLE>
<PAGE>
<TABLE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan Met-Ed York Haven
Companies and Edison Preferred Power
Consolidated Adjustments Company Capital, Inc. Company
<S> <C> <C> <C> <C> <C>
Operating Revenues $801,303 $6,350 (D) $801,216 $6,437
Equity in Earnings of Subsidiaries - 1,276 (E) 1,276
Operating Expenses:
Fuel 94,260 94,260
Power purchased and interchanged:
Affiliates 17,834 6,350 (D) 24,184
Other 162,693 162,693
Deferral of energy costs, net (15,518) (15,518)
Other operation and maintenance 258,656 254,720 3,936
Depreciation and amortization 86,063 85,560 503
Taxes, other than income taxes 51,817 51,481 336
Total operating expenses 655,805 6,350 657,380 4,775
Operating Income Before Income Taxes 145,498 1,276 145,112 1,662
Income Taxes 34,002 (134)(F) 33,123 745
Operating Income 111,496 1,410 111,989 917
Other Income and Deductions:
Allowance for other funds used
during construction 1,978 1,873 105
Other income / (expense), net (98,953) 3,583 (G) (98,958) $3,583 5
Income taxes 42,748 (134)(F) 42,748 (134)
Total other income and deductions (54,227) 3,449 (54,337) 3,449 110
Income Before Interest Charges and
Dividends on Preferred Securities 57,269 4,859 57,652 3,449 1,027
Interest Charges and Dividends
on Preferred Securities:
Interest on long term debt 43,270 43,270
Other interest 11,937 3,606 (G) 15,543
Allowance for borrowed funds used
during construction (1,869) (1,869)
Dividends on preferred securities
of subsidiary 3,200 3,200
Total interest charges and dividends
on preferred securities 56,538 3,606 56,944 3,200 -
Net Income $ 731 $1,253 $ 708 $ 249 $1,027
The notes to the consolidated financial statements of Met-Ed, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1994, are an integral part of the consolidating financial statements.
-25-
</TABLE>
<PAGE>
<TABLE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan Met-Ed York Haven
Companies and Edison Preferred Power
Consolidated Adjustments Company Capital, Inc. Company
<S> <C> <C> <C> <C> <C>
Balance at beginning of year $229,677 $7,300 (A) $229,677 $ - $7,300
Add - Net income 731 1,253 (A) 708 249 1,027
Deduct - Cash dividends declared on common stock 35,000 99 (A) 35,000 99
- Cash dividends on cumulative preferred stock 2,960 2,960
- Other adjustments, net 1,706 1,706
Balance at end of year $190,742 $8,454 $190,719 $150 $8,327
The notes to the consolidated financial statements of Met-Ed, which are incorporated by reference from the annual report on
Form 10-K for the year ended December 31, 1994, are an integral part of the consolidating financial statements.
-26-
</TABLE>
<PAGE>
<TABLE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan
Companies and Edison
Consolidated Adjustments Company
<S> <C> <C> <C>
Operating Activities:
Income before preferred stock dividends $ 731 $ 1,253 $ 708
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries - (1,276) (1,276)
Depreciation and amortization 80,501 80,096
Amortization of property under capital leases 14,795 14,795
Three Mile Island Unit 2 costs 127,640 127,640
Voluntary enhanced retirement program 35,246 35,246
Nuclear outage maintenance costs, net 5,895 5,895
Deferred income taxes and investment tax credits, net (53,993) (54,234)
Deferred energy costs, net (15,518) (15,518)
Accretion income (1,114) (1,114)
Allowance for other funds used during construction (1,978) (1,873)
Changes in working capital:
Receivables 6,714 6,888
Materials and supplies 944 944
Special deposits and prepayments (4,593) (4,593)
Payables and accrued liabilities 33,606 33,299
Due to/from affiliates (6,458) (4,703)
Other, net 7,753 23 4,508
Net cash provided (required) by operating activities 230,171 - 226,708
Investing Activities:
Cash construction expenditures (159,717) (159,724)
Contributions to decommissioning trusts (10,633) (10,633)
Other, net 79 79
Net cash used for investing activities (170,271) - (170,278)
Financing Activities:
Issuance of long-term debt 49,687 49,687
Decrease in notes payable, net (81,600) (81,600)
Retirement of long-term debt (26,016) (26,016)
Capital lease principal payments (15,168) (15,168)
Issuance of preferred securities of subsidiary 96,732
Advances to/from affiliates - 103,093
Redemption of preferred stock (36,595) (36,595)
Dividends paid on preferred stock (3,632) (3,632)
Dividends paid on common stock (35,000) (35,000)
Dividends paid on common stock - Internal - 99
Cash contributions to subsidiaries - (3,518)
Net cash provided (required) by financing activities (51,592) - (48,650)
Net increase in cash and temporary cash
investments from above activities 8,308 7,780
Cash and temporary cash investments, beginning of year 938 929
Cash and temporary cash investments, end of year $ 9,246 $ - $ 8,709
Supplemental Disclosure:
Interest paid (net of amount capitalized) $ 77,636 $ 74,436
Income taxes paid $ 15,179 $ 14,674
New capital lease obligations incurred $ 3,126 $ 3,126
The notes to the consolidated financial statements of Met-Ed, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1994, are an integral part of the consolidating financial statements.
-27A-
</TABLE>
<PAGE>
<TABLE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Met-Ed York Haven
Preferred Power
Capital, Inc. Company
<S> <C> <C>
Operating Activities:
Income before preferred stock dividends $ 249 $ 1,027
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries
Depreciation and amortization 405
Amortization of property under capital leases
Three Mile Island Unit 2 costs
Voluntary enhanced retirement program
Nuclear outage maintenance costs, net
Deferred income taxes and investment tax credits, net 241
Deferred energy costs, net
Accretion income
Allowance for other funds used during construction (105)
Changes in working capital:
Receivables (174)
Materials and supplies
Special deposits and prepayments
Payables and accrued liabilities 134 173
Due to/from affiliates (283) (1,472)
Other, net 3,268
Net cash provided (required) by operating activities 3,368 95
Investing Activities:
Cash construction expenditures 7
Contributions to decommissioning trusts
Other, net
Net cash used for investing activities - 7
Financing Activities:
Issuance of long-term debt
Decrease in notes payable, net
Retirement of long-term debt
Capital lease principal payments
Issuance of preferred securities of subsidiary 96,732
Advances to/from affiliates (103,093)
Redemption of preferred stock
Dividends paid on preferred stock
Dividends paid on common stock
Dividends paid on common stock - Internal (99)
Cash contributions to subsidiaries 3,093 425
Net cash provided (required) by financing activities (3,367) 425
Net increase in cash and temporary cash
investments from above activities 1 527
Cash and temporary cash investments, beginning of year - 9
Cash and temporary cash investments, end of year $ 1 $ 536
Supplemental Disclosure:
Interest paid (net of amount capitalized) $ 3,200
Income taxes paid $ 505
New capital lease obligations incurred
The notes to the consolidated financial statements of Met-Ed, which are incorporated by reference from the annual
report on Form 10-K for the year ended December 31, 1994, are an integral part of the consolidating financial statements.
-27B-
</TABLE>
<PAGE>
<TABLE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
<CAPTION>
Pennsylvania
Electric Company Waverly
and Subsidiary Eliminations Pennsylvania Penelec Nineveh Electric Light
Companies and Electric Preferred Water and Power
Consolidated Adjustments Company Capital, Inc. Company Company
<S> <C> <C> <C>
ASSETS
Utility Plant:
In service, at original cost $2,549,316 $2,548,269 $1,032 $15
Less, accumulated depreciation 927,498 927,283 215
Net utility plant in service 1,621,818 1,620,986 817 15
Construction work in progress 98,329 98,329
Other 27,717 27,717
Net utility plant 1,747,864 1,747,032 817 15
Other Property and Investments:
Common stock of subsidiaries - $ 15,728 (A) 15,728
Nuclear decommissioning trusts 29,871 29,871
Other, net 4,596 4,596
Total other property and investments 34,467 15,728 50,195
Current Assets:
Cash and temporary cash investments 1,191 461 $ 1 729
Special deposits 3,242 3,242
Accounts receivable:
Customers, net 68,547 68,547
Other 21,897 119,448 (B) 21,874 119,448 23
Unbilled revenues 29,181 29,181
Materials & supplies, at average cost or less:
Construction & maintenance 49,342 49,342
Fuel 20,092 20,092
Deferred energy costs 10,826 10,826
Deferred income taxes 3,157 3,157
Prepayments 4,726 4,726
Total current assets 212,201 119,448 211,448 119,449 752
Deferred Debits & Other Assets:
Three Mile Island Unit 2 deferred costs 13,214 13,214
Deferred income taxes 114,231 114,231
Income taxes recoverable through
future rates 227,177 227,177
Other 31,900 3,784 (C) 35,684
Total deferred debits & other assets 386,522 3,784 390,306 - - -
Total Assets $2,381,054 $138,960 $2,398,981 $119,449 $1,569 $15
The notes to the consolidated financial statements of Penelec, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1994, are an integral part of the consolidating financial statements.
-28-
</TABLE>
<PAGE>
<TABLE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1994
(In Thousands)
<CAPTION>
Pennsylvania
Electric Company Waverly
and Subsidiary Eliminations Pennsylvania Penelec Nineveh Electric Light
Companies and Electric Preferred Water and Power
Consolidated Adjustments Company Capital, Inc. Company Company
<S> <C> <C> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock $ 105,812 $ 17 (A) $ 105,812 $ 1 $ 1 $15
Capital surplus 261,671 19,254 (A,C) 265,486 14,072 1,367
Retained earnings
290,786 287 (A,C) 290,755 196 122
Total common stockholder's
equity 658,269 19,558 662,053 14,269 1,490 15
Cumulative preferred stock 36,777 36,777
Preferred securities of subsidiary 105,000 105,000
Long term debt
616,490 108,248 (B) 724,738
Total capitalization
1,416,536 127,806 1,423,568 119,269 1,490 15
Current Liabilities:
Debt due within one year 9 9
Notes payable 111,052 111,052
Obligations under capital leases 17,957 17,957
Accounts payable 73,310 11,200 (B) 84,510
Taxes accrued 13,347 13,153 180 14
Interest accrued 16,356 16,356
Other 25,315 25,315
Total current liabilities 257,346 11,200 268,352 180 14
Deferred Credits and Other Liabilities:
Deferred income taxes 454,026 454,001 25
Unamortized investment tax credits 47,864 47,824 40
Three Mile Island Unit 2
future costs 85,273 85,273
Other 120,009 (46)(A) 119,963
Total deferred credits
& other liabilities 707,172 (46) 707,061 - 65 -
Total Liabilities and Capital $2,381,054 $138,960 $2,398,981 $119,449 $1,569 $15
The notes to the consolidated financial statements of Penelec, which are incorporated by reference from the annual report on
Form 10-K for the year ended December 31, 1994, are an integral part of the consolidating financial statements.
-29-
</TABLE>
<PAGE>
<TABLE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Pennsylvania
Electric Company Waverly
and Subsidiary Eliminations Pennsylvania Penelec Nineveh Electric Light
Companies and Electric Preferred Water and Power
Consolidated Adjustments Company Capital, Inc. Company Company
<S> <C> <C> <C> <C> <C> <C>
Operating Revenues $944,744 $944,744 $ -
Equity in Earnings of Subsidiaries
- $ 343 (D) 343
Operating Expenses:
Fuel 175,071 175,071
Power purchased and interchanged:
Affiliates 6,310 6,310
Other 151,919 151,919
Deferral of energy costs, net 5,941 5,941
Other operation and maintenance 294,316 294,316
Depreciation and amortization 76,600 76,588 $ 12
Taxes, other than income taxes 66,058 66,048 10
Total operating expenses 776,215 776,193 22
Operating Income Before Income Taxes 168,529 343 168,894 (22)
Income Taxes 42,297 (180)(E) 42,132 (15)
Operating Income 126,232 523 126,762 (7)
Other Income and Deductions:
Allowance for other funds used
during construction 1,841 1,841
Other income/(expense), net (71,287) 5,014 (F) (71,308) $5,007 28
Income taxes 31,369 (180)(E) 31,381 (180) (12)
Total other income
and deductions (38,077) 4,834 (38,086) 4,827 16
Income Before Interest Charges and
Dividends on Preferred Securities 88,155 5,357 88,676 4,827 9
Interest Charges and Dividends
on Preferred Securities:
Interest on long term debt 46,439 46,439
Other interest 7,421 5,045 (F) 12,465 1
Allowance for borrowed funds used
during construction (1,996) (1,996)
Dividends on preferred securities
of subsidiary 4,492 4,492
Total interest charges and divi-
dends on preferred securities 56,356 5,045 56,908 4,492 1
Net Income $ 31,799 $ 312 $ 31,768 $ 335 $ 8 $ -
The notes to the consolidated financial statements of Penelec, which are incorporated by reference from the annual report on
Form 10-K for the year ended December 31, 1994, are an integral part of the consolidating financial statements.
-30-
</TABLE>
<PAGE>
<TABLE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Pennsylvania
Electric Company Waverly
and Subsidiary Eliminations Pennsylvania Penelec Nineveh Electric Light
Companies and Electric Preferred Water and Power
Consolidated Adjustments Company Capital, Inc. Company Company
<S> <C> <C> <C> <C> <C> <C>
Balance at beginning of year $328,290 $114 (A) $328,290 $ - $114 $ -
Add - Net income 31,799 312 (A) 31,768 335 8
Deduct - Cash dividends declared
on common stock 65,000 139 (A) 65,000 139
- Cash dividends on
cumulative preferred stock 2,937 2,937
- Other adjustments, net 1,366 1,366
Balance at end of year $290,786 $287 $290,755 $196 $122 $ -
The notes to the consolidated financial statements of Penelec, which are incorporated by reference from the annual
report on Form 10-K for the year ended December 31, 1994, are an integral part of the consolidating financial statements.
-31-
</TABLE>
<PAGE>
<TABLE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Pennsylvania
Electric Company
and Subsidiary Eliminations Pennsylvania
Companies and Electric
Consolidated Adjustments Company
<S> <C> <C> <C>
Operating Activities:
Income before preferred stock dividends $ 31,799 $ 312 $ 31,768
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries - (343) (343)
Depreciation and amortization 69,615 69,603
Amortization of property under capital leases 8,553 8,553
Three Mile Island Unit 2 costs 56,304 56,304
Voluntary enhanced retirement program 44,856 44,856
Nuclear outage maintenance costs, net 2,862 2,862
Deferred income taxes and investment tax credits, net (50,451) (50,450)
Deferred energy costs, net 6,221 6,221
Accretion income (200) (200)
Allowance for other funds used during construction (1,842) (1,842)
Changes in working capital:
Receivables (15,909) (15,920)
Materials and supplies (1,849) (1,849)
Special deposits and prepayments 1,644 1,644
Payables and accrued liabilities (10,962) (11,149)
Due to/from affiliates (1,878) (1,503)
Other, net 12,803 31 9,019
Net cash provided by operating activities 151,566 - 147,574
Investing Activities:
Cash construction expenditures (174,464) (174,464)
Contributions to decommissioning trusts (5,705) (5,705)
Other, net 134 134
Net cash used for investing activities (180,035) - (180,035)
Financing Activities:
Issuance of long-term debt 129,100 129,100
Increase in notes payable, net 8,774 8,774
Retirement of long-term debt (108,008) (108,008)
Capital lease principal payments (8,734) (8,734)
Issuance of preferred securities of subsidiary 101,185
Advances to/from affiliates - 108,248
Redemption of preferred stock (26,168) (26,168)
Dividends paid on preferred stock (3,111) (3,111)
Dividends paid on common stock (65,000) (65,000)
Dividends paid on common stock - Internal - 139
Cash contributions to subsidiaries - (3,248)
Net cash provided (required) by financing activities 28,038 - 31,992
Net increase (decrease) in cash and temporary cash
investments from above activities (431) (469)
Cash and temporary cash investments, beginning of year 1,622 930
Cash and temporary cash investments, end of year $ 1,191 $ - $ 461
Supplemental Disclosure:
Interest paid (net of amount capitalized) $ 55,221 $ 50,729
Income taxes paid $ 59,881 $ 59,892
New capital lease obligations incurred $ 2,400 $ 2,400
The notes to the consolidated financial statements of Penelec, which are incorporated by reference from the annual
report on Form 10-K for the year ended December 31, 1994, are an integral part of the consolidating financial statements.
-32A-
</TABLE>
<PAGE>
<TABLE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1994
(In Thousands)
<CAPTION>
Waverly
Penelec Nineveh Electric Light
Preferred Water and Power
Capital, Inc. Company Company
<S> <C> <C> <C>
Operating Activities:
Income before preferred stock dividends $ 335 $ 8 $ -
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries
Depreciation and amortization 12
Amortization of property under capital leases
Three Mile Island Unit 2 costs
Voluntary enhanced retirement program
Nuclear outage maintenance costs, net
Deferred income taxes and investment tax credits, net (1)
Deferred energy costs, net
Accretion income
Allowance for other funds used during construction
Changes in working capital:
Receivables 11
Materials and supplies
Special deposits and prepayments
Payables and accrued liabilities 180 7
Due to/from affiliates (375)
Other, net 3,815
Net cash provided by operating activities 3,955 37 -
Investing Activities:
Cash construction expenditures
Contributions to decommissioning trusts
Other, net
Net cash used for investing activities - - -
Financing Activities:
Issuance of long-term debt
Increase in notes payable, net
Retirement of long-term debt
Capital lease principal payments
Issuance of preferred securities of subsidiary 101,185
Advances to/from affiliates (108,248)
Redemption of preferred stock
Dividends paid on preferred stock
Dividends paid on common stock
Dividends paid on common stock - Internal (139)
Cash contributions to subsidiaries 3,248
Net cash provided (required) by financing activities (3,954) - -
Net increase (decrease) in cash and temporary cash
investments from above activities 1 37
Cash and temporary cash investments, beginning of year - 692
Cash and temporary cash investments, end of year $ 1 $729 $ -
Supplemental Disclosure:
Interest paid (net of amount capitalized) $ 4,492
Income taxes paid $(11)
New capital lease obligations incurred
The notes to the consolidated financial statements of Penelec, which are incorporated by reference from the annual
report on Form 10-K for the year ended December 31, 1994, are an integral part of the consolidating financial statements.
-32B-
</TABLE>
<PAGE>
Exhibit H-1
Energy Initiatives, Inc.
EWG Organizational Chart
_________________________________
| |
| |
| Energy Initiatives, Inc. |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Canada Holding, Ltd. |
| (EWG) |____________
| | |
|_________________________________| |
| 100% |
| _______|_______
100% | | EI Services |
________________|________________ | Canada, Ltd.|
| | | (EWG) |
| EI Brooklyn Power, Ltd. | |_______________|
| (EWG) |
| |
|_________________________________|
|
|
|
___________|___________
| |
100% | |
________|________ |
| EI Brooklyn | |
| Investment, Ltd.| |
| (EWG) | |
|_________________| |
| |
74% | | 1%
____|_______________________|____
| Brooklyn Energy |
| Limited Partnership |
| (EWG) |
| |
|24 MW facility under construction|
|_________________________________|
-1-
<PAGE>
Exhibit H-2
EI Power, Inc.
EWG Organizational Chart
_________________________________
| |
| EI Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Hanover Energy Corporation |
| (EWG) |
|Inactive |
|_________________________________|
-1-
<PAGE>
Exhibit H-2
EI Power, Inc.
EWG Organizational Chart
_________________________________
| |
| EI Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Power (China), Inc. |
| (EWG) |
|Inactive |
|_________________________________|
-2-
<PAGE>
Exhibit H-2
EI Power, Inc.
EWG Organizational Chart
_________________________________
| |
| EI Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Power (China) I, Inc. |
| (EWG) |
| Inactive |
|_________________________________|
|
|
50% |
________________|________________
| |
| Ming Jiang Power Partners, L.P. |
| (EWG) |
|Inactive |
|_________________________________|
-3-
<PAGE>
Exhibit H-2
EI Power, Inc.
EWG Organizational Chart
_________________________________
| |
| EI Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Power (China) II, Inc. |
| (EWG) |
|Inactive |
|_________________________________|
|
|
50% |
________________|________________
| |
| Nanjing Power Partners, L.P. |
| (EWG) |
|Inactive |
|_________________________________|
-4-
<PAGE>
Exhibit H-2
EI Power, Inc.
EWG Organizational Chart
_________________________________
| |
| EI Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Power (China) III, Inc. |
| (EWG) |
|Inactive |
|_________________________________|
-5-
<PAGE>
Exhibit B-112
AGREEMENT OF LIMITED PARTNERSHIP
OF
LAKE INVESTMENT, L.P.
A DELAWARE LIMITED PARTNERSHIP
NCP Lake Power Incorporated,
as General Partner
NCP Gem Incorporated,
as Limited Partner
Dated as of July 23, 1992<PAGE>
THE LIMITED PARTNERSHIP INTERESTS REFERRED TO HEREIN
("INTERESTS") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER THE
SECURITIES LAWS OF DELAWARE OR ANY OTHER STATE. SUCH INTERESTS
ARE BEING OFFERED AND SOLD UNDER THE EXEMPTION PROVIDED BY
SECTION 4(2) OF THE SECURITIES ACT AND SIMILAR EXEMPTIONS UNDER
APPLICABLE STATE LAW.
A PURCHASER OF ANY INTEREST MUST BE PREPARED TO BEAR THE
ECONOMIC RISK OF THE INVESTMENT FOR AN INDEFINITE PERIOD OF TIME
BECAUSE THE INTERESTS HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OR UNDER APPLICABLE STATE SECURITIES LAWS AND,
THEREFORE, CANNOT BE SOLD UNLESS THEY ARE SUBSEQUENTLY SO
REGISTERED OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
THERE IS NO OBLIGATION OF THE ISSUER TO REGISTER THE INTERESTS
UNDER THE SECURITIES ACT OR APPLICABLE STATE LAW.
ARTICLE XIII OF THE PARTNERSHIP AGREEMENT PROVIDES FOR
FURTHER RESTRICTIONS ON TRANSFER OF THE INTERESTS.
LIMITED PARTNERSHIP AGREEMENT
OF
LAKE INVESTMENT, L.P.,
A DELAWARE LIMITED PARTNERSHIP
THIS LIMITED PARTNERSHIP AGREEMENT (the "Agreement") of
Lake Investment, L.P., a Delaware limited partnership (the
"Partnership"), is made and entered into as of the 23rd day of
July, 1992, by and among NCP Lake Power Incorporated, a Delaware
corporation, as the general partner ("NCP Lake" or the "General
Partner"), and NCP Gem Incorporated, a Delaware corporation, as a
limited partner ("Gem"), and any other limited partner admitted
to the Partnership in accordance with the terms of this
Agreement.<PAGE>
RECITALS
A. Lake Cogen, Ltd., a Florida limited partnership (the
"Project Partnership") was formed by Peoples Cogeneration
Company, a Florida corporation ("Peoples"), as a general partner,
and Gator Gas Marketing, Inc., a Florida corporation ("Gator"),
as a general partner, and Peoples and Gator as limited partners
for the purpose of developing, financing, constructing, owning
(or selling and leasing back) and operating a gas-fired
cogeneration facility as such term is defined in the Public
Utility Regulatory Policies Act of 1978, and the regulations
promulgated thereunder, all as amended ("PURPA"). No written
partnership agreement was entered into, but a Certificate of
Limited Partnership was filed on March 13, 1991. On August 28,
1991, Gator assigned its general partner interest to NCP Lake
Power Incorporated, a Delaware corporation ("NCP Lake" or
"General Partner"), Gator assigned its limited partner interest
to Lake Investment, L.P., a Delaware limited partnership ("LIL")
and Peoples assigned its general partner and limited partner
interests to UMA Power Co., a Florida corporation ("UMA"). On
August 28, 1991, NCP Lake, LIL and UMA entered into an Agreement
of Limited Partnership (the "Prior Agreement"). On September 27,
1991, UMA entered into an agreement dated September 27, 1991,
pursuant to which (i) UMA conveyed all of its right, title and
interest in the Partnership to NCP Lake and LIL and (ii) UMA
withdrew as a general partner and a limited partner of the
Partnership.
B. Pursuant to that certain First Amended and Restated
Agreement of Limited Partnership of Lake Cogen, Ltd., a Florida
limited Partnership, to be dated as of the 24th day of July, 1992
(the "FARALP"), it is contemplated that NCP Lake will be the
managing general partner of the Project Partnership and that the
Partnership will be a limited partner of the Project Partnership.
C. The Certificate of Limited Partnership of the
Partnership was filed in the Office of the Secretary of State of
the State of Delaware on May 23, 1991.
D. The General Partner and the Limited Partner desire to
continue the Partnership on the terms and conditions set forth
herein and to enter into this Agreement to govern the
relationships of the parties hereto.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants set forth herein, the parties agree as follows:
2<PAGE>
ARTICLE I
DEFINITIONS
The capitalized terms used in this Agreement shall have
the meanings set forth herein or in Exhibit C attached hereto.
ARTICLE II
FORMATION OF PARTNERSHIP
Section 2.1 Formation. The General Partner caused the
Certificate to be prepared and to be filed in the Office of the
Secretary of State of the State of Delaware on May 23, 1991. The
General Partner and the Limited Partner hereby ratify and approve
the Certificate, as the Certificate of Limited Partnership of the
Partnership effective as of the date of this Agreement. The
parties hereto acknowledge that the Partnership has been formed
under the Act, and that the Act shall govern the rights and
liabilities of the parties hereto, except as otherwise herein
expressly stated. The General Partner shall be the initial
general partner of the Partnership. The Limited Partner named in
the introductory paragraph of this Agreement shall be the initial
limited partner of the Partnership. The Partners expressly
ratify and approve all prior actions of the Partnership including
but not limited to the entry into the Agreement of Limited
Partnership of Lake Cogen, Ltd. dated as of August 28, 1991.
Section 2.2 Name. The name of the Partnership is "LAKE
INVESTMENT, L.P." The business of the Partnership may be
conducted under any name chosen by the General Partner, in
accordance with the Act, and the General Partner may, in its sole
discretion, change the name of the Partnership from time to time.
The General Partner shall promptly notify the Limited Partners of
any such name change.
Section 2.3 Principal Office. The principal office of the
Partnership shall be located at 1100 Town & Country Road, Suite
800, Orange, California 92668. From time to time, the General
Partner may change the location of such principal office and may
establish such additional offices as the General Partner may deem
advisable, in the General Partner's sole discretion.
Notification of any such change or additional offices shall be
given to the Limited Partners as soon as practicable.
ARTICLE III
FILING OF CERTIFICATES AND OTHER DOCUMENTS
Section 3.1 Additional Filing of Certificates. In addition to
the filing of the Certificate and the amendments to the
Certificate with the Delaware Secretary of State, the General
Partner shall cause the Certificate and the amendments to the
Certificate to be filed in such other places as are or shall be
required by the Operative Documents or by applicable law. The
General Partner
3<PAGE>
shall also cause the Certificate to be amended as and when
required by applicable law, and shall cause to be prepared and
filed in the office of the Delaware Secretary of State and in
such other places as are or shall be required by applicable law
any Certificate of Cancellation required to be filed by
applicable law.
Section 3.2 Filing of Other Documents. From time to time, the
General Partner shall sign, acknowledge, swear, file and publish
any additional certificates, notices, statements or other
instruments, including without limitation, any appropriate
fictitious business name statements, as, when and where required
by any provisions of law governing the formation of the
Partnership or the conduct of its business or to enable the
Partnership to hold Partnership Property in the Partnership's
name.
ARTICLE IV
PURPOSE
Section 4.1 Purpose and Character of Business. The purpose and
character of the business of the Partnership is to act as a
limited partner of, and to hold an equity interest in, the
Project Partnership. The Partnership may do any or all things
that may be necessary, convenient, incidental, or appropriate to
the conduct of the business and the achievement of the purposes
specified above. Without limiting the generality of the
foregoing: (a) the Partnership may borrow money from the General
Partner in its individual capacity, any Affiliate of the General
Partner, any Limited Partner in such Limited Partner's individual
capacity, any Affiliate of any such Limited Partner or any other
third person, and may give security therefor and repay such
loans, and otherwise enter into, perform and discharge contracts,
agreements, instruments and other arrangements with the General
Partner in its individual capacity, any Affiliate of the General
Partner, any Limited Partner in such Limited Partner's individual
capacity, any Affiliate of any such Limited Partner or any third
person, all such transactions and arrangements to be on arms-
length terms; (b) the Partnership may act as guarantor of the
obligations of, or otherwise for the benefit of, the Project
Partnership, and grant one or more security interests in its
interest in the Project Partnership; (c) the Partnership may
loan money to the Project Partnership; and (d) the Partnership
may (i) develop, own, sell, transfer, convey, license, mortgage,
pledge, exchange, exploit or otherwise dispose of or deal with
all of the property of every nature whatsoever of the
Partnership, (ii) incur indebtedness, secured or unsecured, for
any of the purposes of the Partnership, (iii) engage in any
activities in the opinion of the General Partner that are in
furtherance of said purpose and are not prohibited by law and
(iv) execute, deliver and perform all of the Operative Documents
to which it is a party and all such further documents, writings,
agreements, certificates, acknowledgments, applications and
4<PAGE>
instruments incidental thereto, in each case as the same may be
amended, modified, supplemented or replaced from time to time.
5<PAGE>
ARTICLE V
TERM, FISCAL YEAR AND ACCOUNTING METHOD
Section 5.1 Term. The term of the Partnership commenced on May
23, 1991, the date the Certificate was filed in the office of the
Delaware Secretary of State. Unless earlier dissolved pursuant
Section 15.1 hereof or the provisions of the Act, the Partnership
shall be dissolved on December 31, 2040, and the winding up of
the Partnership shall occur on or before December 31, 2041.
Section 5.2 Fiscal Year; Accounting Method. The Partnership's
fiscal year shall be the calendar year, unless otherwise required
by law. The Partnership's books and records shall be maintained
on an accrual basis in accordance with GAAP and tax accounting
methods applicable to the Partnership, unless otherwise required
by law.
ARTICLE VI
CONTRIBUTIONS AND CAPITAL
Section 6.1 Capital Contributions.
(a) Limited Partners. As of the date of this
Agreement, each Limited Partner has contributed to the capital of
the Partnership the net amount set forth opposite such Partner's
name on Exhibit A attached hereto, and such amount has been
credited to such Partner's Capital Account.
(b) General Partner. As of the date of this
Agreement, the General Partner has contributed to the capital of
the Partnership the net amount set forth opposite such Partner's
name on Exhibit A attached hereto, and such amount has been
credited to such Partner's Capital Account.
Section 6.2 Additional Capital Contributions. No Limited
Partner shall be required to make any contributions to the
capital of the Partnership in excess of the Capital Contribution
of such Limited Partner referred to in Section 6.1(a) hereof.
Furthermore, no Limited Partner may make an additional
contribution to the capital of the Partnership without the
consent of the General Partner.
Section 6.3 Withdrawal of Capital. No Partner shall have the
right to withdraw its Capital Contribution or to receive any
return of a portion of its Capital Contribution.
Section 6.4 Interest. Interest earned on funds of the
Partnership shall constitute Partnership property and no Partner
shall be entitled to interest on any Capital Contribution, on any
Capital Account balance or on any undistributed or reinvested
Partnership property.
6<PAGE>
Section 6.5 No Liability for Return of Capital. The General
Partner shall not be personally liable for the return of any
portion of the Capital Contribution of any Limited Partner; the
7<PAGE>
return of such Capital Contribution shall be made solely from
Partnership assets. Under the circumstances requiring a return
of any Capital Contribution, no Partner shall have the right to
demand or receive property other than cash except as may be
specifically provided for in this Agreement.
Section 6.6 No Third Party Rights. Except as each Partner may
otherwise consent with respect to such Partner's own obligations
or rights, the obligations or rights of the Partnership or of
Partners to make or require any Capital Contribution under this
Agreement shall not grant any rights to, or confer any benefits
upon, any Person who is not a Partner unless otherwise required
by applicable law.
ARTICLE VII
DISTRIBUTIONS; ALLOCATION OF PROFITS AND LOSSES
Section 7.1 Distributions. The Partnership intends to make
distributions of Cash Available for Distribution from time to
time (each such distribution a "Distribution") as determined by
the General Partner, subject to the following: (i)
Distributions may be restricted or suspended when the General
Partner determines in its sole and absolute discretion that it is
in the best interest of the Partnership to do so; (ii)
Distributions shall be limited by, or otherwise subject to the
provisions of, the Operative Documents and any other indebtedness
of the Partnership; and (iii) no Distributions shall be made
under this Section 7.1 that would render the Partnership
insolvent or jeopardize or limit the business activities or
prospects of the Partnership. Subject to the foregoing and to
Article XV hereof, Cash Available for Distribution, if any,
shall be distributed to the Partners in proportion to the
Partnership Interest of each Partner.
Section 7.2 Form of Distribution. No Partner shall have any
right to receive any Partnership Property other than cash upon a
Distribution, except as specifically provided in this Agreement.
A Partner shall not be compelled to accept a distribution of
Partnership Property other than cash.
Section 7.3 Allocation of Profits and Losses. The Profits,
Losses and other items of the Partnership shall be allocated
among the Partners as set forth in Exhibit D attached hereto.
ARTICLE VIII
TAX MATTERS
Section 8.1 Considered a Partnership. The Partners intend that,
as defined in Section 7701(a)(2) of the Code, the Partnership
will be treated as a partnership for United States, state and
local income tax purposes. Specifically, each Partner agrees
not to make the election described in Section 761(a) of the Code
to be excluded from the application of the provisions of
Subchapter K. Moreover, each Partner further agrees not to make
an election to be excluded from the application of the
8<PAGE>
partnership provisions of any applicable state taxation code or
statute.
9<PAGE>
Section 8.2 General Partner as Tax Matters Partner. The General
Partner is designated the tax matters partner ("Tax Matters
Partner") as provided in Section 6231(a)(7)(A) of the Code and
any comparable provision of state or local law. Except as
otherwise provided herein, this designation is effective only for
the purpose of activities performed under the Agreement pursuant
to the provisions of the Codes and any comparable provision of
state or local law and shall be subject to the following terms
and conditions:
a. The Tax Matters Partner shall timely file all
necessary Federal, state and local partnership income tax returns
for the Partnership in accordance with Section 8.3 hereof and
shall furnish the Partners with copies of all such returns.
b. The Tax Matters Partner shall keep the Partners
fully and timely informed of all administrative and judicial
proceedings for the adjustment of Partnership items (as defined
in Section 6231(a)(3) of the Code and any comparable provision
of State or local law) at the Partnership level.
c. If notice of an administrative proceeding under
Section 6223 of the Code (or any comparable provision of state or
local law) is received by a Partner, such Partner shall notify
the Tax Matters Partner of the treatment of any Partnership item
on the Partner's income tax return which is or may be
inconsistent with the treatment of that item on the Partnership
return.
d. No Partner shall enter into any settlement
agreement with any taxing authority with respect to any
Partnership item unless and until such Partner shall have first
notified the Tax Matters Partner in writing of the proposed
agreement and its terms at least 30 days prior to entering into
such settlement.
e. The Tax Matters Partner or any Partner shall notify
all Partners of any intention to file a petition with the Tax
Court for a redetermination of any Partnership item within five
(5) business days from the date of the Notice of Final
Partnership Administrative Adjustments.
f. The Tax Matters Partner may enter into one or more
agreements with the Internal Revenue Service with respect to the
tax treatment of any items of Partnership income, loss,
deductions or credits and, to the extent permitted under the
Code, may expressly argue that such agreement or agreements shall
bind all of the Partners.
Section 8.3 Preparation of Tax Returns. The Tax Matters Partner
shall cause the preparation and filing of United States, state
and local income tax returns on behalf of the Partnership. Each
Partner agrees to furnish the Tax Matters Partner such
information as each Partner may have which is required for the
proper and timely preparation of such returns.
10<PAGE>
11<PAGE>
Section 8.4 Elections by Tax Matters Partner. The Tax Matters
Partner shall make the following elections under the Code and
regulations and any similar state and local statutes and
regulations:
a. To adopt the calendar year as the annual accounting
period, unless otherwise required by law;
b. To adopt the accrual method of accounting;
c. To amortize organizational expenditures, if any,
over a sixty (60) month period in accordance with Section 709(b)
of the Code and any similar state statutes; and
d. To make such other elections as the Tax Matters
Partner may deem advisable to reduce Partnership taxable income
to the maximum extent possible and to take deductions in the
earliest taxable year possible in accordance with the Code and
the Treasury Regulations.
Section 8.5 Special Basis Adjustment. In connection with
Distributions or any assignment or transfer of a Partnership
interest permitted by the terms of this Agreement, the General
Partner in its discretion may cause the Partnership, at the
written request of the transferor or the transferee with respect
to a transfer of a Partnership interest, on behalf of the
Partnership and at the time and in the manner provided in the
Regulations, to make an election to adjust the basis of
Partnership Property in the manner provided in Sections 734(b),
743(b) and 754 of the Code. If such election is made with
respect to a transfer of a Partnership interest, the transferee
shall pay all costs incurred by the Partnership in connection
therewith, including, without limitation, reasonable attorneys'
and accountants' fees.
Section 8.6 Survival of Tax Provisions. The provisions of this
Agreement relating to tax matters shall survive the termination
of the Partnership and this Agreement and the termination of any
Partner's interest in the Partnership and shall remain binding on
that Partner for the period of time necessary to resolve with any
Federal, state or local tax authority any tax matters regarding
the Partnership.
ARTICLE IX
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Books and Records. The Partnership's books and
records, together with copies of all of the documents and papers
pertaining to the business of the Partnership and a copy of the
Assignment of Partnership Interests, shall be kept at the
principal place of business of the Partnership and at all
reasonable times upon reasonable notice shall be open to the
inspection of and may be copied and excerpts taken therefrom by
any Partner, or such Partner's duly authorized representative,
12<PAGE>
provided that such inspection is made in good faith and without
any intent to damage
13<PAGE>
the Partnership or any of the Partners. The books and records of
the Partnership shall be kept in accordance with GAAP, and shall
reflect the Partnership transactions and be appropriate and
adequate for the Partnership's business.
Section 9.2 Delivery of Documents. The Partnership shall
provide to each Limited Partner not affiliated with the General
Partner each of the following Partnership documents:
a. Within thirty (30) days after the end of each
fiscal year during which such list has changed, a current list of
the full name and last known business or residence address of
each Partner, specifying separately the General Partner and
Limited Partners; and
b. As soon as practicable, a copy of the Certificate,
and all certificates of amendment thereto and other certificates
filed pursuant to the Act, promptly after the filing thereof,
together with executed copies of any powers of attorney pursuant
to which any such certificate has been executed.
Section 9.3 Reports; Fiscal Year.
a. Annual Reports. Within one hundred twenty (120)
days after the close of each fiscal year, a full and accurate
accounting shall be made of the affairs of the Partnership as of
the close of such fiscal year. Upon such accounting being made,
the Profits or Losses and other items sustained by the
Partnership during such fiscal year shall be ascertained and
credited or debited, as the case may be, in the books of account
of the Partnership to the Partners in the proportions specified
in this Agreement. The financial statements in such annual
report shall include a balance sheet, an income statement and a
statement of changes in financial position and shall be
accompanied by either the reports prepared by independent
accountants engaged by the Partnership pursuant to Section 9.6
hereof.
b. Semi-annual Reports. The General Partner shall
prepare and forward to the Limited Partners semi-annual unaudited
financial information summarizing the results of operations of
the Partnership's business for the six months then ended as soon
as reasonably practicable after the end of each such period, the
form and extent of which shall be in the sole discretion of the
General Partner.
Section 9.4 Tax Returns. The General Partner shall send to each
Limited Partner, within one hundred twenty (120) days after the
end of each tax year, the information necessary for such Limited
Partner to complete its Federal and state income tax or
information returns. The General Partner shall also send to the
Limited Partners, within one hundred twenty (120) days after the
end of each tax year, a complete copy of the Partnership's
Federal, state, and local income tax or information returns for
the year.
14<PAGE>
15<PAGE>
Section 9.5 Bank Accounts. All funds of the Partnership shall
be deposited in the name of the Partnership in such bank accounts
or other accounts, including, in the sole discretion of the
General Partner, money market funds or other short term
investments, as shall be determined by the General Partner.
All withdrawals therefrom shall be made upon checks signed on
behalf of the Partnership by any officer of the General Partner
or by any Person or Persons authorized by the General Partner to
sign checks on behalf of the Partnership.
Section 9.6 Annual Audit. The partnership accountants
("Partnership Accountants") shall be Deloitte & Touche or another
firm of independent certified public accountants of recognized
national standing selected by the General Partner. The
Partnership Accountants shall audit the Partnership's books and
records each year.
ARTICLE X
COMPENSATION AND REIMBURSEMENT OF GENERAL PARTNER
Section 10.1 Compensation. The General Partner shall not be
paid any management fee or other compensation for the discharge
of its duties as General Partner; provided, however, that the
General Partner may be compensated, in its individual capacity,
pursuant to any contract, agreement or other arrangement entered
into pursuant to Section 4.1 hereof.
Section 10.2 Reimbursement of Expenses. All business expenses,
costs (including appropriate corporate overhead), fees, and other
outlays advanced, paid or otherwise incurred by the General
Partner in connection with the formation of the Partnership, the
conduct of its business and operations (including the
Partnership's investment in the Project Partnership) or its
dissolution and liquidation shall be reimbursed by the
Partnership. Any requested reimbursement shall be paid to the
General Partner at all times upon demand before any distribution
to the Partners shall be made pursuant to Section 7.3 hereof.
ARTICLE XI
RIGHTS AND OBLIGATIONS OF THE GENERAL PARTNER
Section 11.1 Management of the Partnership.
a. Control in General Partner. The General Partner
shall have full and exclusive control of the management and
operation of the business of the Partnership and shall make all
business judgments, determinations and decisions affecting the
affairs of the Partnership except as otherwise specifically
provided herein. The General Partner shall have, subject to any
limitations imposed elsewhere in this Agreement, the power and
authority on behalf of the Partnership to do or cause to be done
any and all acts deemed by the General Partner to be necessary or
appropriate in connection with the management and operation of
the business of the Partnership, including, without limitation,
the power and
16<PAGE>
authority on behalf of the Partnership to: (i) cause the
Partnership to borrow money from the General Partner in its
individual capacity or from any Affiliate of the General Partner,
any Limited Partner in such Limited Partner's individual
capacity, any Affiliate of any such Limited Partner or any other
Person, and to give security therefor and to repay such loans,
and otherwise to enter into, perform and discharge contracts,
agreements, instruments and other arrangements with the General
Partner in its individual capacity or any Affiliate thereof, or
any Limited Partner in such Limited Partner's individual
capacity, or any Affiliate of any such Limited Partner or any
other Person, all such transactions and arrangements to be on
arms-length terms and otherwise upon such terms and conditions as
the General Partner, in its discretion, determines; (ii) sell
all or substantially all of the assets of the Partnership with
the consent of a Majority in Interest of the Limited Partners or
pledge all or substantially all of the assets of the Partnership
without such consent; (iii) cause the Partnership to carry such
insurance as the General Partner deems to be appropriate and
adequate to protect the General Partner as provided in Section
11.4 hereof; (iv) submit any Partnership claim or liability to
arbitration or reference; (v) change the Partnership
Accountants; (vi) execute, acknowledge (if appropriate) and
deliver any and all instruments to effect any and all of the
foregoing; (vii) execute, deliver and perform all of the
Operative Documents to which it is a party and all such further
documents, writings, agreements, certificates, acknowledgments,
applications and instruments incidental thereto, in each case as
the same may be amended, modified, supplemented or replaced from
time to time; and (viii) execute, acknowledge (if appropriate)
and file or record such applications, notices, certifications and
other documents with such Federal, state or local governmental
agencies as may be necessary or appropriate in connection with
the Partnership's investment in the Project Partnership. In
connection with the foregoing, it is agreed that any instrument,
agreement or other document executed by the General Partner while
acting in the name and on behalf of the Partnership shall be
deemed to be an action of the Partnership as to any third parties
(including each Limited Partner as a third party for such
purposes).
b. The General Partner shall take or cause to be taken
all actions that the General Partner reasonably and in good faith
deems to be necessary or appropriate for carrying out the
purposes of the Partnership in accordance with the terms and
provisions of this Agreement and the requirements of applicable
laws and regulations and for continuing the Partnership,s valid
existence as a limited partnership under the laws of the State of
Delaware. The General Partner shall have the right, on behalf
of the Partnership, to designate irrevocably or otherwise one or
more Persons an attorney-in-fact to act on behalf of the
Partnership. Nothing in this Agreement shall preclude the
engagement, at the expense of the Partnership, of any agent or
Person, to manage or provide other services in respect of the
Partnership, subject to the control of the General Partner.
17<PAGE>
18<PAGE>
Section 11.2 Devotion of Time and Other Business. The General
Partner shall devote to the Partnership's affairs such time, on a
nonexclusive basis, as is necessary to perform its duties as
General Partner hereunder. The General Partner shall use
judgment in causing its officers diligently to pursue and apply
their general skills, time and effort to the General Partner's
duties to the extent reasonably necessary to manage the affairs
of the Partnership. Nevertheless, the officers of the General
Partner shall not be required to devote their full time to
Partnership affairs, except to the extent necessary from time to
time for the proper performance of its duties hereunder, and may
engage in other businesses, including businesses identical or
similar to the Partnership's business. Without limiting the
foregoing, the General Partner shall be permitted to serve as the
managing general partner of the Project Partnership. Neither
the General Partner nor any of its shareholders, officers or
directors shall be obligated to present any particular investment
opportunity to the Partnership, even if the opportunity is of a
character which, if presented to the Partnership, could be taken
by the Partnership. The General Partner and its shareholders,
officers or directors shall have the right to take for their own
account, or to recommend to others, any investment opportunity
without liability to the Partnership or the Limited Partners.
Section 11.3 Exculpation. Neither the General Partner nor any
of its shareholders, officers, directors, representatives or
agents shall be liable, responsible or accountable in damages or
otherwise to the Partnership or any Limited Partner, individually
or collectively, for any loss, liability, damage or expense
incurred by reason of any act or omission performed or omitted by
such Person either on behalf of the Partnership or in furtherance
of the interests of the Partnership, and in a manner believed in
good faith by such Person to be within the scope of the authority
granted to the General Partner by this Agreement or by law, so
long as such Person is not determined by a final adjudication of
a court of competent jurisdiction to be guilty of gross
negligence or gross misconduct with respect to such act or
omission.
Section 11.4 Indemnification. The General Partner and its
direct and indirect shareholders, officers, directors,
representatives and agents shall be held harmless and be
indemnified by the Partnership for any liability, loss
(including amounts paid in settlement), damages or expenses
(including reasonable attorneys' fees) suffered by virtue of any
acts or omissions or alleged acts or omissions arising out of
such Person's activities either on behalf of the Partnership or
in furtherance of the interests of the Partnership, and in a
manner believed in good faith by such Person to be within the
scope of authority conferred on the General Partner by this
Agreement or law, so long as such Person is not determined by a
final adjudication of a court of competent jurisdiction to be
guilty of gross negligence or gross misconduct with respect to
such acts or omissions. Such indemnification or agreement to
hold harmless shall only be recoverable out of the assets of the
19<PAGE>
Partnership, including insurance proceeds, if any, and not from
the
20<PAGE>
Limited Partners. The General Partner and each director of the
General Partner shall have the right (and no other Person shall
have the right) to select its own attorney, if it makes a
reasonable showing that the Partnership attorney cannot
adequately represent its interest. The Partnership shall pay
the expenses incurred by an indemnified Person before the final
disposition of any suit or proceeding only after the indemnified
Person delivers to the Partnership an undertaking promising to
repay amounts so expended by the Partnership if it is later
adjudicated or determined that the Person is not entitled to
indemnification under this Agreement.
Section 11.5 Miscellaneous Management Matters. The General
Partner may rely on, any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
bond, debenture or other document it believes to be genuine and
to have been signed, or presented by the proper party or parties.
The General Partner may consult with any attorneys, accountants,
appraisers, management consultants, investment bankers, and other
consultants it selects (who may also serve as consultants for the
Partnership). An opinion by any consultant on a matter which the
General Partner believes to be within the consultant's
professional competence shall be complete protection as to any
action or omission by the General Partner based in good faith on
the opinion. The General Partner shall not be responsible to the
Limited Partners for the misconduct, negligence, acts, or
omissions of any consultant or agent of the Partnership, or the
General Partner and assumes no obligations as to these
consultants or agents except to use due care in selecting them.
Section 11.6 Execution of Partnership Instruments. The General
Partner may execute all deeds, leases, notes, mortgages, joint
venture or partnership agreements, contracts, certificates,
correspondence and any and all other instruments executed on the
Partnership's behalf, and for which the General Partner has
authority, in substantially the following form or in any other
manner consistent with applicable law:
Lake Investment, L.P.
By: NCP Lake Power Incorporated,
Its General Partner
By
(Name of authorized representative)
Its
(Title)
The General Partner has the right to authorize other Persons to
execute such documents and instruments on the Partnership's
behalf as the General Partner deems appropriate.
21<PAGE>
Section 11.7 Acknowledgment of General Partner Assignment. The
Limited Partners acknowledge that the General Partner will assign
its interest in the Partnership to the Owner Participant, as
agent for the Secured Parties under certain of the Operative
Documents, pursuant to the Assignment of Partnership Interests,
and the Limited Partners expressly consent to such assignment.
The Limited Partners acknowledge and agree that (i) except and
only to the extent expressly set forth in Section 2.02 of the
Assignment of Partnership Interests, the Owner Participant (and
not the General Partner) is entitled to exercise any and all
voting and/or consensual rights and management powers of the
General Partner that are granted hereunder or under the Act
(including without limitation, the rights and powers of the
General Partner described in Article XI hereof) and (ii) any such
exercise of such rights and powers by the Owner Participant shall
be deemed the valid exercise of such rights or powers by the
General Partner hereunder. Notwithstanding anything to the
contrary contained in this Agreement, in the event that the Owner
Participant shall foreclose or exercise any similar remedy under
the Assignment of Partnership Interests with respect to the
interests of the General Partner assigned thereunder (or if the
General Partner shall transfer or assign such interest in lieu of
foreclosure) (such a foreclosure, transfer or assignment being
herein referred to as a "Section 11.7 Transfer"), subject only to
the execution and delivery by a purchaser, transferee or assignee
(each a "Section 11.7 Transferee") in connection with such
Section 11.7 Transfer of a Substitute General Partner Agreement
(as defined in Section 14.6 hereof), none of the restrictions set
forth in Articles XIII or XIV hereof shall be applicable to any
such Section 11.7 Transferee and upon the completion of such
Section 11.7 Transfer the Section 11.7 Transferee shall
immediately become a Substitute General Partner. The Limited
Partners hereby irrevocably consent and agree to the admission of
any Section 11.7 Transferee as a Substitute General Partner and
agree to promptly execute and deliver upon request any and all
instruments, certificates and further assurances of such consent
and the admission of such Section 11.7 Transferee as a Substitute
General Partner.
ARTICLE XII
RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS
Section 12.1 No Right to Participate in Management. The Limited
Partners shall not, and shall have no right to, participate in
the control, conduct or operation of the Partnership or the
Partnership's business, and shall have no right or authority to
act for or bind the Partnership; provided, however, that the
Limited Partners may select a Person to act for and bind the
Partnership during the winding up period following dissolution of
the Partnership pursuant to, and subject to the conditions of,
Section 15.3(a) hereof in the event that the General Partner is
no longer a general partner of the Partnership and no Substitute
General Partner exists. A Limited Partner shall not be deemed to
participate in the management or control of the Partnership
22<PAGE>
solely by virtue of consulting with and advising the General
Partner with
23<PAGE>
respect to the business of the Partnership or exercising any
rights or powers which the Limited Partners are permitted to
exercise pursuant to this Agreement and Section 17-803 of the
Act.
Section 12.2 Limited Liability. No Limited Partner or assignee
of a Limited Partner shall have any liability whatsoever for any
debts, liabilities or other obligations of the Partnership,
beyond the amount of such Limited Partner's Capital Contribution
pursuant to Section 6.1(a) hereof; provided, however, that each
Limited Partner may be required to return any Distributions made
to such Limited Partner (with interest thereon) in violation of
Section 17-607 of the Act. A Limited Partner, as such, shall not
be personally liable for any obligations of the Partnership, and
shall not be obligated to make loans to the Partnership. As
specified in Section 11.4 hereof, the Limited Partners shall not
be required to indemnify the General Partner except out of
Partnership assets.
Section 12.3 Matters Subject to Vote. The General Partner shall
not take any action set forth in subsections (a)-(1) of this
Section 12.3 unless such action has been approved by the consent
or affirmative vote of a Majority in Interest of the Limited
Partners. Except as provided in Section 11.7 hereof, the Limited
Partners shall have the right to vote upon the following matters
and no others:
a. An election to continue the Partnership or an
election to continue the business of the Partnership following
the dissolution of the Partnership or in the circumstances forth
in Articles XIV or XV;
b. The incurrence, renewal, refinancing or payment of
indebtedness by the Partnership except in the ordinary course of
its business and except in the case of the Operative Documents,
which the General Partner is expressly authorized to enter into
and execute on behalf of the Partnership without any further
action of the Partners;
c. A change in the nature of the business of the
Partnership;
d. Removal of the General Partner as provided in
Section 14.2 hereof;
e. Admission of a Substitute General Partner;
f. Admission of an additional general partner;
g. Amendment of this Agreement, as provided in Section
16.1;
h. The execution or performance of any contract,
agreement or other arrangement by the Partnership with the
24<PAGE>
General Partner in its individual capacity or with any Affiliate
of the General Partner, except as provided in Section 4.1 hereof;
25<PAGE>
i. Any matter required by this Agreement to be
submitted by the Tax Matters Partner to the Limited Partners for
the consent or approval of the Limited Partners;
j. Any matter for which a vote is required by another
provision of this Agreement;
k. The sale, exchange, lease, mortgage, assignment,
pledge or other transfer of, or granting of a security interest
in, all or substantially all of the assets of the Partnership
except for (i) a sale, exchange, lease, mortgage, assignment,
pledge, transfer or granting of a security interest in the
ordinary course of business and (ii) the Operative Documents,
which the General Partner is expressly authorized to enter into
and execute on behalf of the Partnership without any further
action of the Partners; and
l. Such other matters as the General Partner may
submit in its sole and absolute discretion to the Limited
Partners for a vote or for their consent.
Section 12.4 Call of Meetings and Written Consents. The General
Partner may call a meeting of the Limited Partners for a vote, or
may call for a vote or consent without a meeting. The General
Partner shall call a meeting of the Limited Partners for a vote,
or shall call for a vote or consent without a meeting, within
twenty (20) days after receiving a written request from Limited
Partners holding twenty percent (20%) or more of the aggregate
Limited Partnership Interests for a vote or consent with respect
to any matter as to which any or all of the Limited Partners may
vote or consent pursuant to Section 12.3 hereof; provided,
however, that the foregoing right of the Limited Partners to
request that the General Partner call a meeting or call for a
vote or consent shall not give the Limited Partners the right or
power to compel the General Partner or the Partnership to take
any action with respect to any matter set forth in Section 12.3
hereof, except for any action by the Limited Partners pursuant to
Section 14.2 hereof or Section 12.3(d) hereof. The General
Partner's notice of a meeting shall state the time and place of
the meeting, and the general nature of the business to be
transacted; if no meeting is called, the General Partner's notice
shall state the matter or matters as to which a vote or consent
is being sought and the date on which such votes or consents
shall be counted. The date of the meeting, or the date on which
votes or consents shall be counted, shall be no less than ten
(10) nor more than sixty (60) days after the mailing of the
General Partner's notice. The meeting, if any, shall be held at
the Partnership's principal place of business or at such other
location as the General Partner shall state in the notice. The
Partnership shall bear all expenses of the notification and
meeting or vote or consent.
Section 12.5 Manner of Voting. Each Limited Partner shall be
entitled to cast votes (a) at a meeting, in person, by written
proxy or by a signed writing directing the manner in which the
26<PAGE>
vote is to be cast, which writing must be received by the General
27<PAGE>
Partner before the meeting or (b) without a meeting, by a signed
writing indicating the matter as to which the vote or consent is
effective and, if a vote, whether it is in support of or
opposition to such matter, which writing must be received by the
General Partner at or before the time and date on which the votes
or consents are to be counted. Only the votes or consents of
Limited Partners of record on the date on which the General
Partner sends its notice, whether at a meeting or otherwise,
shall be counted. The General Partner shall be entitled to vote
its Limited Partnership Interest, if any, for all matters in the
same fashion as other Limited Partners. If a proposal is
approved by an action of the Limited Partners taken without a
meeting, the written vote or consent shall set forth the action
to be taken and shall be signed by Limited Partners owning, in
the aggregate, not less than the minimum percentage of the
aggregate Limited Partnership Interest that would be necessary to
authorize or take such action at a meeting at which all the
Limited Partners were present and voted.
Section 12.6 Limitations. No Limited Partner shall have the
power to: (a) withdraw from the Partnership or reduce its
contribution to the capital of the Partnership; (b) except as
may be otherwise required by law, cause the dissolution and
termination of the Partnership by court decree or otherwise; or
(c) demand or receive property other than cash in return for such
Limited Partner's Capital Contribution. No specific time has
been agreed upon for the repayment of any Limited Partner's
Capital Contribution.
Section 12.7 Compensation and Reimbursement. No salary or other
compensation shall be paid to any Limited Partner.
Section 12.8 Investment Opportunities. No Limited Partner shall
be obligated to present any investment opportunity to the
Partnership, even if the opportunity is of a character that could
be taken by the Partnership if presented to it. Each Partner
shall have the right to take for its own account, or to recommend
to others, any investment opportunity presented to it.
ARTICLE XIII
ASSIGNMENT OF LIMITED PARTNERSHIP INTERESTS
Section 13.1 Restrictions on Transfers. Except as otherwise
provided in the Operative Documents, no Partner shall directly or
indirectly, voluntarily, involuntarily or by operation of law,
convey, exchange, assign, mortgage, encumber, hypothecate,
pledge, sell or otherwise transfer (each a "Transfer") all or any
portion of its interest in the Partnership, or enter into any
agreement to do so, except in accordance with the provisions of
this Article XIII. Any attempted Transfer in violation of the
terms of this Article XIII or any of the provisions of the
Operating Documents shall be void and of no force or effect. As
used herein, a "Transfer" shall be deemed to include a Transfer
of any shares,
28<PAGE>
voting rights or ownership interests which will result in a
change in the identity of the Person or Persons exercising, or
who may exercise, effective control of a Partner.
No Partner may Transfer any portion of its
interest in the Partnership unless: (a) the General Partner and
the Owner Participant shall have received the Required Opinion
from counsel selected by, or reasonably acceptable to, the
General Partner, and the General Partner shall have consented in
writing to such Transfer, which consent may be withheld in the
sole and absolute discretion of the General Partner; (b) such
Transfer shall not result in the Partnership being treated as an
association taxable as a corporation under the Code; (c) such
Transfer would not result in the Cogeneration Facility ceasing to
be a "qualifying cogeneration facility" under PURPA; (d) the
Transfer of the interest in the Partnership, when added to any
previous Transfer by any other Partner within a twelve (12) month
period, would not cause the Partnership to be considered to be
terminated under Section 708(b) of the Code, unless such Transfer
has received the unanimous consent of the Partners; and (e) such
Transfer would not cause a Default (as defined in Appendix A to
the Participation Agreement).
Section 13.2 Intentionally omitted.
Section 13.3 Rights of Assignee of Limited Partner. An assignee
of a Partner's Limited Partnership Interest or a portion thereof
(an "Assignee") who does not become a Substitute Limited Partner
in accordance with the provisions of Section 13.4 hereof shall be
subject, with respect to such Interest, to all of the
restrictions upon a Limited Partner provided in this Agreement,
but such Assignee shall not have the right to vote on any of the
matters on which a Limited Partner would be entitled to vote and
shall not have any other rights of a Partner other than the right
to the Assignee's share of Profits, Losses and Distributions. If
the General Partner receives a notice of Transfer pursuant to
Section 13.4 hereof, and if such Transfer is effected in
compliance with this Article XIII, the Assignee shall become
entitled to receive the transferring Limited Partner's share of
Profits, Losses and Distributions with respect to the Limited
Partnership Interest so transferred and shall succeed to the
transferring Limited Partner's Capital Account with respect to
the Limited Partnership Interest so transferred as of the end of
the day on which the General Partner receives such notice;
provided, however, that an Assignee shall become a Substitute
Limited Partner only upon the satisfaction of the conditions for
substitution set forth in Section 13.4 hereof.
Section 13.4 Substitution of Assignee of Limited Partner. An
Assignee of all or any part of a Limited Partner's Limited
Partnership Interest shall become a Substitute Limited Partner
only if each of the following conditions are met:
29<PAGE>
a. The General Partner consents thereto, which consent
shall be in the sole and absolute discretion of the General
Partner;
b. The Assignee shall consent in writing, in a form
prepared by or satisfactory to the General Partner, to be bound
by the terms and conditions of this Agreement;
c. The Assignee shall pay any expenses of the
Partnership in connection with the substitution of such Assignee
as a limited partner;
d. The Assignee shall submit an instrument of
assignment, duly executed by the assigning Limited Partner, in a
form satisfactory to the General Partner, which instrument of
assignment shall specify the portion of the Limited Partnership
Interest assigned to such Assignee and shall set forth the
transferring Limited Partner's intention that the Assignee become
a Substitute Limited Partner; and
e. All requirements of the Act, including any
amendment of the Certificate required by the Act, shall have been
completed by the Assignee, the transferring Limited Partner and
the Partnership, as the case may be.
The admission of a Substitute Limited Partner shall be
effective as of the close of the day on which all of the
conditions specified in this Section 13.4 have been satisfied.
A Substitute General Partner may be admitted only
pursuant to the provisions of Article XIV or Section 11.8 hereof.
Section 13.5 Confirmation of Transfer of Limited Partnership
Interest. If a Limited Partner Transfers all or any part of its
Limited Partnership Interest as permitted by this Article XIII,
such Limited Partner shall provide written confirmation of such
Transfer to the General Partner, signed by both the transferring
Limited Partner and its transferee, within thirty (30) days after
the Transfer or, if earlier, by the fifteenth (15) day of the
month following the fiscal year of the Partnership in which the
Transfer occurred. This written confirmation shall include (a)
the names and addresses of the transferring Limited Partner and
the transferee, (b) the taxpayer identification numbers of the
transferring Limited Partner and of the transferee, (c) the date
of the Transfer and (d) the terms and conditions of the Transfer.
Section 13.6 Indemnification. Each Partner hereby agrees that
it shall indemnify and hold harmless the Partnership, and in the
case of an attempted Transfer by a Limited Partner, the General
Partner from and against any and all losses, costs, liabilities
or economic disadvantages which result, directly or indirectly,
from any attempt by such Partner to make a Transfer which does
not comply with the requirements of this Article XIII.
30<PAGE>
Section 13.7 Bankruptcy of a Limited Partner. In the event of
the bankruptcy of a Limited Partner, the trustee, conservator,
administrator, receiver or other successor in interest of such
Limited Partner shall have all the rights of such Limited Partner
for the purpose of settling or managing its affairs and such
power as such Limited Partner possessed to assign all or a part
of its Limited Partnership Interest and to join with the assignee
in satisfying the conditions precedent to such assignee becoming
a Substitute Limited Partner. The bankruptcy of a Limited Partner
shall not dissolve the Partnership. A Limited Partner's
successor in interest shall be liable for all obligations of the
Limited Partner. In no event, however, shall such successor in
interest become a Substitute Limited Partner, except in
accordance with Section 13.4 hereof.
Section 13.8 Further Assignments. An Assignee of all or any
portion of a Partner's Partnership Interest pursuant to the terms
hereof, who desires to make a further Transfer of such interest,
shall be subject to all of the provisions of this Article XIII to
the same extent and in the same manner as the Partner making the
initial Transfer of a Partnership Interest.
Section 13.9 Additional Limited Partner. No additional limited
partner shall be admitted to the Partnership pursuant to the
creation of additional Limited Partnership Interests in the
Partnership without the approval of the General Partner and the
Owner Participant.
ARTICLE XIV
REMOVAL, WITHDRAWAL AND REPLACEMENT OF THE GENERAL PARTNER
Section 14.1 Removal for Good Cause Only. The General Partner
may be removed as general partner of the Partnership only for
"Good Cause" upon the affirmative vote of a Majority in Interest
of the Limited Partners required under Section 14.2 hereof. For
purposes of this Section, the term "Good Cause" shall mean either
(a) willful and continued neglect by the General Partner of its
duties under this Agreement, which neglect has a material adverse
effect on the Partnership or (b) a willful breach by the General
Partner of its fiduciary duties to the Partnership or the Limited
Partners including without limitation misappropriation of
Partnership assets, fraud, dishonesty or bad faith exercise of
management authority; provided, however, that with respect to any
neglect or breach under clause (a) or (b) above, the effects of
such neglect or breach has not been cured by the General Partner
within forty-five (45) days after receipt of written notice from
a Majority in Interest of the Limited Partners specifying such
neglect or breach (the "Removal Notice") or, if the effects of
such neglect or breach cannot be cured within such forty-five
(45)-day period, the failure by the General Partner to take good
faith reasonable efforts within such period to commence a cure of
the effects of such neglect or breach and to continue such
efforts until such effects are cured.
31<PAGE>
Section 14.2 Vote. Subject to the provisions of Section 14.1
hereof, the vote of the majority in Interest of the Limited
Partners, without the necessity for concurrence by the General
Partner, may remove the General Partner for "Good Cause" as
General Partner of the Partnership. The Removal Notice
delivered to the General Partner shall specify, in addition to
the actions deemed to constitute "Good Cause" for removal, the
effective date for removal (the "Removal Date"), which effective
date may not be prior to the date upon which a Person has agreed
to become a Substitute General Partner and the Owner Participant
shall have approved the selection of such Person in accordance
with the provisions of this Article.
Section 14.3 Dispute Regarding Removal.
a. In the event that a Majority in Interest of the
Limited Partners cause delivery of a Removal Notice to remove the
General Partner for "Good Cause" pursuant to Section 14.1 hereof,
the General Partner shall have a period of thirty (30) days to
provide notice to all of the Limited Partners of its intention to
dispute the removal, in which case the Removal Date shall be
tolled pending the resolution of the dispute. If, upon
resolution of the dispute, the removal is overturned, the General
Partner shall remain as the general partner of the Partnership.
b. If the General Partner does not dispute removal or,
upon the resolution of such dispute, such removal is upheld, the
General Partner shall cease to be a general partner effective on
the Removal Date (as may be extended by the period required to
secure the agreement by a Person to become a Substitute General
Partner). The Partnership shall cause an accounting to be
prepared at the expense of the General Partner from the end of
the preceding fiscal year to the Removal Date. After receiving
the Removal Notice, and prior to the Removal Date, the General
Partner shall not transact any business on behalf of the
Partnership other than in the ordinary course of business unless
pursuant to a contract entered into and binding upon the
Partnership prior to the date of receipt of the Removal Notice by
the General Partner.
Section 14.4 Voluntary Withdrawal. So long as the General
Partner has given written notice to the other Partners (and the
Owner Participant, if applicable) and a Person has been selected
and has agreed to become a Substitute General Partner in
accordance with Sections 14.5 and 14.6 hereof, the General
Partner may voluntarily withdraw from the Partnership as the
general partner effective ninety (90) days after written notice
(the "Withdrawal Notice") to the Limited Partners (the
"Withdrawal Date"); provided, however, that (i) such Withdrawal
Date may not be prior to the date upon which a Person has agreed
to become a Substitute General Partner in accordance with the
terms hereof and (ii) so long as the Participation Agreement
remains in effect, the General Partner may not withdraw without
the prior written approval of the Owner Participant.
32<PAGE>
Section 14.5 Selection of a Substitute General Partner. The
vote of a Majority in Interest of the Limited Partners is
necessary to select a Substitute General Partner; provided,
however, that so long as the Participation Agreement remains in
effect, such selection of a General Partner shall be subject to
the reasonable approval of the Owner Participant.
Section 14.6. Substitution. A Person shall become a Substitute
General Partner and assume the rights, powers and
responsibilities of the General Partner as provided in this
Agreement when such Person delivers to the Partners a written
agreement (the "Substitute General Partner Agreement") executed
by such Person within ten (10) days after such Person's selection
as a proposed Substitute General Partner, which Substitute
General Partner Agreement shall set forth the following
agreements by such Person: (a) to be bound by this Agreement;
(b) to assume the rights, powers and responsibilities of the
General Partner pursuant to the terms of this Agreement accruing
after such selection; (c) to amend this Agreement to reflect the
withdrawal of the withdrawn General Partner and the appointment
of such Substitute General Partner; (d) to perform the duties
and the responsibilities of the General Partner; and (e) to
record, file and publish any certificates or documents as may be
appropriate to evidence or effect such withdrawal, substitution
and release, including a Certificate of Amendment.
Section 14.7 Removed General Partner Not Liable. A removed
General Partner shall not be liable for any actions of the
Partnership occurring, or debts of the Partnership incurred,
after the Removal Date.
Section 14.8 Intentionally Omitted.
Section 14.9 Conversion or Purchase of the General Partner's
Interest. The Partnership shall not make any payment to a
removed or withdrawing General Partner in respect of its interest
in the Partnership. Instead, within thirty (30) days after the
Removal Date or the Withdrawal Date, the interest of the removed
or withdrawing General Partner in the Partnership as of the
Removal Date or Withdrawal Date shall be converted into an
interest as a Limited Partner that does not become a Substitute
Limited Partner.
ARTICLE XV
DISSOLUTION, LIQUIDATION AND
TERMINATION OF THE PARTNERSHIP
Section 15.1 Events of Dissolution. The Partnership shall
dissolve and commence winding up and liquidating upon the first
to occur of any of the following:
a. The date specified in Section 5.1 hereof;
33<PAGE>
b. When all of the Partners have given their written
consent to dissolve the Partnership;
c. The removal or withdrawal of the last remaining
General Partner, unless either (i) there is at least one other
general partner and that general partner elects to continue the
business of the Partnership or (ii) if there is no other general
partner or there is a general partner but such general partner
does not elect to continue the business of the Partnership, then,
within 90 days after the withdrawal, all Limited Partners agree
in writing to continue the business of the Partnership and a
successor General Partner is elected and admitted pursuant to the
provisions of Article XIV hereof;
d. The sale or other disposition of all or
substantially all of the property of the Partnership;
e. The continued conduct of the business of the
Partnership becoming illegal;
f. The General Partner files a voluntary petition in
bankruptcy or is adjudged a bankrupt (each a "GP Bankruptcy
Event") unless a Substitute General Partner is selected and
admitted pursuant to the provisions of Article XIV and all the
other Partners agree to continue the Partnership within 90 days
after the GP Bankruptcy; or
g. The entry of a judicial decree of dissolution.
Except as expressly set forth in (f) above, it is specifically
agreed that the events described in Section 17-402 (4)(a)-(f) and
(5) of the Act, if applicable to the General Partner, will not
cause the General Partner to cease to be the general partner of
the Partnership and will not cause the dissolution of the
Partnership. The involuntary dissolution of the General Partner
shall not cause a dissolution of the Partnership if the General
Partner is reinstated within ninety (90) days after such
involuntary dissolution.
Section 15.2 Right to Continue the Partnership's Business.
Upon the occurrence of any event which causes there to be no
General Partner, Limited Partners holding 100% of the Limited
Partner Interests (if they have the right to do so under
applicable law), shall have the right, but not the obligation,
exercisable within ninety (90) days from such event, to elect to
continue the Partnership's business provided that such election
shall not be effective unless within such ninety (90) day period,
a Majority in Interest of the Limited Partners appoints a
Substitute General Partner in accordance with the terms of this
Agreement. Notwithstanding anything contained in this Section
15.2 to the contrary, so long as the Participation Agreement
remains in effect, if the Limited Partners are unable to find a
Person to serve as the Substitute General Partner within sixty
(60) days of the effective
34<PAGE>
date of such removal or withdrawal, the Limited Partners must
make a written offer to allow the Owner Participant or its
designee to serve as the Substitute General Partner.
Section 15.3 Liquidation.
a. Except as otherwise set forth in Section 15.2
hereof, upon dissolution of the Partnership, the General Partner
shall take (or cause to be taken) a full accounting of the
Partnership's assets and liabilities as of the date of such
dissolution and, subject to the right of the General Partner or
its successor to continue the business of the Partnership for the
purpose of winding up its affairs, the General Partner shall
proceed with reasonable promptness to liquidate the Partnership's
assets (including without limitation, by way of the sale,
assignment, exchange, lease, sublease or other disposition of any
or all of the assets of the Partnership) and to terminate its
business; provided, however, that the assets of the Partnership
which are, in the opinion of the General Partner, suitable for
distribution in kind, may, in the sole and absolute discretion of
the General Partner, be distributed in kind to the extent that
the liquidation thereof is not necessary to satisfy the
requirements of clauses (i), (ii) and (iii) below. In the
event of the removal, withdrawal, dissolution or bankruptcy of
the General Partner which causes the dissolution of the
Partnership under Section 15.1, the winding up of the affairs of
the Partnership and the liquidation of its assets shall be
conducted by such Person as may be selected by a Majority in
Interest of the Limited Partners and approved by the Owner
Participant, which Person is hereby authorized to do any and all
acts and things authorized by law for these purposes and is
entitled to the compensation approved by a court of competent
jurisdiction.
The cash proceeds from such liquidation shall be
applied in the following order:
i. First, to the payment of all taxes, debts and
other obligations and liabilities of the Partnership, other than
amounts owing to Partners, and all necessary expenses of
liquidation thereof;
ii. Second, to the establishing of reserves
deemed reasonably necessary to satisfy contingent liabilities or
obligations of the Partnership or of the General Partner arising
out of or in connection with the Partnership;
iii. Third, to the reduction, pro rata, among all
such then outstanding loans, of first principal and then, to the
extent available, interest on all loans made by the Partners to
the Partnership; and
iv. Fourth, to the Partners, in accordance with
the relative amounts of the positive balances (if any) in their
35<PAGE>
respective Capital Accounts, after giving effect to all
contributions, distributions and allocations for all periods.
36<PAGE>
b. Except as provided above, the General Partner shall
administer the liquidation of the Partnership and the termination
of its business but shall receive no compensation. The General
Partner shall be allowed a reasonable time for the orderly
liquidation of the Partnership's assets and the discharge of
liabilities to creditors so as to minimize losses resulting from
the liquidation of the Partnership's assets.
Section 15.4 Termination. Upon compliance with the foregoing,
the General Partner or other Person winding up the affairs of the
Partnership as permitted hereunder, as the case may be, shall
file or cause to be filed a Certificate of Cancellation of the
Partnership and the Partnership thereupon shall be terminated.
Section 15.5 Compliance With Timing Requirements of Regulations.
In the event the Partnership is "liquidated" within the meaning
of Regulations Section 1.704-1(b)(2)(ii)(a), distributions shall
be made pursuant to this Article XV to the Partners who have
positive Capital Accounts in compliance with Regulations Section
1.704-l(b)(2)(ii)(b)(2). If any Partner has a deficit balance in
his Capital Account (after giving effect to all contributions,
distributions and allocations for all taxable years, including
the year during which such liquidation occurs), such Partner
shall have no obligation to make any contribution to the capital
of the Partnership with respect to such deficit, and such deficit
shall not be considered a debt owed to the Partnership or to any
other Person for any purpose whatsoever. In the discretion of
the General Partner, a pro rata portion of the distributions that
would otherwise be made to the Partners and pursuant to this
Article XV may be:
a. distributed to a trust established for the benefit
of the Partners for the purposes of liquidating Partnership
assets, collecting amounts owed to the Partnership and paying any
contingent or unforeseen liabilities or obligations of the
Partnership or of the General Partner arising out of or in
connection with the Partnership. The assets of any such trust
shall be distributed to the Partners and from time to time, in
the reasonable discretion of the General Partner, in the same
proportions as the amount distributed to such trust by the
Partnership would otherwise have been distributed to the Partners
pursuant to this Agreement; or
37<PAGE>
b. withheld to provide a reasonable reserve for
Partnership liabilities (contingent or otherwise) and to reflect
the unrealized portion of any installment obligations owed to the
Partnership, provided that such withheld amounts shall be
distributed to the Partners as soon as practicable.
ARTICLE I.
MISCELLANEOUS PROVISIONS
Section 16.1 Amendments.
a. Except for amendments made in accordance with
Sections 11.7(b) or 16.1(b) hereof, this Agreement may be amended
only with the written consent of the General Partner and a
Majority in Interest of the Limited Partners.
b. In addition to any amendments otherwise authorized
herein, amendments may be made to this Agreement by the General
Partner, acting without the consent of any Limited Partner: (i)
to elect that the Partnership be governed by any successor
statute of the State of Delaware governing limited partnerships;
or (ii) to substitute or admit any additional Limited Partners to
the extent allowed by this Agreement.
Section 16.2 Notices. Any notice, payment, demand or
communication required or permitted to be given by a Partner
pursuant to any provision of this Agreement shall be deemed to
have been sufficiently given or served for all purposes if
delivered personally to the party to whom the same is directed or
five (5) business days after deposit in the United States mail,
registered or certified, postage and charges prepaid, addressed
to the other Partner, as applicable, at the applicable address
specified on Exhibit B attached hereto. A Partner may change his
or her address for purposes of notice by a writing sent in
accordance with this Section 16.2 to the General Partner.
Notices to the Owner Participant shall be given at the applicable
address specified in Schedule I to the Participation Agreement.
Section 16.3 Power of Attorney. Each Limited Partner hereby
makes, constitutes and appoints the General Partner (and each
such Person appointed by the General Partner), with full power of
substitution, such Limited Partner's true and lawful attorney,
for it and in its name, place, stead and benefit, to sign,
execute, swear, file and record the Certificate, and, subject to
any applicable consent requirements contained in this Agreement,
to sign, execute, certify, swear, acknowledge, file and record
any other documents, instruments and conveyances as may be
necessary or appropriate to carry out the provisions or purposes
of this Agreement or which may be required of the Partnership by
law in Delaware, or any other applicable jurisdiction, or by
Federal or state securities laws or other applicable laws,
including, without limitation, amendments to or cancellation and
termination of the Certificate and fictitious business name
statements. The foregoing grant of authority is hereby declared
to be irrevocable
38<PAGE>
and a power coupled with an interest and shall survive the
bankruptcy or dissolution of any Person hereby giving such power
and the transfer or assignment of the whole or any portion of the
Limited Partnership Interest of such Person; provided, however,
that in the event of a Transfer by such Limited Partner of all of
such Limited Partner's Limited Partnership Interest, the
foregoing power of attorney of the transferor Limited Partner
shall survive such transfer until such time, if any, as the
transferee shall have been duly admitted to the Partnership as a
Substitute Limited Partner.
Section 16.4 Severability. If any provision of this Agreement
shall be invalid, illegal or unenforceable in any applicable
jurisdiction, the validity, legality and enforceability of the
remaining provisions, or of such provision in any other
jurisdiction, shall not in any way be affected or impaired
thereby.
Section 16.5 Application of Delaware Law. This Agreement, and
the application or interpretation hereof, shall be governed,
construed and enforced in accordance with the laws of the State
of Delaware.
Section 16.6 Sole and Absolute Discretion. Except as otherwise
provided in this Agreement, all actions which the General Partner
and/or the Owner Participant may take and all determinations
which the General Partner and/or the Owner Participant may make
pursuant to this Agreement may be taken and made at the sole and
absolute discretion of such General Partner and/or the Owner
Participant, as the case may be.
Section 16.7 Confidential Information. Each of the Partners
shall treat and maintain as confidential any and all confidential
and/or proprietary information, including without limitation
financial information, technical information and know-how and
development plans and strategies, received from or pertaining to
the other Partner or any affiliate thereof, the Partnership or
the Cogeneration Facility; provided, however, that the foregoing
obligation shall not apply to information which (a) was or
becomes known by such Partner or was or is generally available to
the public through no breach of this Agreement by any Partner or
(b) was or is disclosed to the public by a third party having the
right to do
Section 16.8 Headings. Headings at the beginning of each
Article and Section of this Agreement are solely for convenience
and are not a part of this Agreement.
Section 16.9 Entire Agreement. This Agreement contains the
entire agreement of the parties relating to the subject matter
hereof.
Section 16.10 Gender and Number. With respect to words used in
this Agreement, the singular form shall include the plural form,
39<PAGE>
the masculine gender shall include the feminine or neuter gender,
and vice versa, as the context requires.
40<PAGE>
Section 16.11 Successors. This Agreement shall be binding on
and inure to the benefit of the respective successors, assigns
and personal representatives of the parties hereto, except to the
extent of any contrary provision of this Agreement.
Section 16.12 Variation of Pronouns. All pronouns and any
variations thereof shall be deemed to refer to masculine,
feminine or neuter, singular or plural, as the identity of the
Person or Persons may require.
Section 16.13 Attorneys' Fees. If any legal action or
arbitration or other proceeding is brought by any party hereto
for the enforcement of this Agreement or as a result of a breach,
default or misrepresentation in connection with any of the
provisions of this Agreement, any successful or prevailing party
shall be entitled to recover from the party that does not prevail
reasonable attorneys' fees and other costs incurred by the
prevailing party in such action or proceeding, in addition to any
other relief to which that party may be entitled.
Section 16.14 Further Action. Each Partner, upon the request of
the General Partner, agrees to perform all further acts and
execute, acknowledge and deliver any documents which may be
reasonably necessary, appropriate or desirable to carry out the
provisions of this Agreement.
Section 16.15 Counterparts. This Agreement may be executed in
counterparts by each of the Partners, all of which taken together
shall be deemed one original.
Section 16.16 Covenant to Sign Documents. Each Partner shall
execute, with acknowledgment or affidavit if required, all
documents and writings reasonably necessary or expedient in the
creation of the Partnership and the achievement of its purpose
and the implementation of the provisions of this Agreement. Each
Partner hereby represents and warrants that the individual
signing this Agreement on its behalf is duly authorized to
execute and deliver this Agreement on behalf of such Partner.
Section 16.17 Time of Essence. All times and dates in this
Agreement shall be of the essence.
Section 16.18 Force Majeure. The respective obligations of each
Partner, other than the obligation to pay money, shall be
suspended while it is prevented from complying therewith, in
whole or in part, by weather conditions, labor accidents or
incidents, rules and regulations of any Federal, state, or other
governmental agency, delays in transportation, inability to
obtain necessary materials in the open market, or other cause of
the same or other character beyond the reasonable control of such
Partner. Any Partner asserting a force majeure condition shall
immediately notify the other Partners in writing of the
occurrence of such condition, and the estimated duration thereof.
In addition, the Partner affected by force majeure shall
immediately notify the
41<PAGE>
other Partners upon cessation thereof. Each Partner shall
cooperate so as to remedy any force majeure condition as
expeditiously as reasonably possible.
Section 16.19 No Partition. No Partner nor any legal
representative, successor, heir or assignee of any Partner shall
have the right to partition the Partnership Property or any part
thereof or interest therein, or to file a complaint or institute
any proceeding at law or in equity to partition the Partnership
Property or any part thereof or interest therein. Each Partner,
for itself and its legal representatives, heirs, successors and
assigns, hereby waives any such rights. The Partners intend
that during the term of this Agreement, the rights of the
Partners and their successors in interest, as among themselves,
shall be governed solely by the terms of this Agreement and, to
the extent consistent with this Agreement, by the Act.
Section 16.20 Not For Benefit of Creditors. The provisions of
this Agreement are intended only for the regulation of relations
among Partners, putative Partners and the Partnership. In
addition, the provisions of this Agreement set forth in Articles
XI, XII, XIII, XIV, XV and XVI are intended to benefit the Owner
Participant, Owner Trustee and their affiliates and may be
enforced by them in their own name against the parties hereto.
Subject to the exception in the preceding sentence, this
Agreement is not intended for the benefit of non-Partner
creditors and does not grant any rights to non-Partner creditors.
Section 16.21 Withholding. The General Partner shall comply
with any income tax withholding obligations that may be imposed
from time to time by the Code with respect to distributions or
income allocations to Partners.
Section 16.22 Representations of Limited Partners. Each
Limited Partner represents to the Partnership and the General
Partner that: (a) it is acquiring its Limited Partnership
Interest for its own account for investment and not with a view
to or for sale in connection with any distribution of such
Limited Partnership Interest (but subject, nevertheless, to any
requirement of law that the disposition of its property remain
within its control at all times); (b) it understands that the
interests in the Partnership have not been registered under the
Securities Act or the applicable securities laws of Delaware or
any other state, and must be held indefinitely unless the
interests are so registered or an exemption from such
registration is available; (c) it has such knowledge and
experience in business matters that it is capable of evaluating
the risks and merits of its investment in the Partnership; and
(d) it has received and reviewed the material agreements and
other documents relating to the Partnership and/or its business
and such other information, oral or written, as it has requested,
having been afforded the opportunity to ask questions of the
General Partner and to obtain any additional information that It
has deemed appropriate.
42<PAGE>
Section 16.23 Waiver. No waiver of any provision of this
Agreement shall be deemed effective unless contained in a writing
signed by the party against whom the waiver is sought to be
enforced. No failure or delay by any party in exercising any
right, power or remedy under this Agreement shall operate as a
waiver of any such right, power or remedy, and no waiver of any
breach or failure to perform shall be deemed a waiver of any
subsequent breach or failure to perform or of any other right
arising under this Agreement.
Section 16.24 Construction. Every covenant, term and provision
of this Agreement shall be construed simply according to its fair
meaning and not strictly for or against any Partner.
Section 16.25 Incorporation by Reference. Every exhibit,
schedule and other appendix attached to this Agreement and
referred to herein is hereby incorporated in this Agreement by
reference.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
"GENERAL PARTNER"
NCP LAKE POWER INCORPORATED, a
Delaware corporation
By:
Kenneth M. Ross
Vice President
"LIMITED PARTNER"
NCP GEM INCORPORATED,
a Delaware corporation
By:
Kenneth M. Ross
Vice President
43<PAGE>
EXHIBIT A
LIMITED PARTNERSHIP AGREEMENT
OF
LAKE INVESTMENT. L.P.
Contributions by Partners
Pursuant to Section 6.1
Name Cash Contribution
NCP Gem Incorporated $ 990.00
NCP Lake Power Incorporated $ 10.00
A-1<PAGE>
EXHIBIT B
LIMITED PARTNERSHIP AGREEMENT
OF
LAKE INVESTMENT, L.P.
Partnership Interests
The Partnership Interests of the Partners shall be as
follows:
General Partner: Partnership Interest
NCP Lake Power Incorporated
1100 Town & Country Road
Suite 800
Orange, California 92668 1.00%
Limited Partner: Partnership Interest
NCP Gem Incorporated
1100 Town & Country Road
Suite 800
Orange, California 92668 99.00%
B-1<PAGE>
EXHIBIT C
LIMITED PARTNERSHIP AGREEMENT
OF
LAKE INVESTMENT, L.P.
Certain capitalized terms used in the Agreement have the
following meanings:
"Act" shall mean the Delaware Revised Uniform Limited
Partnership Act, as amended from time to time.
"Adjusted Capital Account Deficit" shall mean, with respect
to any Limited Partner, the deficit balance, if any, in such
Limited Partner's Capital Account as of the end of the relevant
fiscal year, after giving effect to the following adjustments:
i. Credit to such Capital Account any amounts which such
Limited Partner is obligated to restore pursuant to any provision
of this Agreement or is deemed to be obligated to restore
pursuant to the penultimate sentences of Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5); and
ii. Debit to such Capital Account the items described in
Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations.
The foregoing definition of Adjusted Capital Account Deficit
is intended to comply with the provisions of Section 1.704-
1(b)(2)(ii)(d) of the Regulations and shall be interpreted
consistently therewith.
"Affiliate" shall mean a Person (including a Subsidiary)
which directly or indirectly controls, or is controlled by, or is
under common control with, another Partner, including any limited
partnership of which such other Partner or any Subsidiary or
Affiliate of such other Partner is the general partner.
"Agreement" or "Partnership Agreement" shall mean this
Limited Partnership Agreement, as amended from time to time.
Words such as "herein," "hereinafter," "hereof," "hereto,"
and "hereunder" refer to this Agreement as a whole, unless the
context otherwise requires.
"Assignee" shall mean a Person who has acquired from a
Partner a beneficial interest in Profits, Losses and
Distributions, but who is not a Substitute Limited Partner or
Substitute General Partner.
"Assignment of Partnership Interests" shall have the meaning
set forth in Appendix A to the Participation Agreement.
"Bankruptcy Code" shall have the meaning set forth in
Section 15.1 hereof.<PAGE>
C-1<PAGE>
"Borrower's Account" shall have the meaning set forth in
Appendix A to the Participation Agreement.
"Capital Account" shall mean, with respect to any Partner,
the Capital Account maintained for such Partner in accordance
with the following provisions:
i. To each Partner's Capital Account there shall be debited
the amount of cash and the Gross Asset Value of any Partnership
Property distributed to such Partner pursuant to any provision of
this Agreement, such Partner,s distributive share of Losses and
any items in the nature of expenses or losses which are specially
allocated pursuant to Section 3 or Section 4 of Exhibit D hereof,
and the amount of any liabilities of such Partner assumed by the
Partnership or which are secured by any property contributed by
such Partner to the Partnership.
ii. To each Partner's Capital Account there shall be
credited such Partner's Capital Contributions, such Partner's
distributive share of Profits and any items in the nature of
income or gain which are specially allocated pursuant to Section
3 or Section 4 of Exhibit D hereof, and the amount of any
Partnership liabilities assumed by such Partner or which are
secured by any Property distributed to such Partner.
iii. In the event all or a portion of an interest in the
Partnership is transferred in accordance with the terms of this
Agreement, the transferee shall succeed to the Capital Account of
the transferor to the extent it relates to the transferred
interest.
iv. In determining the amount of any liability for purposes
of clauses (i) and (ii) hereof, there shall be taken into account
Section 752(c) of the Code and any other applicable provisions of
the Code and Regulations.
The foregoing provisions and the other provisions of this
Agreement relating to the maintenance of Capital Accounts are
intended to comply with Regulations Section 1.704-1(b), and shall
be interpreted and applied in a manner consistent with such
Regulations. In the event the General Partner shall determine
that it is prudent to modify the manner in which the Capital
Accounts, or any debits or credits thereto (including without
limitation, debits or credits relating to liabilities which are
secured by contributed or distributed property or which are
assumed by the Partnership or Partners), are computed in order to
comply with such Regulations, the General Partner may make such
modification, provided that it is not likely to have a material
effect on the amounts distributable to any Partner pursuant to
Article XV hereof upon the dissolution of the Partnership. The
General Partner also shall (i) make any adjustments that are
necessary or appropriate to maintain equality between the Capital
Accounts of the Partners and the amount of Partnership capital
reflected on the Partnership's balance sheet, as computed for
book purposes, in <PAGE>
C-2<PAGE>
accordance with Regulations Section 1.704-1(b)(2)(iv)(a) and (ii)
make any appropriate modifications in the event unanticipated
events might otherwise cause this Agreement not to comply with
Regulations Section 1.704-1(b).
"Capital Contribution" shall mean, with respect to any
Partner, the amount of money and the initial Gross Asset Value of
any property (other than money) contributed to the Partnership
with respect to the interest in the Partnership held by such
Partner. The principal amount of a promissory note which is not
readily traded on an established securities market and which is
contributed to the Partnership by the maker of the note shall not
be included in the Capital Account of any Partner until the
Partnership makes a taxable disposition of the note or until (and
to the extent) principal payments are made on the note, all in
accordance with Regulations Section 1.704-l(b)(2)(iv)(d)(2).
"Cash Available for Distribution" shall mean, at any time,
such cash on hand and in financial institutions as in the General
Partner's sole and absolute discretion is then available for
distribution to the Partners (as permitted by the Operative
Documents) after (i) all costs and expenses incurred by or on
behalf of the Partnership have been paid or reimbursed and all
current debts and obligations of the Partnership have been paid
or provisions therefor have been made, (ii) reserves have been
set aside by the General Partner (which reserves shall be
determined by the General Partner in its sole and absolute
discretion) and (iii) adequate provision has been made for the
satisfaction of debt service requirements (if any).
"Certificate" shall mean the Certificate of Limited
Partnership.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time (or any corresponding provisions of
succeeding law).
"Cogeneration Facility" shall mean the cogeneration facility
being developed and constructed by the Project Partnership in
Lake County, Florida.
"Commercial Operation Date" shall mean the date on which the
Facility achieves Commercial Operation (as defined in the
Cogeneration Facility Turnkey Construction Contract dated as of
February 5, 1992, between the Project Partnership and National
Energy Production Corporation, a Washington corporation).
"Construction Loan Agreement" shall have the meaning set
forth in Appendix A to the Participation Agreement.
"Depreciation" shall mean, for each fiscal year or other
period, an amount equal to the depreciation, amortization or
other cost recovery deduction allowable with respect to an asset
for such year or other period, except that if the Gross Asset
Value of an <PAGE>
C-3<PAGE>
asset differs from its adjusted basis for federal income tax
purposes at the beginning of such year or other period,
Depreciation shall be an amount which bears the same ratio to
such beginning Gross Asset Value as the federal income tax
depreciation, amortization, or other cost recovery deduction for
such year or other period bears to such beginning adjusted tax
basis; provided, however, that if the federal income tax
depreciation, amortization, or other cost recovery deduction for
such year is zero, Depreciation shall be determined with
reference to such beginning Gross Asset Value using any
reasonable method selected by the General Partner.
"Distribution" shall mean any distribution by the
Partnership to the Partners, as provided in Section 7.1 hereof.
"Effective Date" shall mean July 23, 1992.
"Escrow Agreement" shall have the meaning set forth in
Appendix A to the Participation Agreement.
"FARALP" shall have the meaning set forth in the Recitals to
this Agreement.
"GAAP" shall mean generally accepted accounting principles
in effect from time to time in the United States, consistently
applied.
"General Partner" shall mean NCP Lake, in its capacity as
general partner of the Partnership, and any Partner who has been
admitted to the Partnership as a Substitute General Partner in
accordance with Article XIV hereof.
"Good Cause" shall have the meaning set forth in Section
14.1 hereof.
"Gross Asset Value" shall mean, with respect to any asset,
the asset's adjusted basis for federal income tax purposes,
except as follows:
i. The initial Gross Asset Value of any asset contributed
by a Partner to the Partnership shall be the gross fair market
value of such asset, as determined by the contributing Partner
and the Partnership;
ii. The Gross Asset Values of all Partnership assets shall
be adjusted to equal their respective gross fair market values,
as determined by the General Partner, as of the following times:
(A) the acquisition of an additional interest in the Partnership
by any new or existing Partner in exchange for more than a de
minimis Capital Contribution; (B) the distribution by the
Partnership to a Partner of more than a de minimis amount of
Partnership Property as consideration for an interest in the
Partnership; and (C) the liquidation of the Partnership within
the meaning of Regulations Section 1-704-1(b)(2)(ii)(a);
provided, however that adjustments <PAGE>
C-4<PAGE>
pursuant to clauses (A) and (B) above shall be made only if the
General Partner reasonably determines that such adjustments are
necessary or appropriate to reflect the relative economic
interests of the Partners in the Partnership;
iii. The Gross Asset Value of any Partnership asset
distributed to any Partner shall be the gross fair market value
of such asset on the date of distribution; and
iv. The Gross Asset Values of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the
adjusted basis of such assets pursuant to Section 734(b) of the
Code or Section 743(b) of the Code, but only to the extent that
such adjustments are taken into account in determining Capital
Accounts pursuant to Regulation Section 1.704-1(b)(2)(iv)(m) and
Section 7.5(g) hereof; provided, however, that Gross Asset Values
shall not be adjusted pursuant to the provisions of this clause
(iv) to the extent the General Partner determines that an
adjustment pursuant to clause (ii) hereof is necessary or
appropriate in connection with a transaction that would otherwise
result in an adjustment pursuant to this clause (iv).
If the Gross Asset Value of an asset has been determined or
adjusted pursuant to clause (i), (ii) or (iv) of this
definition, such Gross Asset Value shall thereafter be adjusted
by the Depreciation taken into account with respect to such asset
for purposes of computing Profits and Losses.
"Lease" shall have the meaning set forth in Appendix A to
the Participation Agreement.
"Limited Partner and Limited Partners" shall have the
meanings set forth in the introduction to this Agreement. The
terms "Limited Partner" and "Limited Partners" also shall mean,
for purposes of Exhibit D, the maintenance of Capital Accounts,
and the distribution provisions of this Agreement, an Assignee or
Assignees of a Limited Partnership Interest or Limited
Partnership Interests, as the context requires.
"Limited Partnership Interest" shall mean, as to any Limited
Partner, the proportion that the Partnership Interest of such
Limited Partner (as such) bears to the sum of the Partnership
Interests of all Limited Partners (as such).
"Majority in Interest of the Limited Partners" shall mean,
at any time, those Limited Partners that own of record more than
fifty percent (50%) of the aggregate Limited Partnership
Interests.
"NCP Lake" shall mean NCP Lake Power Incorporated, a
Delaware corporation.
"Nonrecourse Deductions" shall have the meaning given to
such term in Section 1.704-2(b)(1) of the Regulations.<PAGE>
C-5<PAGE>
"Nonrecourse Liability" shall have the meaning given to such
term in Section 1.704-2(b)(3) of the Regulations.
"Operative Documents" shall have the meaning set forth in
Appendix A to the Participation Agreement and any replacements of
such instruments or agreements from time to time entered into
with the same parties, new parties or lenders or with any
combination thereof.
"Owner Participant" shall have the meaning set forth in
Appendix A to the Participation Agreement.
"Owner Trustee" shall have the meaning set forth in Appendix
A to the Participation Agreement.
"Participation Agreement" shall mean the Participation
Agreement dated as of July 29, 1992, among the Partnership, TIFD
III-C Inc., The Citizens & Southern National Bank of Florida and
General Electric Capital Corporation.
"Partner" shall mean the General Partner, the Limited
Partners and any other Person who becomes a Substitute General
Partner or Limited Partner, pursuant to the terms of this
Agreement. The term "Partner" also shall mean, for purposes of
Exhibit D, the maintenance of Capital Accounts, and the
distribution provisions of this Agreement, an Assignee of a
Partner.
"Partner Nonrecourse Debt Minimum Gain" shall mean an
amount, with respect to each Partner Nonrecourse Debt, equal to
the Partnership Minimum Gain that would result if such Partner
Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Section 1.704-2(i)(3) of the
Regulations.
"Partner Nonrecourse Debt" shall have the meaning set forth
in Section 1.704-2(b)(4) of the Regulations.
"Partner Nonrecourse Deductions" shall have the meaning set
forth in Sections 1.704-2(i)(1) and 1.704-2(i)(2) of the
Regulations.
"Partnership" shall mean Lake Investment, Ltd., a Delaware
limited Partnership, as such Partnership may from time to time be
constituted.
"Partnership Accountants" shall have the meaning set forth
in Section 9.6 hereof.
"Partnership Interest" for each Partner shall be as set
forth on Exhibit B hereof.
"Partnership Minimum Gain" shall have the meaning set forth
in Sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations.<PAGE>
C-6<PAGE>
"Partnership Property" shall mean the Partnership's right,
title and interest in all property of the Partnership, whether
real, personal or mixed, whether tangible or intangible.
"Person" shall mean any natural person, firm, partnership,
trust estate, association, corporation or other entity.
"Profits" and "Losses" for each fiscal year or other period
beginning on or after the Effective Date, an amount equal to the
Partnership,s taxable income or loss for such year or period,
determined in accordance with Section 703(a) of the Code (for
this purpose, all items of income, gain, loss or deduction
required to be stated separately pursuant to Section 703(a)(1) of
the Code shall be included in taxable income or loss), with the
following adjustments:
i. Any income of the Partnership that is exempt from
federal income tax and not otherwise taken into account in
computing Profits or Losses shall be added to such taxable income
or loss;
ii. Any expenditures of the Partnership described in
Section 705(a)(2)(B) of the Code or treated as expenditures for
purposes of Section 705(a)(2)(B) of the Code pursuant to .
Regulations Section 1.704-1(b)(2)(iv)(i) and not otherwise taken
into account in computing Profits or Losses shall be subtracted
from such taxable income or loss;
iii. In the event the Gross Asset Value of any Partnership
asset is adjusted pursuant to clause (ii) or (iii) of the
definition thereof, the amount of such adjustment shall be taken
into account as gain or loss from the disposition of such asset
for purposes of computing Profits or Losses;
iv. Gain or loss resulting from any disposition of Property
with respect to which gain or loss is recognized for federal
income tax purposes shall be computed by reference to the Gross
Asset Value of the property disposed of, notwithstanding that the
adjusted tax basis of such property differs from its Gross Asset
Value;
v. In lieu of the depreciation, amortization and other cost
recovery deductions taken into account in computing such taxable
income or loss, there shall be taken into account Depreciation
for such fiscal year or other period, computed in accordance the
definition of Depreciation above; and
vi. Notwithstanding any other provision of this definition,
any items which are specially allocated pursuant to Section 3 or
Section 4 of Exhibit D hereof shall not be taken into account in
computing Profits or Losses.
"Project Partnership" shall mean Lake Cogen, Ltd., a Florida
limited partnership.<PAGE>
C-7<PAGE>
"Regulations" shall mean the Income Tax Regulations
promulgated under the Code, as such regulations may be amended
from time to time (including corresponding provisions of
succeeding regulations).
"Removal Date" shall have the meaning set forth in Section
14.2 hereof.
"Removal Notice" shall have the meaning set forth in Section
14.1 hereof.
"Required Opinion" shall mean an opinion of counsel, the
form of which shall he reasonably acceptable to the General
Partner and the Owner Participant, that a specified Transfer of a
Limited Partnership Interest (i) may be effected without
registration under the Securities Act, (ii) will not result in
the violation of any applicable state securities laws, (iii)
will not result in a termination of the Partnership under the
Code, (iv) will not result in the Partnership being treated as an
association taxable as a corporation under the Code, (v) will
not result in the Partnership or any Affiliate of a Partner
becoming subject to regulation under the Public Utility Holding
Company Act of 1935 (or the rules and regulations promulgated
thereunder) or becoming otherwise subject to increased regulatory
burdens, (vi) will not result in the Cogeneration Facility
ceasing to be exempt from regulation as a result of changing its
status as a "qualifying cogeneration facility" under the Public
Utilities Regulatory Policies Act of 1978 (or the rules and
regulations promulgated thereunder), (vii) will not constitute a
violation of or default under the Operative Documents and (viii)
such other matters as are reasonably required by the General
Partner.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Security" shall mean a "security" within the meaning of
Section 2(1) of the Securities Act.
"Subsidiary" shall mean, with respect to a Person, a
corporation in which such Person owns, directly or indirectly,
more than 50% of the Voting Stock.
"Substitute General Partner" shall mean a Person who has
assumed the rights, powers and responsibilities of the General
Partner pursuant to Article XIV hereof.
"Substitute General Partner Agreement" shall have the
meaning set forth in Section 14.6 hereof.
"Substitute Limited Partner" shall mean an Assignee who has
become a Limited Partner pursuant to Article XIII hereof, having
all of the rights of the transferring Limited Partner, including
without limitation, the right to vote on any of the matters on
which a Limited Partner is entitled to vote pursuant to this
Agreement.<PAGE>
C-8<PAGE>
"Tax Matters Partner" shall have the meaning set forth in
Section 8.2 hereof.
"Transfer" shall have the meaning set forth in Section 13.1
hereof.
"Voting Stock" shall mean securities, the holders of which
are ordinarily, in the absence of contingencies, entitled to
elect the corporate directors (or Persons performing a similar
function).
"Withdrawal Date" shall have the meaning set forth in
Section 14.4 hereof.
"Withdrawal Notice" shall have the meaning set forth in
Section 14.4 hereof.<PAGE>
C-9<PAGE>
EXHIBIT D
LIMITED PARTNERSHIP AGREEMENT
OF
LAKE INVESTMENT, L.P.
Allocation of Profits and Losses
1. Profits. After giving effect to the special allocations set
forth in Sections 3 and 4 hereof, Profits for any fiscal year
shall be allocated to the Partners in proportion to the
Partnership Interest of each Partner.
2. Losses. After giving effect to the special allocations set
forth in Sections 3 and 4 hereof, Losses for any fiscal year
shall be allocated as follows:
a. Except as provided in Section 2(b) hereof, Losses shall
be allocated to the Partners in proportion to the Partnership
Interest of each Partner.
b. The Losses allocated pursuant to Section 2(a) hereof
shall not exceed the maximum amount of Losses that can be so
allocated without causing any Limited Partner to have an Adjusted
Capital Account Deficit at the end of any fiscal year. All Losses
in excess of the limitation set forth in this Section 2(b) shall
be allocated to the General Partner.
3. Special Allocations. The following special allocations shall
be made in the following order:
a. Partnership Minimum Gain Chargeback. Except as provided
in Section 1.704-2(f) of the Regulations, notwithstanding any
other provision of this Exhibit D, if there is a net decrease in
Partnership Minimum Gain during any Partnership fiscal year, each
Partner shall be specially allocated items of Partnership income
and gain for such year (and, if necessary, subsequent years) in
an amount equal to such Partner's share of the net decrease in
Partnership Minimum Gain, determined in accordance with
Regulations Section 1.704-2(g). Allocations pursuant to the
previous sentence shall be made in proportion to the respective
amounts required to be allocated to each Partner pursuant
thereto. The items to be so allocated shall be determined in
accordance with Sections 1.704-2(f)(6) and 1.704-2(j)(2) of the
Regulations. This Section 3(a) is intended to comply with the
minimum gain chargeback requirement in such Section of the
Regulations and shall be interpreted consistently therewith.
b. Partner Nonrecourse Debt Minimum Gain Chargeback.
Except as otherwise provided in Section 1.7042(i)(4) of the
Regulations, notwithstanding any other provision of this Exhibit
D except Section 3(a) hereof, if there is a net decrease in
Partner <PAGE>
D-1<PAGE>
Nonrecourse Debt Minimum Gain attributable to a Partner
Nonrecourse Debt during any Partnership fiscal year, each Partner
who has a share of the Partner Nonrecourse Debt Minimum Gain
attributable to such Partner Nonrecourse Debt, determined in
accordance with Section 1.704-2(i)(5) of the Regulations, shall
be specially allocated items of Partnership income and gain for
such year (and, if necessary, subsequent years) in an amount
equal to the portion of such Partner's share of the net decrease
in Partner Nonrecourse Debt Minimum Gain attributable to such
Partner Nonrecourse Debt, determined in accordance with
Regulations Section 1.704-2(i)(4). Allocations pursuant to the
previous sentence shall be made in proportion to the respective
amounts required to be allocated to each Partner pursuant
thereto. The items to be so allocated shall be determined in
accordance with Sections 1.704-2(i)(4) and 1.7042(j)(2) of the
Regulations. This Section 3(b) is intended to comply with the
minimum gain chargeback requirement in such Section of the
Regulations and shall be interpreted consistently therewith.
c. Qualified Income Offset. In the event any Limited
Partner unexpectedly receives any adjustments, allocations or
distributions described in Section 1.704-1(b)(2)(ii)(d)(4), (5)
or (6) of the Regulations, items of Partnership income and gain
shall be specially allocated to each such Limited Partner in an
amount and manner sufficient to eliminate, to the extent required
by the Regulations, the Adjusted Capital Account Deficit of such
Limited Partner as quickly as possible, provided that an
allocation pursuant to this Section 3(c) shall be made only if
and to the extent that such Limited Partner would have an
Adjusted Capital Account Deficit after all other allocations
provided for in this Exhibit D have been tentatively made as if
this Section 3(c) were not in the Agreement.
d. Gross Income Allocation. In the event any Limited
Partner has a deficit Capital Account at the end of any
Partnership fiscal year which is in excess of the sum of (i) the
amount such Limited Partner is obligated to restore pursuant to
any provision of this Agreement and (ii) the amount such Limited
Partner is deemed to be obligated to restore pursuant to the
penultimate sentences of Regulations Sections 1.704-2(g) and
1.704-2(i)(5), each such Limited Partner shall be specially
allocated items of Partnership income and gain in the amount of
such excess as quickly as possible, provided that an allocation
pursuant to this Section 3(d) shall be made only if and to the
extent that such Limited Partner would have a deficit Capital
Account in excess of such sum after all other allocations
provided for in this Exhibit D have been tentatively made as if
this Section 3(d) and Section 3(c) hereof were not in the
Agreement.
e. Nonrecourse Deductions. Nonrecourse Deductions for any
fiscal year or other period shall be specially allocated to the
Partners in proportion to the Partnership Interest of each
Partner.<PAGE>
D-2<PAGE>
f. Partner Nonrecourse Deductions. Any Partner
Nonrecourse Deductions for any fiscal year or other period shall
be allocated to the Partner who bears the economic risk of loss
with respect to the Partner Nonrecourse Debt to which such
Partner Nonrecourse Deductions are attributable in accordance
with Regulations Section 1.704-2(i)(1).
g. Section 754 Adjustments. To the extent an adjustment to
the adjusted tax basis of any Partnership asset pursuant to
Section 734(b) of the Code or Section 743(b) of the Code is
required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m),
to be taken into account in determining Capital Accounts, the
amount of such adjustment to the Capital Accounts shall be
treated as an item of gain (if the adjustment increases the basis
of the asset) or loss (if the adjustment decreases such basis)
and such gain or loss shall be specially allocated to the
Partners in a manner consistent with the manner in which their
Capital Accounts are required to be adjusted pursuant to such
Section of the Regulations.
4. Curative Allocations.
a. The "Regulatory Allocations" consist of the "Basic
Regulatory Allocations," as defined in Section 4(b) hereof, the
"Nonrecourse Regulatory Allocations," as defined in Section 4(c)
hereof, and the "Partner Nonrecourse Regulatory Allocations," as
defined in Section 4(d) hereof.
b. The "Basic Regulatory Allocations" consist of (i)
allocations pursuant to the last sentence of Section 2(b) hereof,
and (ii) allocations pursuant to Sections 3(c), 3(d) and 3(g)
hereof. Notwithstanding any other provision of this Agreement,
other than the Regulatory Allocations, the Basic Regulatory
Allocations shall be taken into account in allocating items of
income, gain, loss and deduction among the Partners so that, to
the extent possible, the net amount of such allocations of other
items and the Basic Regulatory Allocations to each Partner shall
be equal to the net amount that would have been allocated to each
such Partner if the Basic Regulatory Allocations had not
occurred. For purposes of applying the foregoing sentence,
allocations pursuant to this Section 4(b) shall only be made with
respect to allocations pursuant to Section 3(g) hereof to the
extent the General Partner reasonably determines that such
allocations will otherwise be inconsistent with the economic
agreement among the parties to this Agreement.
c. The "Nonrecourse Regulatory Allocations" consist of all
allocations pursuant to Sections 3(a) and 3(e) hereof.
Notwithstanding any other provision of this Agreement, other than
the Regulatory Allocations, the Nonrecourse Regulatory
Allocations shall be taken into account in allocating items of
income, gain, loss and deduction among the Partners so that, to
the extent possible, the net amount of such allocations of other
items and the Nonrecourse Regulatory Allocations to each Partner
shall be equal to the net amount that would have been allocated
to each such <PAGE>
D-3<PAGE>
Partner if the Nonrecourse Regulatory Allocations had not
occurred. For purposes of applying the foregoing sentence (i) no
allocations pursuant to this Section 4(c) shall be made prior to
the Partnership fiscal year during which there is a net decrease
in Partnership Minimum Gain, and then only to the extent
necessary to avoid any potential economic distortions caused by
such net decrease, and (ii) allocations pursuant to this Section
4(c) shall be deferred with respect to allocations pursuant to
Section 3(e) hereof to the extent the General Partner reasonably
determines that such allocations are likely to be offset by
subsequent allocations pursuant to Section 3(a) hereof.
d. The "Partner Nonrecourse Regulatory Allocations" consist
of all allocations pursuant to Sections 3(b) and 3(f) hereof.
Notwithstanding any other provision of this Agreement, other than
the Regulatory Allocations, the Partner Nonrecourse Regulatory
Allocations shall be taken into account in allocating items of
income, gain, loss and deduction among the Partners so that, to
the extent possible, the net amount of such allocations of other
items and the Partner Nonrecourse Regulatory Allocations to each
Partner shall be equal to the net amount that would have been
allocated to each such Partner if the Partner Nonrecourse
Regulatory Allocations had not occurred. For purposes of
applying the foregoing sentence (i) no allocations pursuant to
this Section 4(d) shall be made with respect to allocations
pursuant to Section 3(f) relating to a particular Partner
Nonrecourse Debt prior to the Partnership fiscal year during
which there is a net decrease in Partner Minimum Gain
attributable to such Partner Nonrecourse Debt, and then only to
the extent necessary to avoid any potential economic distortions
caused by such net decrease, and (ii) allocations pursuant to
this Section 4(d) shall be deferred with respect to allocations
pursuant to Section 3(f) hereof relating to a particular Partner
Nonrecourse Debt to the extent the General Partner reasonably
determines that such allocations are likely to be offset by
subsequent allocations pursuant to Section 3(b) hereof.
e. The General Partner shall have reasonable discretion,
with respect to each Partnership fiscal year, to (i) apply the
provisions of Sections 4(b), 4(c) and 4(d) hereof in whatever
order is likely to minimize the economic distortions that might
otherwise result from the Regulatory Allocations, and (ii) divide
all allocations pursuant to Sections 4(b), 4(c) and 4(d) hereof
among the Partners in a manner that is likely to minimize such
economic distortions.
5. Other Allocation Rules.
a. For purposes of determining the Profits, Losses, or any
other items allocable to any period, Profits, Losses, and any
such other items shall be determined on a daily, monthly, or
other basis, as determined by the General Partner using any
permissible method under Section 706 of the Code and the
Regulations thereunder.
D-4<PAGE>
b. Except as otherwise provided in this Agreement, all
items of Partnership income, gain, loss, deduction, and any other
allocations not otherwise provided for shall be divided among the
Partners in the same proportions as they share Profits or Losses,
as the case may be, for the year.
c. The Partners are aware of the income tax consequences of
the allocations made by this Exhibit D and hereby agree to be
bound by the provisions of this Exhibit D in reporting their
shares of Partnership income and loss for income tax purposes.
d. Solely for the purpose of determining a Partner's
proportionate share of the "excess nonrecourse liabilities" of
the Partnership within the meaning of Regulations Section
1.752-3(a)(3), the Partners' interests in Partnership profits
shall be in proportion to each Partner's Partnership Interest.
e. To the extent permitted by Section 1.7042(h)(3) of the
Regulations, the General Partner shall endeavor treat
Distributions as having been made from proceeds of Nonrecourse
Liabilities or Partner Nonrecourse Debt only to the extent that
such Distributions would cause or increase an Adjusted Capital
Account Deficit for any Limited Partner.
6. Tax Allocations: Section 704[c) of the Code. In accordance
with Section 704(c) of the Code and the Regulations thereunder,
income, gain, loss and deduction with respect to any property
contributed to the capital of the Partnership shall, solely for
tax purposes, be allocated among the Partners so as to take
account of any variation between the adjusted basis of such
property to the Partnership for federal income tax purposes and
its initial Gross Asset Value (computed in accordance with clause
(i) of the definition thereof).
In the event the Gross Asset Value of any Partnership asset
is adjusted pursuant to clause (ii) of the definition thereof,
subsequent allocations of income, gain, loss and deduction with
respect to such asset shall take account of any variation between
the adjusted basis of such asset for federal income tax purposes
and its Gross Asset Value in the same manner as under Section
704(c) of the Code and the Regulations thereunder.
Any elections or other decisions relating to such
allocations shall be made by the General Partners in any manner
that reasonably reflects the purpose and intention of this
Agreement. Allocations pursuant to this Section 6 are solely
for purposes of federal, state and local taxes and shall not
affect, or in any way be taken into account in computing, any
Partner's Capital Account or share of Profits, Losses, other
items or distributions pursuant to any provision of this
Agreement.<PAGE>
D-5<PAGE>
EXHIBIT B-116
AGREEMENT OF LIMITED
PARTNERSHIP OF DADE INVESTMENT, L.P.
This Agreement of Limited Partnership ("Agreement") is
made as of the 28th day of August, 1991, by and among NCP Dade
Power Incorporated, a Delaware corporation, (the "General
Partner") and NCP Pasco Incorporated, a Delaware corporation (the
"Limited Partner") (the General Partner and the Limited Partner
are hereinafter collectively referred to as the "Partners" or the
"Parties").
ARTICLE 1
FORMATION OF LIMITED PARTNERSHIP
1.1 Formation. The Partners hereby ratify the
formation and establishment of a limited partnership (the
"Partnership") under the limited partnership law of the State of
Delaware.
1.2 Name. The name of the Partnership shall be "Dade
Investment, L.P." which name may be changed by the General
Partner by written notice to the Limited Partner.
1.3 Principal Place of Business. The principal place
of business of the Partnership shall be at 1100 Town & Country
Road, Suite 800, Orange, California 92668, or at such other place
as the General Partner may from time to time designate in writing
to the Limited Partner. The Partnership may also maintain other
offices at such other places as the General Partner may deem
advisable.
1.4 Address of General Partner. The address of the
General Partner is 1100 Town & Country Road, Suite 800, Orange,
California 92668, or such other place as the General Partner may
from time to time designate in writing to the Limited Partner.
1.5 Purpose of the Partnership. The purpose of the
Partnership shall be:
(a) to become a limited partner in, and invest
funds in, Pasco Cogen, Ltd., a Florida limited partnership
organized to develop, construct, own, finance, manage and operate
an electrical and steam generating facility in Pasco County,
Florida (the "Project"); and
(b) to perform any acts and activities necessary
or appropriate with respect to the foregoing purpose.
1<PAGE>
1.6 Certificate of Limited Partnership. A Certificate
of Limited Partnership ("Certificate") was filed in the office of
the Secretary of State of Delaware on May 23, 1991. The General
2<PAGE>
Partner shall execute and cause to be filed certificates of
amendment of the Certificate whenever required by the limited
partnership law of the State of Delaware or this Agreement. The
General Partner shall, if required, also record a certified copy
of the Certificate and any amendments thereto in the office of
the county recorder in every county in which the Partnership owns
real property.
ARTICLE 2
TERM OF THE PARTNERSHIP
2.1 Commencement. The term of the Partnership
commenced on May 23, 1991 and shall continue in full force and
effect until December 31, 2015 (the "Expiration Date"), unless
sooner dissolved, liquidated or otherwise terminated in
accordance with the provisions of this Agreement or as provided
by law.
ARTICLE 3
PARTNERSHIP INTERESTS; CAPITAL CONTRIBUTIONS
3.1 Partnership Interests. The Partners each hold the
following initial partnership interests ("Partnership
Interests"), which interests are subject to change pursuant to
the terms of this Agreement:
General Partner:
NCP Dade Power Incorporated 1%
Limited Partner:
NCP Pasco Incorporated 99%
3.2 Contribution of General Partner. Concurrently
with the execution of this Agreement, the General Partner shall
make a capital contribution to the Partnership of One Dollar
($1.00).
3.3 Contribution of The Limited Partner. Concurrently
with the execution of this Agreement, the Limited Partner shall
make a capital contribution to the Partnership of Ninety-Nine
Dollars ($99.00).
3.4 Capital Accounts. A separate capital account
shall be established for each Partner on the books of the
Partnership ("Capital Account"). The amount of such Partner's
Capital Account at any time shall be the amount of the capital
contribution of such Partner, increased by (a) the amount of any
additional capital contributions made by such Partner to the
capital of the Partnership, and (b) the amount of taxable income
allocated to the Partner pursuant to Article 5 hereof, and
decreased by (x) the amount of cash and the fair market value of
3<PAGE>
any property transferred to the Partner as a distribution
pursuant to Article 4
4<PAGE>
hereof, and (y) the amount of taxable loss allocated to the
Partner pursuant to Article 5 hereof. The Capital Accounts may
be positive or negative. The Limited Partner shall not be under
any obligation to restore any deficit in its Capital Account.
3.5 Additional Contributions. Additional capital
contributions may be made from time to time as the Partners may
agree, in the proportions set forth in Section 3.1 hereof unless
the Partners otherwise agree.
3.6 Return of Capital and Waiver of Partition. No
Partner shall have the right to demand or receive from the
Partnership any return of capital contributions made pursuant to
this Agreement, except upon dissolution of the Partnership or as
otherwise provided for herein.
3.7 Advances. Any Partner may make advances to the
Partnership in such amounts and upon such commercially reasonable
terms as the General Partner shall deem necessary for the
business of the Partnership. Such advances shall not be deemed
contributions to capital.
ARTICLE 4
DISTRIBUTIONS OF PARTNERSHIP FUNDS
4.1 Distribution of Net Cash Flow. The General
Partner shall distribute at such times as it determines to be
appropriate, all or part of the Partnership's Net Cash Flow on a
pro rata basis according to the Partnership Interests set forth
in Section 3.1.
4.2 Distribution on Liquidation. Upon the liquidation
of the Partnership in accordance with the terms hereof, and after
providing for or paying all expenses of the Partnership and
claims against the Partnership (including, without limitation,
advances made pursuant to Section 3.7 hereof) and after funding
reserves reasonably necessary in connection with the proper
liquidation of the Partnership, the remaining assets of the
Partnership shall be distributed to the Partners on a pro rata
basis in accordance with their respective Capital Accounts.
Distributions pursuant to this Section 4.2 may be made in cash or
other property or both. Any distributions of property shall be
based on the fair market value of such property.
4.3 Net Cash Flow. "Net Cash Flow" shall mean the
Partnership's available cash realized from all sources, less (a)
expenses (including but not limited to debt service), (b) such
reserves as the General Partner deems reasonably necessary for
the proper operation of the Partnership's business, and (c) any
fees and expenditures authorized by this Agreement except for
expenditures paid out of capital or loan proceeds.
5<PAGE>
ARTICLE 5
ALLOCATIONS
5.1 Profit and Loss Allocations. The profits and
losses of the Partnership shall be allocated to the Partners in
proportion to their Partnership Interests as set forth in Section
3.1 hereof.
ARTICLE 6
GENERAL PARTNER
6.1 Management. The General Partner shall have sole
and complete discretion in the management and control of the
business of the Partnership, and shall make all decisions
affecting the business of the Partnership and shall manage and
control the affairs of the Partnership to the best of its ability
so as to carry out the purpose of the Partnership. The powers of
the General Partner include, but are not limited to, the power:
(a) to expend the capital and profits of the
Partnership in furtherance of the Partnership's business,
including contributions to the capital of Pasco Cogen, Ltd.;
(b) to acquire, hold, lease as lessor or lessee,
sell, finance, mortgage, convey, or refinance the real and
personal property of the Partnership;
(c) to borrow money and execute promissory notes
and to secure the same by mortgage upon the Partnership's
property;
(d) to lend money in furtherance of the
Partnership's purposes;
(e) to commence, defend, compromise or settle any
claims, proceedings, actions or litigation for and on behalf of
the Partnership and retain legal counsel in connection therewith
and pay out of the assets of the Partnership any and all
liabilities and expenses (including fees of legal counsel)
incurred in connection therewith;
(f) to execute on behalf of the Partnership such
documents as may be necessary or appropriate to facilitate the
financing of the Project, including without limitation the
granting of a security interest in the Partnership's interest in
Pasco Cogen, Ltd. for the benefit of entities providing financing
for the Project; and
(g) to enter into and carry out agreements of any
kind, and to do any and all other acts and things as the General
Partner may deem necessary, proper, convenient, or advisable to
effectuate and carry out the purposes of the Partnership.
6<PAGE>
7<PAGE>
6.2 Obligations. The General Partner shall: (a)
devote only such of its time to the management of the business of
the Partnership as it deems necessary to conduct it for the
reasonable advantage of the Partnership; (b) file and publish all
certificates, notices or other instruments required by law for
formation and operation of the Partnership; and (c) cause to be
maintained capital accounts on the books and records of the
Partnership in respect of each Partner's interest in the
Partnership.
6.3 Partnership Services. The General Partner may, in
furtherance of its powers, rights and obligations hereunder,
employ, or contract with any person for the account of the
Partnership for the transaction of the business of the
Partnership.
6.4 Reimbursement. The General Partner shall be
reimbursed by the Partnership for all costs, including a
reasonable allowance for overhead and administrative costs,
incurred by or on behalf of the General Partner in connection
with performing its obligations on behalf of the Partnership.
6.5 Indemnification. The General Partner, its
directors, officers, employees, assigns, representatives and any
of its affiliates (each such person being an "Indemnitee"), shall
be held harmless and be indemnified by the Partnership for any
liability, damage, expense (including reasonable attorney's fees)
or loss suffered (collectively "Loss") by reason of such
Indemnitee's acting in its given capacity in connection with
Partnership activities, except for any Loss suffered because of
such Indemnitee's gross negligence or willful misconduct. No
Indemnitee shall be liable to the Partnership for any Loss
suffered by the Partnership in connection with its activities,
except for any Loss suffered because of such Indemnitee's gross
negligence or willful misconduct.
6.6 Partnership Tax Matters. The General Partner is
designated as the tax matters partner of the Partnership. In
carrying out its responsibilities as tax matters partner, the
General Partner shall have authority to make such elections, take
such actions and enter into such agreements as it deems in the
best interests of the Partners. Any expense incurred by the
Partnership in contesting with the Internal Revenue Service or
any state income tax authority any change in income or loss or
the allocation of income or loss to any Partner shall be an
expense of the Partnership.
ARTICLE 7
RIGHTS OF THE LIMITED PARTNER
8<PAGE>
7.1 No Liability. The Limited Partner shall not be
subject to assessment nor shall it be liable for any of the debts
9<PAGE>
of the Partnership or any of the losses thereof beyond the amount
contributed by the Limited Partner to the capital of the
Partnership and such Partner's share of undistributed profits of
the Partnership.
7.2 Management. The Limited Partner, as such, shall
not take part in the management of the Partnership's business,
transact any business for the Partnership, or have the power to
sign for or to bind the Partnership to any agreement or document.
7.3 Inspection. The Limited Partner and its
designated representatives shall be entitled to review and copy
the records of the Partnership at reasonable times upon prior
notice and at the location where such records are kept by the
Partnership.
7.4 Voting Rights. Except as expressly provided in
this Agreement, the Limited Partner shall have no right to vote
on any Partnership matter. The following actions shall require
the consent of both the General Partner and the Limited Partner:
(i) The dissolution and winding up of the
Partnership;
(ii) A change in the nature of the Partnership's
business;
(iii) The admission or removal of a general
partner; and
(vi) An amendment to this Agreement or the
Certificate.
ARTICLE 8
ADDITIONAL PARTNERS; WITHDRAWALS
8.1 Limited Partner. The Limited Partner shall
cooperate with the General Partner in doing all things necessary
or desirable to assure that the Partnership at all times complies
with any and all applicable securities laws.
8.2 Restrictions on Transfer; Withdrawal. The Limited
Partner may not sell, assign or otherwise transfer all or any
portion of its Partnership Interest or any fraction thereof
except to the Partnership, or voluntarily withdraw from the
Partnership, unless such Partner obtains the prior written
consent of the General Partner, which consent may be withheld in
the General Partner's sole discretion. Any purported sale,
assignment or transfer of all or any portion of the Limited
Partner's Partnership Interest without such consent shall, to the
fullest extent permitted by law, be null, void and of no effect.
Before any Partnership Interest or portion thereof is offered by
10<PAGE>
the Limited Partner to a third party, such interest shall first
be offered to
11<PAGE>
the Partnership on the same terms contemplated in the offer to
the third party, and the Partnership shall have a continuing
right of first refusal with respect to all offers to or from
third parties with respect a Partnership Interest.
8.3 Assignee.
(a) A Limited Partner who shall sell, assign or
otherwise transfer all of such Limited Partner's Partnership
interest in accordance with Section 8.2 hereof shall cease to be
a Limited Partner, except that, unless and until the grantee,
assignee or other recipient of such Partnership Interest (the
"Assignee") is admitted as a substituted Limited Partner in
accordance with Section 8.3(b) hereof, the assigning Limited
Partner shall retain the statutory rights of a Limited Partner
under the limited partnership law of the State of Delaware and
shall retain its obligations as a Limited Partner under this
Agreement. A person who is the Assignee of a Partnership
Interest of a Limited Partner but has not become a substituted
Limited Partner in accordance with Section 8.3(b) hereof shall
have no rights as a Limited Partner under this Agreement.
(b) Any Assignee of the Limited Partner's
Partnership Interest shall be admitted to the Partnership as a
substituted Limited Partner only with the prior written consent
of the General Partner, which consent shall be in the sole
discretion of the General Partner. If any proposed substituted
Limited Partner is to be admitted on or subject to terms
different from those applicable to the Limited Partner whose
interest such proposed substitute Limited Partner is to succeed,
the express approval of the General Partner is required with
respect to any such different terms.
8.4 Continuation of Partnership. In the case of the
Limited Partner's withdrawal or the admission of a new limited
partner, the Partnership shall not dissolve or terminate but
shall continue without any break in continuity. Upon the
occurrence of any of these events, the other Partners shall not
liquidate or wind up the affairs of the Partnership, except as
otherwise provided in this Agreement, and will continue to
conduct the Partnership under the terms of this Agreement.
ARTICLE 9
DISSOLUTION AND LIQUIDATION
9.1 Dissolution. The Partnership shall be dissolved
and its business shall be wound up on the first to occur of the
following:
(a) The sale, condemnation, transfer or other
disposition of all or substantially all of the Partnership's
property in accordance with the terms of this Agreement;
12<PAGE>
(b) The written agreement of the Partners to
voluntarily dissolve and wind up the Partnership;
(c) The occurrence of any of the events specified
in Section 9.2 hereof, unless the Limited Partner shall elect as
provided in Section 9.2 hereof to continue the Partnership as
provided in such Section; or
(d) The Expiration Date as provided in Section
2.1 hereof.
9.2 Continuation of Partnership. Upon (a) the
dissolution, resignation, insolvency, bankruptcy or other legal
incapacity of the General Partner or any other event which would
legally disqualify the General Partner from acting hereunder, (b)
the occurrence of any other event which, by law, would require
the Partnership to be dissolved, (c) the agreement of the General
Partner and the Limited Partner that there has been a material
breach of this Agreement by the General Partner, or (d) in the
case of no agreement between the Partners pursuant to clause (c)
immediately above, a determination from which no further rights
of appeal lie that there has been a material breach by the
General Partner of this Agreement, the Partnership shall be
dissolved and wound up unless, within ninety (90) days after the
occurrence of any such event, the Limited Partner shall elect, in
writing, that the business of the Partnership shall be continued
on the terms and conditions herein contained and the Limited
Partner shall designate one or more persons to be substituted as
the general partner of the Partnership.
9.3 Liquidation Procedure.
(a) A reasonable time shall be allowed for the
orderly liquidation by the General Partner of the assets of the
Partnership and the discharge of liabilities to creditors so as
to enable the Partnership to minimize the losses normally
attendant to a liquidation.
(b) Upon dissolution of the Partnership for any
reason, distributions under Article 4 hereof and allocations
under Article 5 hereof shall continue to be made in accordance
with the provisions of this Agreement in effect from time to time
during the period of liquidation.
(c) Subject to Section 9.4 hereof, the General
Partner, as liquidator, shall proceed to liquidate the
Partnership property to the extent that it has not already been
reduced to cash, and such cash liquidation proceeds shall be
applied and distributed in accordance with the provisions of this
Agreement.
9.4 Liquidation Partner. If the dissolution of the
Partnership is caused by circumstances under which there is no
surviving General Partner or if the dissolution is caused by a
13<PAGE>
wrongful act of the General Partner, then the Limited Partner
shall
14<PAGE>
proceed to wind up the business affairs of the Partnership. In
such event, the Limited Partner shall be indemnified and held
harmless by the Partnership from and against any and all claims,
demands, liabilities, costs, damages and causes of action of any
nature whatsoever arising out of or incidental to the Limited
Partner's taking of any action authorized under, or within the
scope of this Agreement; provided, however, that the Limited
Partner shall not be entitled to indemnification where the claims
at issue arose out of:
(a) A matter unrelated to the Limited Partner's
action under the provisions of this Agreement; or
(b) The gross negligence or willful misconduct of
the Limited Partner.
The Limited Partner is hereby irrevocably appointed as
the true and lawful attorney in the name, place and stead of each
of the Partners, such appointment being coupled with an interest,
to make, execute, sign, acknowledge, verify and file with respect
to the Partnership all papers which shall be necessary or
desirable to effect the dissolution and termination of the
Partnership in accordance with the provisions of this Section.
Without limiting the foregoing, the Limited Partner shall, upon
the final dissolution and termination of the Partnership in
accordance with the provisions of Section 9.1 hereof, file an
appropriate certificate to such effect in the proper governmental
office or offices under the Delaware Revised Uniform Limited
Partnership Act as then in effect. Notwithstanding the
foregoing, each Partner, upon the request of the Limited Partner,
shall promptly execute, acknowledge, verify and deliver all such
documents, certificates and other instruments as the Limited
Partner shall reasonably request to effectuate the proper
dissolution and termination of the Partnership, including the
winding up of the business of the Partnership, pursuant to this
Section 9.4.
ARTICLE 10
BOOKS AND RECORDS
10.1 Books of Account. The Partnership shall maintain its
books and records, and shall determine all amounts of taxable
income or loss and tax credits, on the accrual basis of
accounting in accordance with principles applicable in
determining taxable income or loss for Federal income tax
purposes for partnerships, and to the extent not provided, in
accordance with generally accepted accounting principles,
consistently applied. The Partnership shall also keep all other
records necessary or convenient to recording the Partnership's
business and affairs and sufficient to record the determination
and allocation of all items of taxable income or loss and tax
credits and all distributions and other amounts as may be
15<PAGE>
provided for herein and to meet the requirements of any bank or
other lenders to the Partnership or to
16<PAGE>
meet any reporting requirements imposed on any of the Partners by
government or regulatory authorities, or by this Agreement,
including keeping an additional set of records on a full accrual
basis of accounting in accordance with generally accepted
accounting principles, consistently applied.
ARTICLE 11
GENERAL PROVISIONS
11.1 Power of Attorney.
(a) The Limited Partner makes, constitutes, and
appoints the General Partner, with full power of substitution,
its true and lawful attorney for it and in its name, place, and
stead and for its use and benefit, to sign, execute, certify,
acknowledge, file, and record this Agreement, and to sign,
execute, certify, acknowledge, file, and record all appropriate
instruments amending this Agreement as now or hereafter amended,
including, without limitation, agreements or other instruments or
documents: (a) to reflect any amendments duly made to the
Agreement; (b) to reflect the admission to the Partnership of a
substituted limited partner or the withdrawal of any Partner, in
the manner prescribed in this Agreement; and (c) which may be
required of the Partnership or of any Partner by the laws of the
State of Delaware or any other jurisdiction or governmental
agency. The Limited Partner authorizes the General Partner to
take any further action which the General Partner shall consider
necessary or advisable to be done in and about the foregoing
(including the power to consent to items (a), (b), and (c) above
as fully as the Limited Partner might or could do if personally
present) and hereby ratifies and confirms all that such
attorney-in-fact shall lawfully do or cause to be done by virtue
hereof.
(b) The foregoing power of attorney is a special
power of attorney coupled with an interest and is irrevocable,
may be exercised by the General Partner by listing the Limited
Partner executing any agreement, certificate, instruction, or
document with the signature of the General Partner acting as
attorney-in-fact for it, and, notwithstanding any provision of
this Agreement to the contrary, shall survive the delivery of an
assignment or other transfer by a Limited Partner of the whole or
a portion of its interest in the Partnership, until the Assignee
thereof becomes a substituted limited partner.
11.2 Notices. Except as otherwise provided herein,
any notice which shall be given in connection with the business
of the Partnership shall be duly given if reduced to writing and
delivered personally to the person to whom it is authorized to be
given, or if sent by mail (registered mail, return receipt
requested) or telecopy to the last address furnished by it for
such purpose.
17<PAGE>
18<PAGE>
11.3 Validity. If any provision of this Agreement, or
the application of such provision to any person or circumstance,
shall be held invalid, the remainder of this Agreement, or the
application of such provision to persons or circumstances other
than those as to which it is held invalid, shall not be affected
thereby.
11.4 Applicable Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Delaware.
11.5 Binding Agreement. This Agreement shall be
binding upon, and inure to the benefit of, the Parties hereto,
and their respective permitted successors, heirs, devises,
assigns, legal representatives, executors, and administrators.
11.6 Headings. All articles and section headings in
this Agreement are for convenience of reference only and are not
intended to qualify the meaning of any article or section.
11.7 Nonrecourse Creditors. A creditor who makes a
nonrecourse loan to the Partnership will not have or acquire, at
any time as a result of making the loan, any direct or indirect
interest in the profits, capital, or property of the Partnership
other than as a secured creditor.
11.8 Affiliate. An "affiliate" of any entity shall
mean any individual, corporation, partnership, group or trust
that directly or indirectly controls, is controlled by, or is
under common control with, such entity.
11.9 Amendment. This Agreement or any portions
thereof, may be amended, or restated in its entirety, by the
written consent of all of the Partners.
11.10 Entire Agreement. This Agreement contains the
entire understanding among the Partners and supersedes any and
all prior understandings or written or oral agreements between
the Partners respecting the within subject matter.
19<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
GENERAL PARTNER
NCP DADE INCORPORATED
By: Kenneth M. Ross
Title: Vice President
LIMITED PARTNER
NCP PASCO INCORPORATED
By: Kenneth M. Ross
Title: Vice President
20<PAGE>
Index of Exhibits Filed by EDGAR
Exhibit No.
B-13 Articles of Incorporation of North Canadian Power, Inc.
B-14 Certificate of Amendment of Articles of Incorporation of North
Canadian Power, Inc., to change to name of the company to NCP
Energy, Inc.
B-15 Certificate of Incorporation of NCP Lake Power, Inc.
B-16 Certificate of Incorporation of NCP Gem, Inc.
B-17 Certificate of Incorporation of Umatilla Groves, Inc.
B-18 Certificate of Incorporation of NCP Dade Power, Inc.
B-19 Certificate of Incorporation of NCP Pasco, Inc.
B-20 Articles of Incorporation of ADA Management Corporation.
B-21 Certificate of Amendment of Articles of Incorporation of ADA
Management Corporation to change the name of the company to
Commerce Cogeneration Corporation.
B-22 Certificate of Amendment of Articles of Incorporation of Commerce
Cogeneration Corporation to change the name of the company to NCP
ADA Power, Inc.
B-23 Certificate of Incorporation of NCP Brooklyn Power, Inc.
B-24 Articles of Incorporation of Trigen Power Company.
B-25 Certificate of Amendment of Articles of Incorporation of Trigen
Power Company to change the name of the company to ADA Power
Company.
B-26 Certificate of Amendment of Articles of Incorporation of ADA Power
Company to change the name of the company to NCP Commerce Power,
Inc.
B-27 Certificate of Incorporation of NCP Houston Power, Inc.
B-28 Certificate of Incorporation of NCP Perry, Inc.
B-29 Certificate of Incorporation of NCP New York, Inc.
B-30 Certificate of Incorporation of EI Selkirk, Inc.
B-31 Memorandum of Association of 2322133 Nova Scotia Limited.
B-32 Certificate of Amendment of the Memorandum of Association of
2322133 Nova Scotia Limited to change the name of the company to
EI Canada Holding Limited.
-1-
<PAGE>
Index of Exhibits Filed by EDGAR
Exhibit No.
B-33 Memorandum of Association of 2322117 Nova Scotia Limited.
B-34 Certificate of Amendment of the Memorandum of Association of
2322117 Nova Scotia Limited to change the name of the company to
EI Brooklyn Power Limited.
B-35 Memorandum of Association of 2322120 Nova Scotia Limited.
B-36 Certificate of Amendment of the Memorandum of Association of
2322120 Nova Scotia Limited to change the name of the company to
EI Services Canada Limited.
B-37 Memorandum of Association of 2285241 Nova Scotia Limited.
B-38 Certificate of Amendment of the Memorandum of Association of
2285241 Nova Scotia Limited to change the name of the company to
EI Brooklyn Investments Limited.
B-39 Memorandum of Association of EI Cayman.
B-41 Certificate of Incorporation of EI Power, Inc.
B-45 Certificate of Incorporation of EI Power (China), Inc.
B-46 Certificate of Incorporation of EI Power (China) I, Inc.
B-47 Certificate of Incorporation of EI Power (China) II, Inc.
B-48 Certificate of Incorporation of EI Power (China) III, Inc.
B-70 By-Laws of North Canadian Power, Inc. (subsequently renamed NCP
Energy, Inc.)
B-71 By-Laws of NCP Lake Power, Inc.
B-72 By-Laws of NCP Gem, Inc.
B-73 By-Laws of Umatilla Groves, Inc.
B-74 By-Laws of NCP Dade Power, Inc.
B-75 By-Laws of NCP Pasco, Inc.
B-76 By-Laws of Commerce Cogeneration Corporation (formerly known as
ADA Management Corporation) - subsequently renamed NCP ADA Power,
Inc.
B-77 By-Laws of NCP Brooklyn Power, Inc.
B-78 By-Laws of Trigen Power Company (successively renamed ADA Power
Company and NCP Commerce Power, Inc.)
-2-
<PAGE>
Index of Exhibits Filed by EDGAR
Exhibit No.
B-79 By-Laws of NCP Houston Power, Inc.
B-80 By-Laws of NCP Perry, Inc.
B-81 By-Laws of NCP New York, Inc.
B-82 By-Laws of EI Selkirk, Inc.
B-83 Articles of Association of 2322133 Nova Scotia Limited
(subsequently renamed EI Canada Holding Limited).
B-84 Articles of Association of 2322117 Nova Scotia Limited
(subsequently renamed EI Brooklyn Power Limited).
B-85 Articles of Association of 2322120 Nova Scotia Limited
(subsequently renamed EI Services Canada Limited).
B-86 Articles of Association of 2285241 Nova Scotia, Ltd. (subsequently
renamed EI Brooklyn Investments, Limited).
B-87 By-Laws of EI Cayman.
B-89 By-Laws of EI Power, Inc.
B-91 By-Laws of EI Power (China), Inc.
B-92 By-Laws of EI Power (China) I, Inc.
B-93 By-Laws of EI Power (China) II, Inc.
B-94 By-Laws of EI Power (China) III, Inc.
B-112 Agreement of Limited Partnership of Lake Investment, L.P.
B-116 Agreement of Limited Partnership of Dade Investment, L.P.
C-19 Fiftieth Supplemental Indenture, dated as of August 1, 1994.
D-1 Tax Allocation Agreement and Amendments.
E-4 Venture Disclosures - Licensing of Computer Programs to
Nonassociated Companies.
E-6 Venture Disclosures - Operation and Maintenance Service Business.
F-1 Item 6. Part III - Compensation and other related information for
the Officers and Directors of GPU, JCP&L, Met-Ed and Penelec.
-3-
<PAGE>
Index of Exhibits Filed by EDGAR
Exhibit No.
F-2 - Consolidating Financial Statements of Energy Initiatives, Inc. for
1994.
- Consolidating Financial Statements of OLS Power Limited Partnership
for 1994.
- Consolidating Financial Statements for NCP Energy, Inc for 1994.
- Consolidating Financial Statements of Metropolitan Edison Company
for 1994.
- Consolidating Financial Statements of Pennsylvania Electric Company
for 1994.
G-1 - Financial Data Schedules:
- General Public Utilities Corporation and Subsidiary Companies
- Jersey Central Power & Light Company
- Metropolitan Edison Company and Subsidiary Companies
- Pennsylvania Electric Company and Subsidiary Companies
H-1 - Organizational chart showing the relationship of Energy
Initiatives, Inc. to each exempt wholesale generator in which it
holds an interest.
H-2 - Organizational chart showing the relationship of EI Power, Inc. to
each exempt wholesale generator in which it holds an interest.
-4-
<PAGE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-START> JAN-01-1994
<PERIOD-END> DEC-31-1994
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 6,266,598
<OTHER-PROPERTY-AND-INVEST> 492,493
<TOTAL-CURRENT-ASSETS> 785,602
<TOTAL-DEFERRED-CHARGES> 1,665,084
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 9,209,777
<COMMON> 314,458
<CAPITAL-SURPLUS-PAID-IN> 663,418
<RETAINED-EARNINGS> 1,775,759
<TOTAL-COMMON-STOCKHOLDERS-EQ> 2,572,584 <F1>
150,000
303,116 <F2>
<LONG-TERM-DEBT-NET> 2,345,417
<SHORT-TERM-NOTES> 287,800
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 59,608
<LONG-TERM-DEBT-CURRENT-PORT> 91,165
0
<CAPITAL-LEASE-OBLIGATIONS> 16,982
<LEASES-CURRENT> 157,168
<OTHER-ITEMS-CAPITAL-AND-LIAB> 3,225,937
<TOT-CAPITALIZATION-AND-LIAB> 9,209,777
<GROSS-OPERATING-REVENUE> 3,649,516
<INCOME-TAX-EXPENSE> 152,047
<OTHER-OPERATING-EXPENSES> 3,008,944
<TOTAL-OPERATING-EXPENSES> 3,160,991
<OPERATING-INCOME-LOSS> 488,525
<OTHER-INCOME-NET> (81,155)
<INCOME-BEFORE-INTEREST-EXPEN> 407,370
<TOTAL-INTEREST-EXPENSE> 243,682 <F3>
<NET-INCOME> 163,688
0
<EARNINGS-AVAILABLE-FOR-COMM> 163,688
<COMMON-STOCK-DIVIDENDS> 204,233
<TOTAL-INTEREST-ON-BONDS> 183,186
<CASH-FLOW-OPERATIONS> 750,133
<EPS-PRIMARY> 1.42
<EPS-DILUTED> 1.42
<FN>
<F1> INCLUDES REACQUIRED COMMON STOCK OF $181,051.
<F2> INCLUDES PREFERRED SECURITIES OF SUBSIDIARIES OF $205,000.
<F3> INCLUDES PREFERRED DIVIDENDS OF SUBSIDIARIES OF $28,384.
</FN>
<PAGE>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NAME> JERSEY CENTRAL POWER & LIGHT
<NUMBER> 7
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-START> JAN-01-1994
<PERIOD-END> DEC-31-1994
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 2,880,445
<OTHER-PROPERTY-AND-INVEST> 255,337
<TOTAL-CURRENT-ASSETS> 379,467
<TOTAL-DEFERRED-CHARGES> 821,539
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 4,336,788
<COMMON> 153,713
<CAPITAL-SURPLUS-PAID-IN> 435,715
<RETAINED-EARNINGS> 772,240
<TOTAL-COMMON-STOCKHOLDERS-EQ> 1,361,668
150,000
37,741
<LONG-TERM-DEBT-NET> 1,168,444
<SHORT-TERM-NOTES> 77,500
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 32,856
<LONG-TERM-DEBT-CURRENT-PORT> 47,439
0
<CAPITAL-LEASE-OBLIGATIONS> 4,362
<LEASES-CURRENT> 102,059
<OTHER-ITEMS-CAPITAL-AND-LIAB> 1,354,719
<TOT-CAPITALIZATION-AND-LIAB> 4,336,788
<GROSS-OPERATING-REVENUE> 1,952,425
<INCOME-TAX-EXPENSE> 75,748
<OTHER-OPERATING-EXPENSES> 1,622,399
<TOTAL-OPERATING-EXPENSES> 1,698,147
<OPERATING-INCOME-LOSS> 254,278
<OTHER-INCOME-NET> 13,516
<INCOME-BEFORE-INTEREST-EXPEN> 267,794
<TOTAL-INTEREST-EXPENSE> 104,953
<NET-INCOME> 162,841
14,795
<EARNINGS-AVAILABLE-FOR-COMM> 148,046
<COMMON-STOCK-DIVIDENDS> 100,000 <F1>
<TOTAL-INTEREST-ON-BONDS> 93,477
<CASH-FLOW-OPERATIONS> 356,106
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
<F1> REPRESENTS COMMON STOCK DIVIDENDS PAID TO PARENT CORPORATION.
</FN>
<PAGE>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NAME> METROPOLITAN EDISION
<NUMBER> 9
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-START> JAN-01-1994
<PERIOD-END> DEC-31-1994
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,579,560
<OTHER-PROPERTY-AND-INVEST> 74,667
<TOTAL-CURRENT-ASSETS> 174,861
<TOTAL-DEFERRED-CHARGES> 407,191
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 2,236,279
<COMMON> 66,273
<CAPITAL-SURPLUS-PAID-IN> 341,616
<RETAINED-EARNINGS> 190,742
<TOTAL-COMMON-STOCKHOLDERS-EQ> 598,631
0
123,598 <F1>
<LONG-TERM-DEBT-NET> 529,783
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 40,517
0
<CAPITAL-LEASE-OBLIGATIONS> 2,174
<LEASES-CURRENT> 33,810
<OTHER-ITEMS-CAPITAL-AND-LIAB> 907,766
<TOT-CAPITALIZATION-AND-LIAB> 2,236,279
<GROSS-OPERATING-REVENUE> 801,303
<INCOME-TAX-EXPENSE> 34,002
<OTHER-OPERATING-EXPENSES> 655,805
<TOTAL-OPERATING-EXPENSES> 689,807
<OPERATING-INCOME-LOSS> 111,496
<OTHER-INCOME-NET> (54,227)
<INCOME-BEFORE-INTEREST-EXPEN> 57,269
<TOTAL-INTEREST-EXPENSE> 56,538 <F2>
<NET-INCOME> 731
2,960
<EARNINGS-AVAILABLE-FOR-COMM> (2,229)
<COMMON-STOCK-DIVIDENDS> 35,000 <F3>
<TOTAL-INTEREST-ON-BONDS> 43,270
<CASH-FLOW-OPERATIONS> 230,171
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
<F1> INCLUDES PREFERRED SECURITIES OF SUBSIDIARY OF $100,000.
<F2> INCLUDES DIVIDENDS ON PREFERRED SECURITIES OF SUBSIDIARY
<F2> OF $3,200.
<F3> REPRESENTS COMMON STOCK DIVIDENDS PAID TO PARENT CORPORATION.
</FN>
<PAGE>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<SUBSIDIARY>
<NAME> PENNSYLVANIA ELECTRIC
<NUMBER> 14
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-START> JAN-01-1994
<PERIOD-END> DEC-31-1994
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,747,864
<OTHER-PROPERTY-AND-INVEST> 34,467
<TOTAL-CURRENT-ASSETS> 212,201
<TOTAL-DEFERRED-CHARGES> 386,522
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 2,381,054
<COMMON> 105,812
<CAPITAL-SURPLUS-PAID-IN> 261,671
<RETAINED-EARNINGS> 290,786
<TOTAL-COMMON-STOCKHOLDERS-EQ> 658,269
0
141,777 <F1>
<LONG-TERM-DEBT-NET> 616,490
<SHORT-TERM-NOTES> 84,300
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 26,752
<LONG-TERM-DEBT-CURRENT-PORT> 9
0
<CAPITAL-LEASE-OBLIGATIONS> 6,741
<LEASES-CURRENT> 17,957
<OTHER-ITEMS-CAPITAL-AND-LIAB> 828,759
<TOT-CAPITALIZATION-AND-LIAB> 2,381,054
<GROSS-OPERATING-REVENUE> 944,744
<INCOME-TAX-EXPENSE> 42,297
<OTHER-OPERATING-EXPENSES> 776,215
<TOTAL-OPERATING-EXPENSES> 818,512
<OPERATING-INCOME-LOSS> 126,232
<OTHER-INCOME-NET> (38,077)
<INCOME-BEFORE-INTEREST-EXPEN> 88,155
<TOTAL-INTEREST-EXPENSE> 56,356 <F2>
<NET-INCOME> 31,799
2,937
<EARNINGS-AVAILABLE-FOR-COMM> 28,862
<COMMON-STOCK-DIVIDENDS> 65,000 <F3>
<TOTAL-INTEREST-ON-BONDS> 46,439
<CASH-FLOW-OPERATIONS> 151,566
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
<F1> INCLUDES PREFERRED SECURITIES OF SUBSIDIARY OF $105,000.
<F2> INCLUDES DIVIDENDS ON PREFERRED SECURITIES OF SUBSIDIARY
<F2> OF $4,492.
<F3> REPRESENTS COMMON STOCK DIVIDENDS PAID TO PARENT CORPORATION.
</FN>
<PAGE>
</TABLE>
