SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM U5S
ANNUAL REPORT
For the Year Ended December 31, 1995
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, 1995
TABLE OF CONTENTS
Item
No. Title Page
1. System Companies and Investments Therein 1-5
2. Acquisitions or Sales of Utility Assets 6
3. Issue, Sale, Pledge, Guarantee or Assumption
of System Securities 7-10
4. Acquisition, Redemption or Retirement of
System Securities 11-14
5. Investments in Securities of Nonsystem Companies 15
6. Officers and Directors 16-30
7. Contributions and Public Relations 31-32
8. Service, Sales and Construction Contracts 33-36
9. Wholesale Generators and Foreign Utility Companies 37-54
10. Financial Statements and Exhibits:
Consolidating Financial Statements,
Schedules and Notes 55-66
Exhibits 67-98
Signature Page 99
<PAGE>
<TABLE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1995
Number of Common Shares
or Principal Amount % of Issuer Owner's
Name of Company Owned Voting Power Book Value Book Value
<CAPTION>
General Public Utilities Corporation (GPU):
<S> <C> <C> <C> <C>
Jersey Central Power & Light Company (JCP&L)(a) 15,371,270 shs. 100% $1,481,252,128 $1,481,252,128
JCP&L Preferred Capital, Inc. (t) 100 shs. 100 17,142,624 17,142,624
JCP&L Capital L.P. (h) 100 3,866,079 3,866,079
Metropolitan Edison Company (Met-Ed)(a)(b) 859,500 shs. 100 684,907,127 684,907,127
York Haven Power Company 500 shs. 100 11,991,333 11,991,333
Met-Ed Preferred Capital, Inc. 100 shs. 100 14,016,291 14,016,291
Met-Ed Capital L.P. (h) 100 3,092,899 3,092,899
Pennsylvania Electric Company (Penelec)(a)(b) 5,290,596 shs. 100 719,112,151 719,158,186
Nineveh Water Company 5 shs. 100 1,503,746 1,457,711
Waverly Electric Light & Power Company 600 shs. 100 60,000 15,000
Penelec Preferred Capital, Inc. 100 shs. 100 14,763,954 14,763,954
Penelec Capital L.P. (h) 100 3,247,524 3,247,524
GPU Service Corporation (GPUSC) (c) 5,000 shs. 100 (717,562) (717,562)
GPU Nuclear Corporation (GPUN) (d) 2,500 shs. 100 50,000 50,000
Energy Initiatives, Inc. (EI) (e) 100 shs. 100 126,966,889 126,966,889
Elmwood Energy Corporation (e) 10 shs. 100 7,744,000 7,744,000
Prime Energy Limited Partnership (e) (i) 50 14,728,252 7,485,330
Camchino Energy Corporation (e) 100 shs. 100 588,409 588,409
OLS Power Limited Partnership (e) (i) 50 (5,086,446) -
OLS Acquisition Corporation (e) 100 shs. 100 (5,077,236) (5,077,236)
OLS Energy - Berkeley (e) 1,000 shs. 100 (2,314,132) (2,314,132)
OLS Energy - Chino (e) 1,000 shs. 100 393,335 393,335
OLS Energy - Camarillo (e) 1,000 shs. 100 (3,121,964) (3,121,964)
Geddes Cogeneration Corporation (e) 100 shs. 100 17,140,179 17,140,179
Onondaga Cogeneration Limited Partnership (e) (i) 50 29,785,442 16,537,250
EI Selkirk, Inc. (e) 1,000 shs. 100 20,768,218 20,768,218
Selkirk Cogeneration Partners Limited
Partnership (e) (f) (p) 20 430,367 17,721,716
EI Canada Holding Limited (f) 1,000 shs. 100 177,735 177,735
EI Brooklyn Power Limited (f) 1,000 shs. 100 181,959 181,959
EI Brooklyn Investments Limited (f) 1,000 shs. 100 180,834 180,834
EI Services Canada Limited (f) 1,000 shs. 100 (4,573) (4,573)
Brooklyn Energy Limited Partnership (f)
(under construction at 12/31/95) (q) 75 (2,741,617) 182,308
-1-<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1995 (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 Energy, Inc. (e) 1,000 shs. 100 38,252,928 38,252,928
NCP Lake Power, Inc. (e) 1,000 shs. 100 276,768 276,768
NCP Gem, Inc. (e) 1,000 shs. 100 5,056,534 5,056,534
Lake Investment, L.P. (e) (k) 100 3,811,593 3,811,593
Lake Cogen, Ltd. (e) (l) 42 (9,050,999) 8,085,549
NCP Pasco, Inc. (e) 1,000 shs. 100 17,639,522 17,639,522
NCP Dade Power, Inc. (e) 1,000 shs. 100 596,642 596,642
Dade Investment, L.P. (e) (k) 100 16,632,852 16,632,852
Pasco Cogen, Ltd. (e) (m) 50 7,334,410 17,148,585
NCP Ada Power, Inc. (e) 1,000 shs. 100 262,792 262,792
Ada Cogeneration Limited Partnership (e) (n) 1 7,684,149 7,684,149
NCP Commerce Power, Inc. (e) 1,000 shs. 100 - -
FPB Cogeneration Partners Limited Partnership (e) (o) 30 3,203,770 -
Syracuse Orange Partners Limited Partnership (e) (r) 5 22,344,775 129,030
Project Orange Associates Limited Partnership (e) (s) 89 21,869,913 22,371,667
Umatilla Groves, Inc. (e) (Inactive) 1,000 shs. 100 - -
NCP Brooklyn Power, Inc. (f) (Inactive) 1,000 shs. 100 - -
NCP Houston Power, Inc. (e) 100 shs. 100 - -
NCP Perry, Inc. (e) 100 shs. 100 - -
Mid-Georgia Cogeneration, L.P. (e) (k) 100 - -
NCP New York, Inc. (e) (Inactive) 1,000 shs. 100 - -
Armstrong Energy Corporation (e) (Inactive) 100 shs. 100 - -
AEC/REF-Fuel, Limited Partnership (e) (Inactive) (j) 50 - -
EI Services, Inc. 100 shs. 100 - -
EI Fuels Corporation 100 shs. 100 - -
EI Power, Inc. (EI Power) (f) 100 shs. 100 34,113,057 34,113,057
Guaracachi America, Inc. (f) 100 shs. 100 34,206,914 34,206,914
Empresa Guaracachi S.A. (f) (v) 822,779 shs. 50 83,266,179 48,766,687
EI Barranquilla, Inc. (f) 100 shs. 100 (106,157) (106,157)
Termobarranquilla S.A. (f) (w) 420,592 shs. 26 (683,797) (157,030)
Barranquilla Lease Holding, Inc. (f) 100 shs. 100 12,100 12,100
Los Amigos Leasing Company, Ltd. (f) 12,000 shs. 100 12,000 12,000
EI International (f) (y) 99 shs. 100 (66,210) (66,210)
EI Services Colombia, Ltda. (f) 8,900 shs. 100 (67,155) (67,155)
Hanover Energy Corporation (f) (Inactive) 100 shs. 100 - -
EI Power (China), Inc. (f) (Inactive) 100 shs. 100 - -
China Power Partners, L.P. (f) (Inactive) (i) 50 - -
-2-<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1995 (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>
EI Power (China) I, Inc. (f) (Inactive) 100 shs. 100 - -
Ming Jiang Power Partners, L.P. (f) (Inactive) (i) 50 - -
EI Power (China) II, Inc. (f) (Inactive) 100 shs. 100 - -
Nanjing Power Partners, L.P. (f) (Inactive) (i) 50 - -
EI Power (China) III, Inc. (f) (Inactive) 100 shs. 100 - -
Zhuang He Power Partners, L.P. (f) (Inactive) (i) 50 - -
Austin Cogeneration Corporation (f) 100 shs. 100 - -
Austin Cogeneration Partners,
L.P. (f) (k) 100 - -
International Power Advisors,
Inc. (f) 100 shs. 100 - -
Colombian Installations, Inc. (f) (Inactive) 100 shs. 100 - -
EI Energy, Inc. (EI Energy) (g) (u) 100 shs. 100 47,808,507 47,808,507
Victoria Electric, Inc. (g) 100 shs. 100 111,897,375 111,897,375
Solaris Power (g) (x) 5,000,000 shs. 50 221,452,790 112,172,957
EI Australia Services Pty Ltd 10,000,000 shs. 100 124,480 124,480
-3-<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1995 (Continued):
Notes: (a) The business of these electric utility subsidiaries consists predominantly of the generation,
transmission, distribution and sale of electricity.
These utility 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 are independent power producers, which participate in some or all aspects of
promoting, developing, financing, constructing, owning, managing and operating nonutility qualifying
facilities.
(f) These subsidiaries are exempt wholesale generators (EWG) under the provisions of Section 32 of the Act.
These subsidiaries participate in some or all aspects of promoting, developing, financing, constructing,
owning, managing and operating generation facilities, both domestically and in foreign countries, the
electric energy from which is sold exclusively at wholesale.
(g) These subsidiaries are foreign utility companies (FUCO) under the provisions of the Energy Policy Act of
1992. These subsidiaries participate in some or all aspects of promoting, developing, financing,
constructing, owning, managing and operating generation, transmission and distribution facilities in
foreign countries.
(h) A 100% General Partnership interest.
(i) A 1% General Partnership and a 49% Limited Partnership interest.
(j) A 50% General Partnership interest.
(k) A 1% General Partnership and a 99% Limited Partnership interest.
(l) A 1% General Partnership and a 41% Limited Partnership interest.
(m) A 1% General Partnership and a 49% Limited Partnership interest.
(n) A 1% General Partnership interest.
-4-<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1995 (Continued):
(o) A 30% General Partnership interest.
(p) A 13.55% preferred equity interest and a 20% common equity interest.
(q) A 75% General Partnership interest.
(r) A 4.9% Limited Partnership interest.
(s) A 89% Limited Partnership interest.
(t) JCP&L Preferred Capital, Inc., a Delaware corporation organized on February 21, 1995, is the general
partner of JCP&L Capital L.P., a special-purpose partnership organized for the purpose of issuing monthly
income preferred securities.
(u) EI Energy, a Delaware corporation organized on October 19, 1995, is a FUCO under Section 33 of the Act.
EI Energy was organized to acquire interests in other FUCOs, to own and/or operate eligible facilities
(as defined in Section 33 of the Act) and to engage in project development activities for eligible
facilities.
(v) In July 1995, EI Power acquired from the Bolivian government, for approximately $47 million, a 50%
ownership interest in Empresa Guaracachi S.A., a Bolivian electric generating company having an aggregate
capacity of 216 MW of gas-fired and oil-fired generation.
(w) In October 1995, EI Power, along with its development partners, completed the financing for the
acquisition of a 240 MW gas-fired generating plant in Barranquilla, Colombia and the construction of a
new 750 MW gas-fired plant adjacent to the existing plant. Total project costs, including the
acquisition of the existing plant, are approximately $750 million, of which EI Power's equity
contribution could be up to $123 million.
(x) In November 1995, Victoria Electric, together with the Australian Gas Light Company, acquired Solaris
Power, an electric distribution company based in Melbourne, Australia, for a total purchase price of
approximately $712 million, of which Victoria Electric's 50% share was $356 million. EI Energy made an
equity investment in Solaris Power of approximately $112 million; the balance of the purchase price was
provided through borrowings by Solaris Power from an Australian bank syndicate. Solaris Power was sold
by the Government of Victoria through a competitive bid as part of that state's privatization of the
electric industry.
(y) Name changed from EI Cayman to EI International effective July 12, 1995. Also in 1995, all of the common
stock was transferred from EI to EI Power.
Note: In January 1996, GPU received approval from the SEC to form a new subsidiary, GPU Generation Corporation
(GPU Genco), to operate, maintain and repair the nonnuclear generation facilities of the electric utility
subsidiaries as well as construct any new nonnuclear generation facilities.
-5-<PAGE>
ITEM 2. ACQUISITIONS OR SALES OF UTILITY ASSETS
None.
-6-</TABLE>
<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)
<S> <C> <C> <C> <C> <C> <C>
Jersey Central Power & Light Company:
First Mortgage Bonds
designated Secured
Medium-Term Notes:
8.45% Series D, due 2025 JCP&L $ 50,000,000 03-23-95 $ 49,625,000(a) Rule 52
Total First Mortgage Bonds
designated Secured
Medium-Term Notes $ 50,000,000 $ 49,625,000
Performance Guarantees JCP&L $ 6,079,560(b) various n/a Rule 45
Notes: (a) All $50,000,000 p.a., 8.45% Series D, due March 23, 2025, were issued and sold on March 23, 1995, at face
value, pursuant to a Forty-sixth Supplemental Indenture dated April 1, 1993, resulting in proceeds of
$49,625,000, net of underwriters' commissions of $375,000.
(b) Represents unused letters of credit for workers compensation insurance ($5,817,000), and miscellaneous surety
bonds ($262,560).
-7-<PAGE>
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)
<S> <C> <C> <C> <C> <C> <C>
Metropolitan Edison Company:
First Mortgage Bonds:
6.10% Series, due 2021 Met-Ed $ 28,500,000 07-27-95 $ 28,286,250(a) Rule 52
Total First Mortgage Bonds $ 28,500,000 $ 28,286,250
First Mortgage Bonds
designated Secured
Medium-Term Notes:
8.05% Series C, due 2002 Met-Ed $ 30,000,000 03-01-95 $ 29,820,000(b) Rule 52
6.77% Series C, due 2005 Met-Ed 30,000,000 06-12-95 29,812,500(c) Rule 52
Total First Mortgage Bonds
designated Secured
Medium-Term Notes $ 60,000,000 $ 59,632,500
Performance Guarantees Met-Ed $13,184,265(d) various n/a Rule 45
Notes: (a) All $28,500,000 p.a., 6.10% Series, due July 15, 2021, were issued and sold on July 27, 1995, at face value,
pursuant to a Supplemental Indenture dated July 15, 1995, resulting in proceeds of $28,286,250, net of
underwriters' commissions of $213,750.
(b) All $30,000,000 p.a., 8.05% Series C, due March 1, 2002, were issued and sold on March 1, 1995, at face value,
pursuant to a Supplemental Indenture dated December 1, 1993, resulting in proceeds of $29,820,000, net of
underwriters' commissions of $180,000.
(c) All $30,000,000 p.a., 6.77% Series C, due June 13, 2005, were issued and sold on June 12, 1995, at face value,
pursuant to a Supplemental Indenture dated December 1, 1993, resulting in proceeds of $29,812,500, net of
underwriters' commissions of $187,500.
(d) Represents unused letters of credit for workers compensation insurance ($3,125,000), 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
surety bonds for various purposes ($1,665,317).
-8-<PAGE>
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)
<S> <C> <C> <C> <C> <C> <C>
Pennsylvania Electric Company:
First Mortgage Bonds:
5.35% Series, due 2010 Penelec $ 12,310,000 11-21-95 $ 12,229,985(a) Rule 52
5.80% Series, due 2020 Penelec 20,000,000 11-21-95 19,850,000(b) Rule 52
6.05% Series, due 2025 Penelec 25,000,000 11-21-95 24,812,500(c) Rule 52
5.35% Series, due 2010 Penelec 12,000,000 11-21-95 11,922,000(d) Rule 52
Total First Mortgage Bonds $ 69,310,000 $ 68,814,485
First Mortgage Bonds
designated Secured
Medium-Term Notes:
7.875% Series D, due 1998 Penelec $ 30,000,000 02-07-95 $ 29,895,000 (e) Rule 52
8.61% Series D, due 2025 Penelec 30,000,000 02-28-95 29,775,000 (f) Rule 52
7.53% Series D, due 2025 Penelec 40,000,000 10-13-95 39,700,000 (g) Rule 52
6.70% Series D, due 2005 Penelec 30,000,000 10-13-95 29,812,500 (h) Rule 52
Total $130,000,000 $129,182,500
Performance Guarantees Penelec $10,385,000(i) various n/a Rule 45
Notes: (a) All $12,310,000 p.a., 5.35% Series, due November 1, 2010, were issued and sold on November 21, 1995, at face
value, pursuant to a Supplemental Indenture dated November 1, 1995, resulting in proceeds of $12,229,985, net
of underwriters' commissions of $80,015.
(b) All $20,000,000 p.a., 5.80% Series, due November 1, 2020, were issued and sold on November 21, 1995, at face
value, pursuant to a Supplemental Indenture dated November 1, 1995, resulting in proceeds of $19,850,000, net
of underwriters' commissions of $150,000.
(c) All $25,000,000 p.a., 6.05% Series, due November 1, 2025, were issued and sold on November 21, 1995, at face
value, pursuant to a Supplemental Indenture dated November 1, 1995, resulting in proceeds of $24,812,500, net
of underwriters' commissions of $187,500.
-9-<PAGE>
ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM SECURITIES (Continued):
(d) All $12,000,000 p.a., 5.35% Series, due November 1, 2010, were issued and sold on November 21, 1995, at face
value, pursuant to a Supplemental Indenture dated November 1, 1995, resulting in proceeds of $11,922,000, net
of underwriters' commissions of $78,000.
(e) All $30,000,000 p.a., 7.875% Series D, due February 9, 1998, were issued and sold on February 7, 1995, at face
value, pursuant to a Supplemental Indenture dated June 1, 1993, resulting in proceeds of $29,895,000, net of
underwriters' commissions of $105,000.
(f) All $30,000,000 p.a., 8.61% Series D, due March 3, 2025, were issued and sold on March 1, 1995, at face value,
pursuant to a Supplemental Indenture dated June 1, 1993, resulting in proceeds of $29,775,000, net of
underwriters' commissions of $225,000.
(g) All $40,000,000 p.a., 7.53% Series D, due October 14, 2025, were issued and sold on October 13, 1995, at face
value, pursuant to a Supplemental Indenture dated June 1, 1993, resulting in proceeds of $39,700,000, net of
underwriters' commissions of $300,000.
(h) All $30,000,000 p.a., 6.70% Series D, due October 13, 2005, were issued and sold on October 13, 1995, at face
value, pursuant to a Supplemental Indenture dated June 1, 1993, resulting in proceeds of $29,812,500, net of
underwriters' commissions of $187,500.
(i) Represents unused letters of credit for workers compensation insurance ($6,697,000), a surety bond relating to
motor vehicles ($1,000,000), and miscellaneous letters of credit and surety bonds for various purposes
($2,688,000).
-10-</TABLE>
<PAGE>
<TABLE>
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES
<CAPTION>
Name of Company Acquiring Authorization
Name of Issuer or Retiring Securities Consideration Disposition or Exemption
<S> <C> <C> <C> <C>
JCP&L:
First Mortgage Bonds JCP&L $ 47,430,000 Retired Rule 42
Cumulative Preferred Stock JCP&L 6,048,600 Retired Rule 42
Total $ 53,478,600
Met-Ed:
First Mortgage Bonds Met-Ed $ 40,500,000 Retired Rule 42
Penelec:
First Mortgage Bonds Penelec $100,161,487 Retired Rule 42
NOTE: See pages 12 to 14 for a detailed description of the above transactions.
-11-<PAGE>
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:
4 7/8% Series, due 1995 JCP&L $ 17,430,000 11-01-95 $ 17,430,000 (a) Rule 42
8.64% Series, due 1995 JCP&L 5,000,000 12-11-95 5,000,000 (b) Rule 42
8.70% Series, due 1995 JCP&L 25,000,000 12-12-95 25,000,000 (c) Rule 42
Total First Mortgage Bonds $ 47,430,000 $ 47,430,000
Cumulative Preferred Stock:
7.52% Series K JCP&L $ 6,000,000 05-04-95 $ 6,048,600 (d) Rule 42
Notes: (a) All $17,430,000 p.a., 4 7/8% Series, due November 1, 1995, were retired on November 1, 1995 pursuant to the
Twelfth Supplemental Indenture dated November 1, 1965, at a cost of $17,430,000.
(b) All $5,000,000 p.a., 8.64% Series, due December 11, 1995, were retired on December 11, 1995 pursuant to the
Forty-second Supplemental Indenture dated July 1, 1989, at a cost of $5,000,000.
(c) All $25,000,000 p.a., 8.70% Series, due December 12, 1995, were retired on December 12, 1995 pursuant to the
Forty-second Supplemental Indenture dated July 1, 1989, at a cost of $25,000,000.
(d) 7.52% Series K, $6,000,000 (stated value $100 per share) (60,000 shares), were redeemed on May 4, 1995 at a
cost of $6,048,600 (call premium of .81%).
-12-<PAGE>
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>
Metropolitan Edison
Company
First Mortgage Bonds:
4 5/8% Series, due 1995 Met-Ed $ 12,000,000 07-01-95 $ 12,000,000 (a) Rule 42
10.50% Series, due 1995 Met-Ed 28,500,000 09-01-95 28,500,000 (b) Rule 42
Total First Mortgage Bonds $ 40,500,000 $ 40,500,000
Notes: (a) All $12,000,000 p.a., 4 5/8% Series, due July 1, 1995, were retired on July 1, 1995 pursuant to the
Supplemental Indenture dated July 1, 1965, at a cost of $12,000,000.
(b) All $28,500,000 p.a., 10.50% Series, due September 1, 1995, were retired on September 1, 1995 pursuant to the
Supplemental Indenture dated September 1, 1985, at a cost of $28,500,000.
-13-<PAGE>
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>
Pennsylvania Electric
Company
First Mortgage Bonds:
8.72% Series, due 1999 Penelec $ 30,000,000 11-13-95 $ 30,087,200 (a) Rule 42
7 3/4% Series, due 2006 Penelec 12,000,000 12-29-95 12,459,833 (b) Rule 42
6 1/8% Series, due 2007 Penelec 12,310,000 12-29-95 12,368,643 (c) Rule 42
8 3/8% Series, due 2015 Penelec 20,000,000 12-29-95 20,129,387 (d) Rule 42
6 1/2% Series, due 2016 Penelec 25,000,000 12-29-95 25,116,424 (e) Rule 42
Total First Mortgage Bonds $ 99,310,000 $100,161,487
Notes: (a) All $30,000,000 p.a., 8.72% Series, due August 8, 1999, were retired on November 13, 1995 pursuant to the
Supplemental Indenture dated May 1, 1989, at a cost of $30,000,000, plus $87,200 accrued interest.
(b) All $12,000,000 p.a., 7 3/4% Series, due July 1, 2006, were retired on December 29, 1995 pursuant to the
Supplemental Indenture dated July 1, 1976, at a cost of $12,000,000, plus $459,833 accrued interest.
(c) All $12,310,000 p.a., 6 1/8% Series, due December 1, 2007, were retired on December 29, 1995 pursuant to the
Supplemental Indenture dated December 1, 1977, at a cost of $12,310,000, plus $58,643 accrued interest.
(d) All $20,000,000 p.a., 8 3/8% Series, due December 1, 2015, were retired on December 29, 1995 pursuant to the
Trust Indenture dated December 1, 1985, at a cost of $20,000,000, plus $129,387 accrued interest.
(e) All $25,000,000 p.a., 6 1/2% Series, due December 1, 2016, were retired on December 29, 1995 pursuant to the
First Supplemental Indenture dated December 1, 1986, at a cost of $25,000,000, plus $116,424 accrued
interest.
-14-</TABLE>
<PAGE>
<TABLE>
ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES AS OF DECEMBER 31, 1995
<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 260,298 Less than 1% Insurance $1,325,572 (1)
Polsky Energy Nonutility
Corporation Stock 2,800 (2) 9.90% Generation 6,037,725
Waterford
Development
Corporation Stock 50 6.25% (3) 5,000
Greater Reading Limited
Development Partnership
Partnership Interest - 5.63% (4) 100,000
(1) Excludes an adjustment for unrealized gain on investment (FASB 115) of $9,021,274.
(2) Includes 1,894 nonvoting shares.
(3) 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.
(4) 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.
-15-</TABLE>
<PAGE>
<TABLE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. AS OF DECEMBER 31, 1995
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
EI EI GPU
GPU EI POWER ENERGY (G) GPUSC GPUN GENCO
J. R. Leva (A) CH-P-D CH-D CH-D CH-D CH-P-D CB-D CH-D
L. J. Appell, Jr.
Susquehanna Pfaltzgraff, York, PA D
T. H. Black
Ingersoll-Rand Co., Woodcliff Lake, NJ 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 (A) (R) AS AS
F. A. Donofrio (A) VP-C SVP-D
J. G. Graham (A) (I) (S) SVP D D D EVP-D VP
T. G. Howson (A) (U) VP-T VP-T VP-T
I. H. Jolles (A) (J) (T) SVP D D D EVP-D
M. A. Nalewako (A) (X) S S AS
S. H. Somich (A) (Y) AT AT AT
-16-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. AS OF DECEMBER 31, 1995
<CAPTION>
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
YORK
HAVEN NINEVEH WAVERLY
POWER WATER ELEC.
JCP&L (K) MET-ED PENELEC (L) CO. CO. CO. SAXTON
J. R. Leva (A) CB-D CB-D CB-D
L. J. Appell, Jr.
Susquehanna Pfaltzgraff, York, PA
T. H. Black
Ingersoll-Rand Co., Woodcliff Lake, NJ
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 (A) (R)
F. A. Donofrio (A)
J. G. Graham (A) (I) (S) VP-D VP-D VP-D
T. G. Howson (A) (U) VP-T VP-T VP-T VP-T VP-T T T T
I. H. Jolles (A) (J) (T)
M. A. Nalewako (A) (X) AS AS AS AS AS
S. H. Somich (A) (Y) AT AT AT
-17-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1995
<CAPTION>
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
<S> <C> <C> <C> <C> <C> <C> <C> <C>
EI EI GPU
GPU EI POWER ENERGY (G) GPUSC GPUN GENCO
R. C. Arnold (A) (Z) EVP-D
R. C. Black (A) VP
P. R. Chatman (A) AC AC
F. Dominguez (A) VP
D. Furlong (A) AC
C. A. Mansfield
GPUSC, Washington, DC VP
C. A. Mascari (A) VP
P. C. Mezey (A) D D D SVP
C. Mignon (B) VP
R. J. Postweiler (A) VP
S. C. Thomas (B) VP
S. A. Weiner (A) VP
D. C. Brauer (C) VP-T VP-T VP-T VP-T
M. Filewicz (C) AS AS AS AS
R. J. Guy (C) VP VP VP VP
B. L. Levy (C) (H) (W) P-D P-D P-D P-D
J. A. McTear (C) VP VP VP VP
-18-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1995
<CAPTION>
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
YORK
HAVEN NINEVEH WAVERLY
POWER WATER ELEC.
JCP&L (K) MET-ED PENELEC (L) CO. CO. CO. SAXTON
R. C. Arnold (A) (Z) D D D
R. C. Black (A)
P. R. Chatman (A) AC AC AC
F. Dominguez (A)
D. Furlong (A)
C. A. Mansfield
GPUSC, Washington, DC
C. A. Mascari (A)
P. C. Mezey (A)
C. Mignon (B)
R. J. Postweiler (A)
S. C. Thomas (B)
S. A. Weiner (A)
D. C. Brauer (C)
M. Filewicz (C)
R. J. Guy (C)
B. L. Levy (C) (H) (W)
J. A. McTear (C)
-19-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1995
<CAPTION>
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
<S> <C> <C> <C> <C> <C> <C> <C> <C>
EI EI GPU
GPU EI POWER ENERGY (G) GPUSC GPUN GENCO
K. Tomblin (C) S S S S
P. R. Clark (C) (M) D P-D
W. A. Wilson
ICC Technologies, Philadelphia, PA D
J. J. Barton (N)
O.C. NS, Forked River, NJ VP
T. G. Broughton (C) (O) VP
J. D. Townsend
Sedona, AZ D
C. Clawson (C) VP
R. W. Keaton (C) VP
J. Knubel (C)
TMI-1, Middletown, PA VP
R. L. Long (C) VP-D
P. E. Maricondo (C) VP-C
R. S. Renzi (C) AS
M. B. Roche (C) VP
J. F. Wilson (C) S
G. A. Kuehn (C)
-20-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1995
<CAPTION>
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
YORK
HAVEN NINEVEH WAVERLY
POWER WATER ELEC.
JCP&L (K) MET-ED PENELEC (L) CO. CO. CO. SAXTON
K. Tomblin (C)
P. R. Clark (C) (M) D
W. A. Wilson
ICC Technologies, Philadelphia, PA
J. J. Barton (N)
O.C. NS, Forked River, NJ
T. G. Broughton (C) (O)
J. D. Townsend
Sedona, AZ
C. Clawson (C)
R. W. Keaton (C)
J. Knubel (C)
TMI-1, Middletown, PA
R. L. Long (C) VP-D
P. E. Maricondo (C)
R. S. Renzi (C)
M. B. Roche (C) D
J. F. Wilson (C) S
G. A. Kuehn (C) VP
-21-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1995
<CAPTION>
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
<S> <C> <C> <C> <C> <C> <C> <C> <C>
EI EI GPU
GPU EI POWER ENERGY (G) GPUSC GPUN GENCO
D. Baldassari (D) D D 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 (D)
C. R. Fruehling (D)
C. A. Marks (D)
E. J. McCarthy (D)
M. P. Morrell (D) (CC)
D. W. Myers (D)
J. J. Westervelt (D)
F. D. Hafer (E) D D D
W. A. Boquist (E)
D. L. O'Brien (E)
D. M. O'Brien-Groff (E)
R. J. Toole (D) (E) (P)
-22-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1995
<CAPTION>
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
YORK
HAVEN NINEVEH WAVERLY
POWER WATER ELEC.
JCP&L (K) MET-ED PENELEC (L) CO. CO. CO. SAXTON
D. Baldassari (D) P-D P-D CB-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 (D) S S
C. R. Fruehling (D) VP
C. A. Marks (D) AS AS
E. J. McCarthy (D) VP
M. P. Morrell (D) (CC) VP-D
D. W. Myers (D) VP-C-D
J. J. Westervelt (D) VP
F. D. Hafer (E) P-D P-D P-D P-D P-D
W. A. Boquist (E) VP VP S-D
D. L. O'Brien (E) C C C C C
D. M. O'Brien-Groff (E) AS AS AS
R. J. Toole (D) (E) (P) VP VP-D P-D
-23-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1995
<CAPTION>
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
<S> <C> <C> <C> <C> <C> <C> <C> <C>
EI EI GPU
GPU EI POWER ENERGY (G) GPUSC GPUN GENCO
R. S. Zechman (E)
J. B. DeAngelo (E)
L. A. Lenhart (B)
V. D. Schimoler, Jr. (E)
D. Weaver (E)
R. L. Wise (F) (AA) D D D P-D D P-D
C. Brooks (F) (Q) VP
J. F. Furst (E)
J. G. Herbein (F) (BB)
R. J. Vodzack (F) (V)
W. C. Matthews (E)
G. R. Repko (E)
C. B. Snyder (E)
J. L. Greco (E)
-24-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1995
<CAPTION>
NAMES OF SYSTEM COMPANIES WITH WHICH CONNECTED
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
YORK
HAVEN NINEVEH WAVERLY
POWER WATER ELEC.
JCP&L (K) MET-ED PENELEC (L) CO. CO. CO. SAXTON
R. S. Zechman (E) VP VP D
J. B. DeAngelo (E) D
L. A. Lenhart (B) T
V. D. Schimoler, Jr. (E) C
D. Weaver (E) VP
R. L. Wise (F) (AA) P-D
C. Brooks (F) (Q)
J. F. Furst (E) VP VP D
J. G. Herbein (F) (BB) VP-D VP-D D
R. J. Vodzack (F) (V) AC
W. C. Matthews (E) S S S S S
G. R. Repko (E) VP VP-D VP-D
C. B. Snyder (E) VP VP
J. L. Greco (E) D
-25-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1995
(A) Address is 100 Interpace Parkway, Parsippany, NJ.
(B) Address is Rt. 183 & Van Reed Road, Reading, PA.
(C) Address is One Upper Pond Road, Parsippany, NJ.
(D) Address is 300 Madison Avenue, Morristown, NJ.
(E) Address is 2800 Pottsville Pike, Muhlenberg Township, PA.
(F) Address is 1001 Broad Street, Johnstown, PA.
(G) Includes the following EI Group 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 International, EI Fuels
Corporation, EI Services, Inc., Hanover Energy Corporation, EI Power China, Inc., EI Power China I, Inc., EI Power
China II, Inc., EI Power China III, Inc., Guaracachi America, Inc., EI Barranquilla, Inc., Barranquilla Lease
Holding, Inc., Los Amigos Leasing Company, Ltd., Austin Cogeneration Corporation, International Power Advisors,
Inc., Colombian Installations, Inc., and Victoria Electric, Inc.
(H) B. L. Levy is also Director of Empresa Guaracachi S.A., Solaris Power, Termobarranquilla S.A. and EI Australia
Services Pty Ltd.
(I) J. G. Graham is also Alternate Director of Empresa Guaracachi S.A. and Director of Solaris Power.
(J) I. H. Jolles is also Director of Empresa Guaracachi S.A. and Solaris Power.
(K) Includes the following companies: JCP&L Preferred Capital, Inc., and JCP&L Capital, L.P.
(L) Includes the following companies: Met-Ed Preferred Capital, Inc., Met-Ed Capital, L.P., Penelec Preferred
Capital, Inc., and Penelec Capital, L.P.
(M) P. R. Clark retired on December 31, 1995 from all positions in the GPU System.
(N) J. J. Barton retired on December 31, 1995 as Vice President of GPUN.
-26-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1995
(O) T. G. Broughton was elected President and Director of GPUN, and Director of GPUSC, GPU Genco and Saxton on January
1, 1996.
(P) R. J. Toole was elected Vice President of Penelec effective January 29, 1996. He was also elected Vice President
of GPU Genco effective February 12, 1996 and Director of GPU Genco effective February 13, 1996.
(Q) C. Brooks was elected Vice President of GPU Genco effective February 12, 1996. He also resigned his position at
GPUSC effective March 1, 1996.
(R) S. K. Cepeda was elected Assistant Secretary of GPU Genco effective February 12, 1996.
(S) J. G. Graham was elected Director of GPU Genco effective February 13, 1996.
(T) I. H. Jolles was elected Director of GPU Genco effective February 13, 1996.
(U) T. G. Howson was elected Vice President and Treasurer of GPU Genco effective February 12, 1996.
(V) R. J. Vodzack was elected Chief Accounting Officer - Assistant Comptroller of GPU Genco effective February 12,
1996. He also resigned his position at Penelec effective March 1, 1996.
(W) B. L. Levy was elected Director of GPU Genco effective February 13, 1996.
(X) M. A. Nalewako was elected Secretary of GPU Genco effective February 12, 1996.
(Y) S. H. Somich was elected Assistant Treasurer of GPU Genco effective February 12, 1996.
(Z) R. C. Arnold was elected Director of GPU Genco effective February 13, 1996.
(AA) R. L. Wise resigned his position as President - Fossil Fuels of GPUSC effective March 1, 1996.
(BB) J. G. Herbein retired on December 31, 1995 from all positions in the GPU System.
(CC) Effective April 30, 1995, M. P. Morrell resigned from all positions in the GPU System.
-27-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1995
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
-28-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
Part II. AS OF DECEMBER 31, 1995
<CAPTION>
<S> <C> <C> <C>
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
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
-29-<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.
-30-</TABLE>
<PAGE>
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS
Name of Company Account
Name of Beneficiary Purpose Charged Amount
Jersey Central Power & Light Company:
Salary and Expenses - Public
Affairs Activities (2) (3) $817,407
MMW Strategic Communications (2) (3) 274,566
Aberdeen Municipalization Project (2) (3) 263,543
Edison Electric Institute - Dues (1) (3) & (4) 42,662
Edison Electric Institute - Media
Communication Fund (1) (4) 91,125
Edison Electric Institute -
Hydroelectric Program (1) (4) 6,278
O.C.E.A.N., Inc. (1) (3) 60,000
Norwescap, Inc. (1) (3) 40,000
Utility Solid Waste Activities (1) (4) 11,714
Utility Water Act Group (1) (4) 7,625
3 Beneficiaries (1) (3) & (4) 2,495
Company total $1,617,415
Metropolitan Edison Company:
Salary & Expenses - Public
Affairs Activities (2) (3) $428,197
Edison Electric Institute - Dues (1) (3) & (4) 29,456
Edison Electric Institute - Media
Communication Fund (1) (4) 56,142
Edison Electric Institute -
Hydroelectric Program (1) (4) 2,987
Project Good Neighbor (1) (3) 99,525
Progress and Freedom Fund (1) (3) 20,000
Utility Solid Waste Activities (1) (4) 11,714
Utility Water Act Group (1) (4) 3,656
6 Beneficiaries (1) & (2) (3) & (4) 9,900
Company total $661,577
Pennsylvania Electric Company:
Salary & Expenses - Public Affairs
Activities (2) (3) $495,238
Edison Electric Institute - Dues (1) (3) & (4) 29,153
Edison Electric Institute - Media
Communication Fund (1) (4) 62,217
Edison Electric Institute -
Hydroelectric Program (1) (4) 3,735
Project Good Neighbor (1) (3) 133,102
Utility Solid Waste Activities (1) (4) 11,714
Utility Water Act Group (1) (4) 4,503
4 Beneficiaries (1) & (2) (3) & (4) 9,533
Company total $749,195
Total for all Companies $3,028,187
-31-
<PAGE>
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS (Continued):
Notes: (1) Contribution or membership fee.
(2) Public relations services.
(3) Income deduction.
(4) Operating expense.
-32-<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 $ 284
" Penelec 321
Phillipsburg building costs
allocated to Corporate Plant
Accounting Department JCP&L GPUSC 143
Application Development for Market
Star - DSMIS/ENSTAR Software Program JCP&L Met-Ed 112
" Penelec 111
Costs associated with providing
storm restoration work JCP&L Penelec 488
Interchange of materials JCP&L Met-Ed 4
" Penelec 39
Engineering assistance provided
to Portland and Titus Stations JCP&L Met-Ed 56
Costs associated with the Cataloging
Department for services provided JCP&L Met-Ed 17
" Penelec 36
Costs related to the Insurance &
Claims Dept. for services provided JCP&L Met-Ed 57
" Penelec 55
Services provided by JCP&L employee
temporarily reassigned to Penelec's
Purchasing Department JCP&L Penelec 63
Other JCP&L GPUN 23
" GPUSC 19
" Met-Ed 27
" Penelec 9
" EI Group 5
Total JCP&L $1,869
-33-
<PAGE>
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS: (Continued)
Part I. (Continued)
Serving Receiving
Transaction Company Company Compensation
(In Thousands)
Cost incurred by Reprographics
Department for services provided Met-Ed GPUN $ 89
" GPUSC 233
" JCP&L 499
" Penelec 317
Costs incurred for the operation
and maintenance of JCP&L owned
capacitors at TMI & Hosensack Met-Ed JCP&L 56
Costs associated with the
operation and maintenance of the
Mobile Generator Transformer Met-Ed JCP&L 21
" Penelec 24
Misc. services provided GPUN/TMI
(includes remote reporting) Met-Ed GPUN 559
Engineering services related to
the Solaris Power acquisition Met-Ed EI Group 287
Other Met-Ed GPUN 23
" GPUSC 67
" JCP&L 5
" Penelec 5
" EI Group 3
Total Met-Ed $2,188
-34-<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 $ 82
" GPUSC 26
" Met-Ed 69
" JCP&L 64
Costs associated with GPU System
consolidated Fuels Department Penelec Met-Ed 65
" JCP&L 7
Costs associated with providing
specific technical and general
engineering services Penelec Met-Ed 204
" JCP&L 145
R&D costs Penelec Met-Ed 87
" JCP&L 87
Costs associated with the Yards
Creek penstock coating Penelec JCP&L 71
Vehicle usage Penelec GPUSC 4
Met-Ed 44
" JCP&L 5
Costs associated with providing
storm restoration work Penelec Met-Ed 35
Costs associated with business
office data verification and
cleanup Penelec Met-Ed 30
Engineering services related to
various EI Group projects Penelec EI Group 49
Other Penelec GPUN 11
" GPUSC 5
" Met-Ed 19
" JCP&L 14
Total Penelec $1,123
-35-
<PAGE>
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS: (Continued)
Part I. (Continued)
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.
-36-<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Selkirk, Inc. and Selkirk Cogeneration Partners Limited Partnership
Part I.
(a) At December 31, 1995, Energy Initiatives, Inc. (EI), through its wholly-
owned subsidiary EI Selkirk, Inc., owned a 13.55% preferred interest and
a 20% common interest in Selkirk Cogeneration Partners Limited
Partnership (Selkirk).
Selkirk is a Delaware limited partnership and was formed for the purpose
of constructing, owning and operating two natural gas-fired combined-
cycle cogeneration facilities located in Bethlehem, New York. The
facilities are 79.9 and 26.5 megawatts (MW) each with a combined average
net capacity of 344.9 MW producing steam and electricity.
(b) General Public Utilities Corporation (GPU), indirectly through its
wholly-owned subsidiary EI, has invested $20,285,793 in Selkirk.
(c) Ratio of debt to common equity of Selkirk - 256:1
Accumulated losses of Selkirk - $(40,208,495)
(d) None.
Part II.
An organizational chart showing the relationship of Energy Initiatives, Inc.
to Selkirk is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
Selkirk Cogeneration Partners Limited Partnership as of and for the year ended
December 31, 1995 are provided in Exhibit I-1.
-37-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Canada Holding Limited, EI Brooklyn Power Limited, EI Brooklyn Investments
Limited, EI Services Canada Limited and Brooklyn Energy Limited Partnership
Part I.
(a) At December 31, 1995, Energy Initiatives, Inc. (EI), through its wholly-
owned subsidiaries EI Canada Holding Limited, EI Brooklyn Power Limited
and EI Brooklyn Investments Limited, 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) GPU, indirectly through its wholly-owned subsidiary EI, capitalized
$182,308 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 of BELP - EI has not made equity
contributions to BELP as of December 31, 1995. EI will contribute its
C $12.9 million to partnership equity upon commercial operation of the
BELP facility.
Accumulated losses of BELP - $(2,504,453).
(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 Limited (ESC), a wholly-owned subsidiary of EI, is
currently negotiating an operation 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 and ESC as of and for the year ended December 31, 1995 are provided in
Exhibit I-1.
-38-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Power, Inc.
Part I.
(a) At December 31, 1995, 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) GPU has invested $33,000,000 in EI Power, Inc.
(c) Ratio of debt to common equity - Not applicable.
Accumulated earnings - $1,113,057.
(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-1.
The financial statements for EI Power, Inc. are provided in Exhibit F-2 of
this Form U5S.
-39-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
Guaracachi America, Inc. and Empresa Guaracachi S.A.
Part I.
(a) At December 31, 1995, EI Power, Inc., through its wholly-owned subsidiary
Guaracachi America, Inc., owned 50% of Empresa Guaracachi S.A.
Empresa Guaracachi S.A. is a Bolivian corporation having three facilities
located in Bolivia in and around the cities of Santa Cruz, Sucre and
Potosi. It is an electric generating company having an aggregate
capacity of 216 megawatts.
(b) GPU, through its wholly-owned subsidiary EI Power, Inc., invested
$47,131,000 in Empresa Guaracachi S.A. The investment was funded by a
capital contribution from GPU of $33,000,000 and borrowings of
$14,131,000.
(c) Ratio of debt to common equity of Empresa Guaracachi S.A. - .848:1
Accumulated earnings of Empresa Guaracachi S.A. - $921,672.
(d) None.
Part II.
An organizational chart sharing the relationship of EI Power, Inc. to Empresa
Guaracachi S.A. is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
Empresa Guaracachi S.A. as of and for the year ended December 31, 1995 are
provided in Exhibit I-1.
-40-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Barranquilla, Inc. and Termobarranquilla S.A.
Part I.
(a) At December 31, 1995, EI Power, Inc., through its wholly-owned subsidiary
EI Barranquilla, Inc., owned a 29% interest in Termobarranquilla S.A.
Empresa de Servicios Publicos (TEBSA).
TEBSA is a 240 megawatt gas-fired generating plant located in
Barranquilla, Colombia. In addition, a new 750 megawatt gas-fired plant
is being constructed adjacent to the existing plant. Electricity
generated by these plants will be sold to Corporacion Electrica de la
Costa Atlantica (Corelca) under a 20-year contract. Total project costs,
including the acquisition of the existing plant, are approximately $750
million, of which EI Power, Inc.'s equity contribution is expected to be
approximately $65 million.
(b) As of December 31, 1995, GPU had not invested, either directly or
indirectly, any capital into the project.
As of October 18, 1995, a guarantee of amounts up to $122,750,000 was
made by GPU for the benefit of the Bankers Trust Company as collateral
agent on behalf of the Equity Bridge Lenders and the Secured Parties in
connection with the Barranquilla, Colombia acquisition.
(c) Ratio of debt to common equity of TEBSA - Not
applicable.
Accumulated losses of TEBSA - $(2,584,872)
(d) See EI Services Colombia, Ltda. Item I, Part (d).
Part II.
An organization chart showing the relationship of EI Power, Inc. to TEBSA is
provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
TEBSA as of and for the year ended December 31, 1995 are provided in Exhibit
I-1.
-41-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
Barranquilla Lease Holding, Inc. and Los Amigos Leasing Company, Ltd.
Part I.
(a) At December 31, 1995, EI Power, Inc., through its wholly-owned subsidiary
Barranquilla Lease Holding, Inc., owned a 100% interest in Los Amigos
Leasing Company, Ltd. (Leaseco).
Leaseco, which is a Bermuda corporation, has begun to procure equipment
to be used by and leased to TEBSA. Pursuant to a lease agreement,
Leaseco will deliver certain non-Colombian equipment related to TEBSA,
and TEBSA will make lease payments equal to the interest and principal
payments of Leaseco.
(b) GPU, indirectly through its wholly-owned subsidiary EI Power, Inc., has
invested $12,000 in Leaseco to capitalize the company.
(c) Ratio of debt to common equity of Leaseco - 6,050:1
Accumulated earnings of Leaseco - None.
(d) Pursuant to the lease agreement, Leaseco will deliver certain non-
Colombian equipment related to the project to TEBSA during the
construction period. TEBSA will lease the imported equipment from
Leaseco during an interim lease term during the construction period and
subsequently during a 15 year basic lease term. During the interim lease
term, TEBSA will pay rent to Leaseco to reimburse it for certain
expenses, including interest incurred during construction. During the
basic lease term, TEBSA will make lease payments equal to the interest
and principal payments of Leaseco.
Part II.
An organizational chart showing the relationship of EI Power, Inc. to Leaseco
is provided in exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
Leaseco as of and for the year ended December 31, 1995 are provided in Exhibit
I-1.
-42-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI International and EI Services Colombia, Ltda.
Part I.
(a) At December 31, 1995, EI Power, Inc., through its wholly-owned subsidiary
EI International, owned a 100% interest in EI Services Colombia, Ltda.
EI Services Colombia, Ltda. has entered into an operation and maintenance
(O&M) agreement with TEBSA to provide management services to TEBSA over
its 20-year contract with Corelca. Fees for these management services
are in accordance with the terms and conditions of the O&M agreement.
(b) GPU, indirectly through its wholly-owned subsidiary EI Power, Inc., has
invested $10,000 in EI Services Colombia, Ltda. to capitalize the
company.
EI has guaranteed the obligations of EI Power, Inc.'s subsidiaries, EI
Services Colombia, Ltda. and International Power Advisors, Inc. (the
Operators), under the O&M agreement in the TEBSA project. Pursuant to
the guarantee, EI has guaranteed the performance of the Operators, of
which the limit of liability is $5,000,000.
(c) Ratio of debt to common equity of EI Services Colombia, Ltda. - Not
applicable.
Accumulated losses of EI Services Colombia, Ltda. - $(77,155).
(d) See (a) above.
Part II.
An organizational chart showing the relationship of EI Power, Inc. to EI
Services Colombia, Ltda. is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
EI Services Colombia, Ltda. as of and for the year ended December 31, 1995 are
provided in Exhibit I-1.
-43-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
Hanover Energy Corporation
Part I.
(a) At December 31, 1995, 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, 1995.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of EI Power, Inc. to Hanover
Energy Corporation is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
-44-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Power (China), Inc. and China Power Partners, L.P.
Part I.
(a) At December 31, 1995, EI Power, Inc. through its wholly-owned subsidiary
EI Power (China), Inc., owned a 49% limited partnership interest and a 1%
general partnership interest in China Power Partners, L.P.
China Power Partners, L.P. is a Delaware limited partnership established
to make future investments in EWG's in China.
(b) None.
(c) Ratio of debt to common equity - EI Power, Inc. has not made equity
contributions to EI Power (China), Inc. or China Power Partners, L.P. as
of December 31, 1995.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of EI Power, Inc. to China
Power Partners L.P. is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
-45-
<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, 1995, 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, 1995.
Accumulated earnings - 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-1.
Exhibit I-1 - Not applicable.
-46-
<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, 1995, 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, 1995.
Accumulated earnings - 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-1.
Exhibit I-1 - Not applicable.
-47-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Power (China) III, Inc. and Zhuang He Power Partners, L.P.
Part I.
(a) At December 31, 1995, EI Power, Inc. through its wholly-owned subsidiary
EI Power (China) III, Inc., owned a 49% limited partnership interest and
a 1% general partnership interest in Zhuang He Power Partners, L.P.
Zhuang He Power Partners, L.P. is a Delaware limited partnership
established to make future investments in EWG's 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. or Zhuang He Power Partners,
L.P. as of December 31, 1995.
Accumulated earnings - 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-1.
Exhibit I-1 - Not applicable.
-48-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
Austin Cogeneration Corporation and Austin Cogeneration Partners, L.P.
Part I.
(a) At December 31, 1995, EI Power, Inc., through its wholly-owned subsidiary
Austin Cogeneration Corporation, owned a 99% limited partnership interest
and a 1% general partnership interest in Austin Cogeneration Partners,
L.P.
Austin Cogeneration Partners, L.P. is a Delaware limited partnership
established to invest in EWGs and qualifying facilities.
(b) None.
(c) Ratio of debt to common equity - EI Power, Inc. has not made equity
contributions to Austin Cogeneration Corporation or Austin Cogeneration
Partners, L.P. as of December 31, 1995.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of EI Power, Inc. to Austin
Cogeneration Partners, L.P. is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
-49-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
International Power Advisors, Inc.
Part I.
(a) At December 31, 1995, EI Power, Inc. owned 100% of International Power
Advisors, Inc. (IPA), a Delaware corporation established to provide
technical services to EWGs.
IPA has entered into an operation and maintenance (O&M) agreement with
TEBSA to provide technical services and technical assistance in the O&M
of the generating facilities of TEBSA. Fees for these services are
in accordance with the terms and conditions of the O&M agreement.
(b) None.
(c) Ratio of debt to common equity - EI Power, Inc. has not made equity
contributions to IPA as of December 31, 1995.
Accumulated earnings - None.
(d) See (a) above.
Part II.
An organizational chart showing the relationship of EI Power, Inc. to
International Power Advisors, Inc. is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
-50-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
Colombian Installations, Inc.
Part I.
(a) At December 31, 1995, EI Power, Inc. owned 100% of Colombian
Installations, Inc., a Delaware 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 Colombian Installations, Inc. as of December 31, 1995.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of EI Power, Inc. to
Colombian Installations, Inc. is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
-51-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
FOREIGN UTILITY COMPANIES (FUCO):
EI Energy, Inc.
Part I.
(a) At December 31, 1995, GPU owned 100% of EI Energy, Inc., a Delaware
corporation established to make investments in FUCO's, own and/or operate
eligible facilities and to engage in project development activities for
eligible facilities.
(b) GPU has invested $48,000,000 in EI Energy, Inc.
(c) Ratio of debt to common equity - 1.43:1
Accumulated losses - $(191,270)
(d) None.
Part II:
An organizational chart showing the relationship of EI Energy, Inc. to other
FUCO's in which it has an interest is provided in Exhibit H-1.
The financial statements for EI Energy, Inc. are provided in Exhibit F-2 of
this Form U5S.
-52-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
FOREIGN UTILITY COMPANIES (FUCO):
Victoria Electric, Inc. and Solaris Power
Part I.
(a) At December 31, 1995, EI Energy, Inc. through its wholly-owned subsidiary
Victoria Electric, Inc., owned 50% of Solaris Power (Solaris).
Solaris is an Australian electric distribution company located in and
around Melbourne, Australia, which serves approximately 230,000
customers.
(b) GPU, indirectly through its wholly-owned subsidiary EI Energy, Inc., has
invested approximately $112,173,000 in Solaris. The investment was funded
by a capital contribution from GPU of $48,000,000 and borrowings of
approximately $64,173,000.
(c) Ratio of debt to common equity of Solaris - 2.25:1
Accumulated earnings of Solaris - $7,167,421
(d) None.
Part II:
An organizational chart showing the relationship of EI Power, Inc. to Solaris
is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
Solaris as of and for the year ended December 31, 1995 are provided in Exhibit
I-1.
-53-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
Part III.
GPU's aggregate investment in EWG's and FUCO's at December 31, 1995, was as
follows:
EWG's: $ 66,489,000
FUCO's: $112,173,000
GPU's aggregate capital investment in domestic public utility subsidiary
companies at December 31, 1995 was approximately $2,765,745,000.
Ratio of GPU's aggregate investment of EWG's and FUCO's to GPU's aggregate
investment in domestic public utility subsidiary companies at December 31,
1995, was as follows:
EWG's: .02:1
FUCO's: .04:1
-54-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS
Page
Consolidating Financial Statements, Schedules and Notes
- Report of Independent Accountants. 56
- Consolidating Financial Statements of General Public 57-66
Utilities Corporation for 1995.
- Notes 1 through 11 to Consolidated Financial Statements
incorporated herein by reference, in Exhibit A (page 46),
in the General Public Utilities Corporation Annual
Report on Form 10-K for 1995 (Item 8).
- Notes 1 through 9 to Financial Statements
incorporated herein by reference, in Exhibit A (page 46),
in the Jersey Central Power & Light Company Annual
Report on Form 10-K for 1995 (Item 8).
- Notes 1 through 9 to Consolidated Financial Statements
incorporated herein by reference, in Exhibit A (page 46),
in the Metropolitan Edison Company Annual Report
on Form 10-K for 1995 (Item 8).
- Notes 1 through 9 to Consolidated Financial Statements
incorporated herein by reference, in Exhibit A (page 46),
in the Pennsylvania Electric Company Annual
Report on Form 10-K for 1995 (Item 8).
Exhibits (See page 67)
- Consolidating Financial Statements of Energy Initiatives, Inc. for 1995.
- Consolidating Financial Statements of NCP Energy, Inc for 1995.
- Consolidating Financial Statements of EI Power, Inc. for 1995.
- Consolidating Financial Statements of EI Energy, Inc. for 1995.
- Consolidating Financial Statements of Jersey Central Power and Light
Company for 1995.
- Consolidating Financial Statements of Metropolitan Edison Company for
1995.
- Consolidating Financial Statements of Pennsylvania Electric Company for
1995.
-55-
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors of
General Public Utilities Corporation
We have audited the consolidated balance sheet of General Public Utilities
Corporation and Subsidiary Companies as of December 31, 1995 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, 1995 and the
consolidated results of their operations and their cash flows for the year
then ended in conformity with generally accepted accounting principles.
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
January 31, 1996
-56-
<PAGE>
<TABLE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
The Corp. and General
Subsidiary Eliminations Public Jersey Central Metropolitan Pennsylvania
Companies and Utilities Power & Light Edison Electric
Consolidated Adjustments Corporation Company Company Company
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Utility Plant:
In service, at original cost $ 9,295,630 $ 4,311,458 $ 2,240,951 $ 2,667,842
Less, accumulated depreciation 3,433,240 1,669,893 763,921 974,992
Net utility plant in service 5,862,390 2,641,565 1,477,030 1,692,850
Construction work in progress 313,471 157,885 83,353 72,233
Other, net 193,356 111,023 45,587 30,876
Net utility plant 6,369,217 2,910,473 1,605,970 1,795,959
Other Property and Investments:
Common stock of subsidiaries - $ 3,093,538(A) $ 3,093,538
Nuclear decommissioning trusts 362,957 225,200 95,317 42,440
EI Group investments, net 288,044
Nuclear fuel disposal fund 95,393 95,393
Other, net 39,505 4,769 7,218 9,899 6,545
Total other property and investments 785,899 3,093,538 3,098,307 327,811 105,216 48,985
Current Assets:
Cash and temporary cash investments 18,422 8,567 922 1,810 1,367
Special deposits 14,877 7,358 1,256 2,718
Accounts receivable:
Customers, net 278,643 150,002 60,739 67,454
Other 69,773 63,122(B,C,D) 75 21,912 22,151 29,033
Unbilled revenues 128,749 66,389 31,509 30,851
Materials and supplies, at average cost or less:
Construction and maintenance 194,769 95,949 39,337 53,237
Fuel 39,795 18,693 9,817 11,285
Deferred energy costs 13,208 1,417(E) 5,290 9,335
Deferred income taxes 27,064 273(F) 12,142 7,868 4,602
Prepayments 42,746 6 20,869 6,549 10,328
Total current assets 828,046 64,812 8,648 399,526 181,036 220,210
Deferred Debits and Other Assets:
Regulatory assets:
Three Mile Island Unit 2 deferred costs 368,712 138,472 149,004 81,236
Unamortized property losses 105,729 100,176 3,273 2,280
Income taxes recoverable through future
rates 527,584 134,787 178,513 214,284
Other 437 683 311,293 109,185 17,205
Total regulatory assets 1,439,708 684,728 439,975 315,005
Deferred income taxes 330,186 122,082 91,356 78,754
Other 116,642 15,000(G) 68 20,359 13,612 14,657
Total deferred debits and other assets 1,886,536 15,000 68 827,169 544,943 408,416
Total Assets $ 9,869,698 $ 3,173,350 $ 3,107,023 $ 4,464,979 $ 2,437,165 $ 2,473,570
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference from the
respective annual reports on Form 10-K for the year ended December 31, 1995, are an integral part of the consolidating financial
statements.
-57-
<PAGE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
GPU GPU Energy
Service Nuclear Initiatives EI Power EI Energy
Corporation Corporation Inc. Inc. Inc.
<S> <C> <C> <C> <C> <C>
ASSETS
Utility Plant:
In service, at original cost $ 75,341 $ 38
Less, accumulated depreciation 24,434
Net utility plant in service 50,907 38
Construction work in progress
Other, net 5,870
Net utility plant 56,777 38
Other Property and Investments:
Common stock of subsidiaries
Nuclear decommissioning trusts
EI Group investments, net $ 105,071 $ 70,800 $ 112,173
Nuclear fuel disposal fund
Other, net 10,668 406
Total other property and investments 10,668 406 105,071 70,800 112,173
Current Assets:
Cash and temporary cash investments 32 33 2,592 175 2,924
Special deposits 92 470 2,983
Accounts receivable:
Customers, net 448
Other 7,601 47,471 2,886 1,623 143
Unbilled revenues
Materials and supplies, at average cost or less:
Construction and maintenance 6,246
Fuel
Deferred energy costs
Deferred income taxes 2,725
Prepayments 335 43 3,184 699 733
Total current assets 8,060 48,017 14,370 8,743 4,248
Deferred Debits and Other Assets:
Regulatory assets:
Three Mile Island Unit 2 deferred costs
Unamortized property losses
Income taxes recoverable through future
rates
Other
Total regulatory assets
Deferred income taxes 12,796 23,827 1,371
Other 2,966 888 26,711 52,134 247
Total deferred debits and other assets 15,762 24,715 28,082 52,134 247
Total Assets $ 91,267 $ 73,176 $ 147,523 $ 131,677 $ 116,668
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference from the
respective annual reports on Form 10-K for the year ended December 31, 1995, are an integral part of the consolidating financial
statements.
-58-
<PAGE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
The Corp. and General
Subsidiary Eliminations Public Jersey Central Metropolitan Pennsylvania
Companies and Utilities Power & Light Edison Electric
Consolidated Adjustments Corporation Company Company Company
<S> <C> <C> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock $ 314,458 $ 326,000(A) $ 314,458 $ 153,713 $ 66,273 $ 105,812
Capital surplus 746,449 1,375,357(A,H) 746,449 510,769 370,200 285,486
Retained earnings 2,004,072 1,392,135(A) 2,004,072 816,770 248,434 327,814
Total 3,064,979 3,093,492 3,064,979 1,481,252 684,907 719,112
Less:reacquired common stock, at cost 90,345 90,345
Total common stockholders' equity 2,974,634 3,093,492 2,974,634 1,481,252 684,907 719,112
Cumulative preferred stock:
With mandatory redemption 134,000 134,000
Without mandatory redemption 98,116 37,741 23,598 36,777
Subsidiary-obligated mandatorily
redeemable preferred securities 330,000 125,000 100,000 105,000
Long-term debt 2,567,898 15,000(G) 1,192,945 603,268 642,487
Total capitalization 6,104,648 3,108,492 2,974,634 2,970,938 1,411,773 1,503,376
Current Liabilities:
Securities due within one year 131,246 35,710 15,019 75,009
Notes payable 123,890 71,800 800 22,390 27,100
Obligations under capital leases 159,565 90,329 43,600 22,751
Accounts payable 318,394 59,561(B) 814 143,110 102,097 80,493
Taxes accrued 46,613 3,145(C) 3 10,516 19,615 16,019
Deferred energy credits - 1,417(E) 1,417
Interest accrued 69,456 416(D) 529 28,718 19,359 19,567
Other 259,280 273(F) 58,030 75,069 40,635 29,424
Total current liabilities 1,108,444 64,812 131,176 384,252 264,132 270,363
Deferred Credits and Other Liabilities:
Deferred income taxes 1,466,060 607,188 380,135 462,354
Unamortized investment tax credits 145,375 66,874 33,387 45,114
Three Mile Island Unit 2 future costs 413,031 103,271 206,489 103,271
Regulatory liabilities 97,999 37,597 26,461 33,941
Other 534,141 46(H) 1,213 294,859 114,788 55,151
Total deferred credits and other
liabilities 2,656,606 46 1,213 1,109,789 761,260 699,831
Total Liabilities and Capital $ 9,869,698 $ 3,173,350 $ 3,107,023 $ 4,464,979 $ 2,437,165 $ 2,473,570
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference from the
respective annual reports on Form 10-K for the year ended December 31, 1995, are an integral part of the consolidating financial
statements.
-59-<PAGE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
GPU GPU Energy
Service Nuclear Initiatives EI Power EI Energy
Corporation Corporation Inc. Inc. Inc.
<S> <C> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock $ 50 $ 50 $ 100 $ 1 $ 1
Capital surplus 127,904 32,999 47,999
Retained earnings (768) (1,037) 1,113 (191)
Total (718) 50 126,967 34,113 47,809
Less:reacquired common stock, at cost
Total common stockholders' equity (718) 50 126,967 34,113 47,809
Cumulative preferred stock:
With mandatory redemption
Without mandatory redemption
Subsidiary-obligated mandatorily
redeemable preferred securities
Long-term debt 27,500 48,386 68,312
Total capitalization 26,782 50 126,967 82,499 116,121
Current Liabilities:
Securities due within one year 3,200 2,308
Notes payable 1,800
Obligations under capital leases 2,885
Accounts payable 11,962 36,477 1,349 1,249 404
Taxes accrued 2,824 781
Deferred energy credits
Interest accrued 659 74 955 11
Other 21,916 27,637 6,162 548 132
Total current liabilities 43,446 64,969 9,311 5,060 547
Deferred Credits and Other Liabilities:
Deferred income taxes 8,441 710 7,232
Unamortized investment tax credits
Three Mile Island Unit 2 future costs
Regulatory liabilities
Other 12,598 7,447 4,013 44,118
Total deferred credits and other
liabilities 21,039 8,157 11,245 44,118 -
Total Liabilities and Capital $ 91,267 $ 73,176 $ 147,523 $ 131,677 $ 116,668
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by
reference from the respective annual reports on Form 10-K for the year ended December 31, 1995, are an integral part
of the consolidating financial statements.
-60-<PAGE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Statement of Income
For the Twelve Months Ended December 31, 1995
(In Thousands)
<CAPTION>
The Corp. and General
Subsidiary Eliminations Public Jersey Central Metropolitan Pennsylvania
Companies and Utilities Power & Light Edison Electric
Consolidated Adjustments Corporation Company Company Company
<S> <C> <C> <C> <C> <C> <C>
Operating Revenues $ 3,804,656 $ 85,078(B,C,F, $ 2,035,928 $ 854,674 $ 981,329
G,H)
Equity in Earnings of Subsidiaries - 450,902(A) $ 450,902
Services Rendered at Cost to Affiliated Companies - 512,263(D,E)
Operating Expenses:
Fuel 363,211 5,993(G) 101,110 87,477 174,624
Power purchased and interchanged:
Affiliates - 55,288(C) 17,950 31,411 5,927
Others 1,022,361 642,858 184,319 195,184
Deferral of energy costs, net (5,902) (5,949) (1,041) 1,088
Other operation and maintenance 963,609 501,013(B,C,D,E, 4,242 475,448 229,559 266,347
F,G,H)
Depreciation and amortization 377,650 6,429(D,F,G) 194,976 99,588 83,086
Taxes, other than income taxes 349,221 14,738(D,E,G) 226,994 54,870 67,064
Total operating expenses 3,070,150 583,461 4,242 1,653,387 686,183 793,320
Operating income before income taxes 734,506 464,782 446,660 382,541 168,491 188,009
Income taxes 173,955 3,950(D,E,F, 293 91,321 36,686 45,948
G,H)
Operating Income 560,551 460,832 446,367 291,220 131,805 142,061
Other Income and Deductions:
Allowance for other funds used
during construction 5,113 1,803 1,304 2,006
Other income/(expense), net 216,110 (5,062)(D,E,F, 848 14,889 129,660 56,454
G,H,I)
Income taxes (90,751) 1,853(F,G,H) (5,905) (55,364) (24,431)
Total other income and deductions 130,472 (3,209) 848 10,787 75,600 34,029
Income Before Interest Charges and
Preferred Dividends 691,023 457,623 447,215 302,007 207,405 176,090
Interest Charges and Preferred Dividends:
Interest on long-term debt 188,321 4,583(D,G,H,I) 92,602 45,844 49,875
Other interest 30,364 1,216(D,E,F) 7,080 9,709 5,147 8,428
Allowance for borrowed funds used during
construction (9,558) (6,021) (1,126) (2,411)
Dividends on subsidiary-obligated mandatorily
redeemable preferred securities 24,816 6,628 9,000 9,188
Preferred stock dividends of subsidiaries 16,945 (16,945)(A)
Total interest charges and
preferred dividends 250,888 (11,146) 7,080 102,918 58,865 65,080
Minority interest net income - (922)(G)
Net Income $ 440,135 $ 467,847 (A) $ 440,135 $ 199,089 $ 148,540 $ 111,010
Earnings Per Average Common Share $ 3.79
Average Common Shares Outstanding 116,214
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference from the
respective annual reports on Form 10-K for the year ended December 31, 1995, are an integral part of the consolidating financial
statements.
-61-<PAGE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Statement of Income
For the Twelve Months Ended December 31, 1995
(In Thousands)
<CAPTION>
GPU GPU Energy
Service Nuclear Initiatives EI Power EI Energy
Corporation Corporation Inc. Inc. Inc.
<S> <C> <C> <C> <C> <C>
Operating Revenues $ 6,025 $ 11,339 $ 439
Equity in Earnings of Subsidiaries
Services Rendered at Cost to Affiliated Companies $ 128,405 $ 383,858
Operating Expenses:
Fuel 5,993
Power purchased and interchanged:
Affiliates
Others
Deferral of energy costs, net
Other operation and maintenance 114,940 372,641 (363) 1,560 248
Depreciation and amortization 3,415 1,008 2,006
Taxes, other than income taxes 5,955 9,064 12
Total operating expenses 124,310 381,705 645 9,571 248
Operating income before income taxes 4,095 2,153 5,380 1,768 191
Income taxes 718 1,086 1,573 383 (103)
Operating Income 3,377 1,067 3,807 1,385 294
Other Income and Deductions:
Allowance for other funds used
during construction
Other income/(expense), net 97 (875) 9,138 844 (7)
Income taxes (3,198)
Total other income and deductions 97 (875) 5,940 844 (7)
Income Before Interest Charges and
Preferred Dividends 3,474 192 9,747 2,229 287
Interest Charges and Preferred Dividends:
Interest on long-term debt 2,947 1,158 478
Other interest 527 192 497
Allowance for borrowed funds used during
construction
Dividends on subsidiary-obligated mandatorily
redeemable preferred securities
Preferred stock dividends of subsidiaries
Total interest charges and
preferred dividends 3,474 192 497 1,158 478
Minority interest net income (922)
Net Income $ - $ - $ 9,250 $ 149 $ (191)
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference from the
respective annual reports on Form 10-K for the year ended December 31, 1995, are an integral part of the consolidating financial
statements.
-62-
<PAGE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Statement of Retained Earnings
For the Twelve Months Ended December 31, 1995
(In Thousands)
<CAPTION>
The Corp. and General
Subsidiary Eliminations Public Jersey Central Metropolitan Pennsylvania
Companies and Utilities Power & Light Edison Electric
Consolidated Adjustments Corporation Company Company Company
<S> <C> <C> <C> <C> <C> <C>
Balance at beginning of period $ 1,775,759 $ 1,238,918 $ 1,769,909 $ 772,240 $ 190,742 $ 290,786
Net income 440,135 467,847 440,135 199,089 148,540 111,010
Cash dividends declared
on common stock (218,288) (218,288)
Cash dividends declared
on common stock of
subsidiary companies - (310,000) (140,000) (95,000) (75,000)
Cash dividends on cumulative
preferred stock - (16,945) (14,457) (944) (1,544)
Net unrealized gain on investments 5,731 12,280 12,280 5,119 2,593
Other adjustments, net 735 35 36 (102) (23) (31)
Balance at end of period $ 2,004,072 $ 1,392,135 $ 2,004,072 $ 816,770 $ 248,434 $ 327,814
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference from the
respective annual reports on Form 10-K for the year ended December 31, 1995, are an integral part of the consolidating financial
statements.
-63-
<PAGE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Statement of Retained Earnings
For the Twelve Months Ended December 31, 1995
(In Thousands)
<CAPTION>
GPU GPU Energy
Service Nuclear Initiatives EI Power EI Energy
Corporation Corporation Inc. Inc. Inc.
<S> <C> <C> <C> <C> <C>
Balance at beginning of period $ (699) $ - $ (8,301) $ - $ -
Net income 9,250 149 (191)
Cash dividends declared
on common stock
Cash dividends declared
on common stock of
subsidiary companies
Cash dividends on cumulative
preferred stock
Net unrealized gain on investments (1,981)
Other adjustments, net (69) (5) 964
Balance at end of period $ (768) $ - $ (1,037) $ 1,113 $ (191)
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by
reference from the respective annual reports on Form 10-K for the year ended December 31, 1995, are an integral
part of the consolidating financial statements.
-64-
<PAGE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Statement of Cash Flows
For the Twelve Months Ended December 31, 1995
(In Thousands)
<CAPTION>
The Corp. and General
Subsidiary Eliminations Public Jersey Central Metropolitan Pennsylvania
Companies and Utilities Power & Light Edison Electric
Consolidated Adjustments Corporation Company Company Company
<S> <C> <C> <C> <C> <C> <C>
Operating Activities:
Net income (loss) $ 440,135 $ 467,847 $ 440,135 $ 199,089 $ 148,540 $ 111,010
Adjustments to reconcile income (loss) to
cash provided:
Equity in earnings of subsidiaries - (450,903) (450,903)
Depreciation and amortization 381,618 212,609 84,848 77,635
Amortization of property under capital leases 57,324 31,963 13,667 7,777
Three Mile Island Unit 2 costs (170,005) (118,209) (51,796)
Nuclear outage maintenance costs, net 7,407 16,239 (5,931) (2,901)
Deferred income taxes and investment tax
credits, net 115,278 (3,264) 68,827 42,514
Deferred energy costs, net (6,061) (6,511) (1,041) 1,491
Accretion income (12,520) (12,520)
Allowance for other funds used during
construction (5,113) (1,803) (1,304) (2,006)
Changes in working capital:
Receivables (54,993) (3,188) 4 (34,860) (13,092) (7,744)
Materials and supplies 9,323 (2,642) 7,053 4,912
Special deposits and prepayments 14,401 (1) 22,261 1,615 (5,078)
Payables and accrued liabilities (40,150) 3,301 301 (45,098) (6,521) 4,869
Due to/from affiliates - 1,103 (2,994) (9,538) 3,403
Other, net (70,452) 8,854 (29,816) (36,318) 1,178
Net cash provided (required) by operating
activities 666,192 17,057 (507) 342,653 132,596 185,264
Investing Activities:
Cash construction expenditures (461,860) (217,805) (112,554) (130,512)
Contributions to decommissioning trusts (37,541) (18,793) (13,485) (5,263)
EI Group investments (164,831)
Other, net (3,834) (15,000) (711) (7,114) (300) (323)
Net cash used for investing activities (668,066) (15,000) (711) (243,712) (126,339) (136,098)
Financing Activities:
Issuance of long-term debt 403,656 49,625 87,911 197,997
Increase (Decrease) in notes payable, net (223,962) 15,000 (54,200) (109,700) 22,390 (83,952)
Retirement of long-term debt (192,664) (47,439) (40,519) (99,319)
Capital lease principal payments (50,611) (26,991) (12,531) (7,172)
Issuance of common stock 157,545 157,545
Issuance of subsidiary-obligated mandatorily
redeemable preferred securities 121,063 121,063
Redemption of preferred stock of subsidiaries (6,049) (6,049)
Dividends paid on common stock (215,413) (215,413)
Dividends paid on preferred stock of subsidiaries - (17,057) (14,569) (944) (1,544)
Dividends paid on common stock - Internal - 310,000 (140,000) (95,000) (75,000)
Cash contributions to subsidiaries - (202,524) 75,000 25,000 20,000
Net cash provided (required) by financing
activities (6,435) (2,057) (4,592) (99,060) (13,693) (48,990)
Net increase (decrease) in cash and temporary
cash investments from above activities (8,309) - (5,810) (119) (7,436) 176
Cash and temporary cash investments, beginning
of year 26,731 - 14,377 1,041 9,246 1,191
Cash and temporary cash investments, end of year $ 18,422 $ - $ 8,567 $ 922 $ 1,810 $ 1,367
Supplemental Disclosure:
Interest and preferred dividends paid $ 254,906 $ (17,057) $ 7,111 $ 106,673 $ 57,606 $ 60,524
Income taxes paid $ 187,361 $ 93,662 $ 47,343 $ 43,685
New capital lease obligations incurred $ 54,478 $ 18,264 $ 22,316 $ 11,160
Common stock dividends declared but not paid $ 54,718 $ 54,718
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference from
the respective annual reports on Form 10-K for the year ended December 31, 1995, are an integral part of the consolidating
financial statements.
-65-
<PAGE>
General Public Utilities Corporation and Subsidiary Companies
Consolidating Statement of Cash Flows
For the Twelve Months Ended December 31, 1995
(In Thousands)
<CAPTION>
GPU GPU Energy
Service Nuclear Initiatives EI Power EI Energy
Corporation Corporation Inc. Inc. Inc.
<S> <C> <C> <C> <C> <C>
Operating Activities:
Net income (loss) $ 9,250 $ 149 $ (191)
Adjustments to reconcile income (loss) to cash provided:
Equity in earnings of subsidiaries
Depreciation and amortization $ 3,415 1,008 2,088 15
Amortization of property under capital leases 3,917
Three Mile Island Unit 2 costs
Nuclear outage maintenance costs, net
Deferred income taxes and investment tax credits, net 3,132 $ 1,473 2,596
Deferred energy costs, net
Accretion income
Allowance for other funds used during construction
Changes in working capital:
Receivables (2,112) (1,832) (500) 2 546 (591)
Materials and supplies
Special deposits and prepayments 253 234 (3,084) (1,066) (733)
Payables and accrued liabilities 11,143 (5,796) 3,668 171 414
Due to/from affiliates 3,061 4,789 (570) 612 134
Other, net (10,517) (446) (5,766) 2,453 (74)
Net cash provided (required) by operating activities 12,292 (1,578) 6,602 6,953 (1,026)
Investing Activities:
Cash construction expenditures (2,678) 1,689
Contributions to decommissioning trusts
EI Group investments (4,712) (47,946) (112,173)
Other, net (2,511) (136) (2,769) (4,970)
Net cash used for investing activities (5,189) 1,553 (7,481) (52,916) (112,173)
Financing Activities:
Issuance of long-term debt 68,123
Increase (Decrease) in notes payable, net 1,500 15,000
Retirement of long-term debt (3,200) (325) (1,862)
Capital lease principal payments (3,917)
Issuance of common stock
Issuance of subsidiary-obligated mandatorily
redeemable preferred securities
Redemption of preferred stock of subsidiaries
Dividends paid on common stock
Dividends paid on preferred stock of subsidiaries
Dividends paid on common stock - Internal
Cash contributions to subsidiaries 1,524 33,000 48,000
Net cash provided (required) by financing activities (7,117) 2,699 46,138 116,123
Net increase (decrease) in cash and temporary
cash investments from above activities (14) (25) 1,820 175 2,924
Cash and temporary cash investments, beginning of year 46 58 772 - -
Cash and temporary cash investments, end of year $ 32 $ 33 $ 2,592 $ 175 $ 2,924
Supplemental Disclosure:
Interest and preferred dividends paid $ 3,259 $ 192 $ 493 $ 673 $ 1,318
Income taxes paid $ 559 $ 1,459 $ 653
New capital lease obligations incurred $ 2,738
Common stock dividends declared but not paid
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference from the
respective annual reports on Form 10-K for the year ended December 31, 1995, are an integral part of the consolidating financial
statements.
-66-
</TABLE>
<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
1995 (File No. 1-6047)
Jersey Central Power & Light Company - Annual Report on Form 10-K for
1995 (File No. 1-3141)
Metropolitan Edison Company - Annual Report on Form 10-K for 1995
(File No. 1-446)
Pennsylvania Electric Company - Annual Report on Form 10-K for 1995
(File No. 1-3522)
B. Certificates of Incorporation, Articles of Incorporation, By-Laws,
Partnership Agreements and Other Organizational Documents
GPU, GPU Genco, GPUSC & GPUN
B-1 Articles of Incorporation of GPU, as amended through March 27, 1990 -
incorporated by reference to Exhibit 3-A to GPU's Annual Report on
Form 10-K for 1989, File No. 1-6047.
B-2 Articles of Amendment to Articles of Incorporation of GPU, dated as
of May 5, 1995 - incorporated by reference to Exhibit A-4,
Certificate Pursuant to Rule 24, File No. 70-8569.
B-3 Articles of Incorporation of GPUSC, as amended through April 27, 1994
- incorporated by reference to Exhibit A-1 to Application on Form
U-1, File No. 70-4990.
B-4 Certificate of Incorporation of GPUN, dated as of September 5, 1980 -
incorporated by reference to Exhibit A-1 to Application on Form U-1,
File No. 70-6443.
B-5 Articles of Incorporation of GPU Genco, dated as of April 11, 1994 -
incorporated by reference to Exhibit A-1(a), Certificate Pursuant to
Rule 24, SEC File No. 70-8409.
B-6 Articles of Incorporation of Saxton Nuclear Experimental Corporation,
dated as of March 29, 1974 - incorporated by reference to Exhibit
B-12 to GPU's Annual Report on Form U5S for the year 1988, File No.
30-126.
B-7 Amended By-Laws of GPU, dated as of June 7, 1990 - incorporated by
reference to Exhibit 3-A to GPU's Annual Report on Form 10-K for
1990, File No. 1-6047.
B-8 Amended By-Laws of GPUSC, dated as of April 27, 1994 - incorporated
by reference to Exhibit 3-A to GPU's Annual Report on Form 10-K for
1994, File No. 1-6047.
B-9 Amended By-Laws of GPUN, dated as of April 29, 1993 - incorporated by
reference to Exhibit 3-A to GPU's Annual Report on Form 10K for 1993,
File No. 1-6047.
-67-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU, GPU Genco, GPUSC & GPUN
B-10 Amended By-Laws of GPU Genco, dated as of February 12, 1996 -
incorporated by reference to Exhibit A-2(a), Certificate Pursuant to
Rule 24, File No. 70-8409.
B-11 Amended By-Laws of Saxton, dated as of March 30, 1984 - incorporated
by reference to Exhibit A-1(e) to Application on Form U-1, File No.
70-7398.
B-12 Amendment to Section 37 of the By-Laws of Saxton, dated as of August
27, 1987 - incorporated by reference to Exhibit A-2(b), Certificate
Pursuant to Rule 24, File No. 70-7398.
B-13 Generating Station Operating Agreement among JCP&L, Met-Ed, Penelec
and GPU Genco, dated as of March 1, 1996 - incorporated by reference
to Exhibit B, Certificate Pursuant to Rule 24, File No. 70-8409.
JCP&L
B-14 Restated Certificate of Incorporation of JCP&L, dated as of May 26,
1982 - incorporated by reference to Exhibit 3-A to JCP&L's Annual
Report on Form 10-K for 1990, File No. 1-3141.
B-15 Certificate of Amendment to Restated Certificate of Incorporation of
JCP&L, dated as of June 19, 1992 - incorporated by reference to
Exhibit A-2(a), Certificate Pursuant to Rule 24, File No. 70-7949.
B-16 Certificate of Amendment to Restated Certificate of Incorporation of
JCP&L, dated as of June 19, 1992 - incorporated by reference to
Exhibit A-2(a)(i), Certificate Pursuant to Rule 24, File No. 70-7949.
B-17 Certificate of Incorporation of JCP&L Preferred Capital, Inc., dated
as of February 21, 1995 - incorporated by reference to Exhibit A-1,
Application on Form U-1, File No. 70-8495.
B-18 Amended By-Laws of JCP&L, dated as of May 25, 1993 - incorporated by
reference to Exhibit 3-B to JCP&L's Annual Report on Form 10-K for
1993, File No. 1-3141.
B-19 By-Laws of JCP&L Preferred Capital, Inc., dated as of February 21,
1995 - incorporated by reference to Exhibit A-2, Application on Form
U-1, File No. 70-8495.
B-20 Amended and Restated Limited Partnership Agreement of JCP&L Capital,
L.P., dated as of May 11, 1995 - incorporated by reference to Exhibit
A-5(a), Certificate Pursuant to Rule 24, File No. 70-8495.
B-21 Action Creating Series A Preferred Securities of JCP&L Capital, L.P.,
dated as of May 11, 1995 - incorporated by reference to Exhibit A-
6(a), Certificate Pursuant to Rule 24, File No. 70-8495.
B-22 Payment and Guarantee Agreement of JCP&L, dated as of May 18, 1995 -
incorporated by reference to Exhibit B-1(a), Certificate Pursuant to
Rule 24, File No. 70-8495.
-68-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
B-23 Restated Articles of Incorporation of Met-Ed, dated as of April 3,
1992 - incorporated by reference to Exhibit B-18 to GPU's Annual
Report on Form U5S for the year 1991, File No. 30-126.
B-24 Articles of Incorporation of York Haven Power Company, dated as of
December 18, 1967 - incorporated by reference to Exhibit B-15 to
GPU's Annual Report on Form U5S for the year 1988, File No. 30-126.
B-25 Certificate of Incorporation of Met-Ed Preferred Capital, Inc., dated
as of May 6, 1994 - incorporated by reference to Exhibit 3-C to
Registration Statement on Form S-3, Registration No. 33-53673.
B-26 Amended By-Laws of Met-Ed, dated as of July 27, 1995 - incorporated
by reference to Exhibit 3-F to GPU's Annual Report on Form 10-K for
1995, File No. 1-6047.
B-27 Amended By-Laws of York Haven Power Company, dated as of January 1,
1985 - incorporated by reference to Exhibit A-1(d), Application on
Form U-1, File No. 70-7398.
B-28 Amendment to Section 29 of the By-Laws of York Haven Power Company,
dated as of September 8, 1987 - incorporated by reference to Exhibit
A-2(a), Certificate Pursuant to Rule 24, File No. 70-7398.
B-29 By-Laws of Met-Ed Preferred Capital, Inc., dated as of May 6, 1994 -
incorporated by reference to Exhibit A-2, Application on Form U-1,
File No. 70-8401.
B-30 Amended and Restated Limited Partnership Agreement of Met-Ed Capital,
L.P., dated as of August 16, 1994 - incorporated by reference to
Exhibit A-5(a), Certificate Pursuant to Rule 24, File No. 70-8401.
B-31 Action Creating Series A Preferred Securities of Met-Ed Capital,
L.P., dated as of August 16, 1994 - incorporated by reference to
Exhibit A-6(a), Certificate Pursuant to Rule 24, File No. 70-8401.
B-32 Payment and Guarantee Agreement of Met-Ed, dated as of August 23,
1994 - incorporated by reference to Exhibit B-1(a), Certificate
Pursuant to Rule 24, File No. 70-8401.
Penelec
B-33 Restated Articles of Incorporation of Penelec, as amended through
March 10, 1992 - incorporated by reference to Exhibit 3-A to
Penelec's Annual Report on Form 10-K for 1991, File No. 1-3522.
B-34 Articles of Incorporation of Nineveh Water Company (formerly Penelec
Water Company), dated as of May 22, 1920 - incorporated by reference
to Exhibit B-36 to GPU's Annual Report on Form U5S for the year 1988,
File No. 30-126.
B-35 Certificate of Incorporation of Penelec Preferred Capital, Inc.,
dated as of May 9, 1994 - incorporated by reference to Exhibit 3-C to
Registration Statement on Form S-3, Registration No. 33-53677.
-69-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
B-36 Amended By-Laws of Penelec, dated as of July 27, 1995 - incorporated
by reference to Exhibit 3-H to GPU's Annual Report on Form 10-K for
1995, File No. 1-6047.
B-37 By-Laws of Nineveh Water Company, dated as of May 22, 1920 -
incorporated by reference to Exhibit A-1(c), Application on Form U-1,
File No. 70-7398.
B-38 Amendment to Article V, Section 6 of the By-Laws of Nineveh Water
Company, dated as of August 27, 1987 - incorporated by reference to
Exhibit A-1 (c), Certificate Pursuant to Rule 24, File No. 70-7398.
B-39 By-Laws of Penelec Preferred Capital, Inc., dated as of May 9, 1994 -
incorporated by reference to Exhibit A-2, Application on Form U-1,
File No. 70-8403.
B-40 Amended and Restated Limited Partnership Agreement of Penelec
Capital, L.P., dated as of June 27, 1994 - incorporated by reference
to Exhibit A-5(a), Certificate Pursuant to Rule 24, File No. 70-8403.
B-41 Action Creating Series A Preferred Securities of Penelec Capital,
L.P., dated as of June 27, 1994 - incorporated by reference to
Exhibit A-6(a), Certificate Pursuant to Rule 24, File No. 70-8403.
B-42 Payment and Guarantee Agreement of Penelec, dated as of July 5, 1994
- incorporated by reference to Exhibit B-1(a), Certificate Pursuant
to Rule 24, File No. 70-8403.
EI Group
B-43 Amended and Restated Certificate of Incorporation of EI, dated as of
September 14, 1990 - incorporated by reference to Exhibit B-5 to
GPU's Annual Report on Form U5S for the year 1990, File No. 30-126.
B-44 Certificate of Incorporation of Elmwood Energy Corporation, dated as
of February 13, 1987 - incorporated by reference to Exhibit B-11 to
GPU's Annual Report on Form U5S for the year 1988, File No. 30-126.
B-45 Certificate of Incorporation of Camchino Energy Corporation, dated as
of April 26, 1989 - incorporated by reference to Exhibit B-7 to GPU's
Annual Report on Form U5S for the year 1989, File No. 30-126.
B-46 Certificate of Incorporation of OLS Acquisition Corporation, dated as
of May 3, 1989 - incorporated by reference to Exhibit B-8 to GPU's
Annual Report on Form U5S for the year 1989, File No. 30-126.
B-47 Articles of Incorporation of OLS Energy - Berkeley, dated as of
September 5, 1985 - incorporated by reference to Exhibit B-9 to GPU's
Annual Report on Form U5S for the year 1989, File No. 30-126.
B-48 Articles of Incorporation of OLS Energy - Camarillo, dated as of
August 8, 1984 - incorporated by reference to Exhibit B-10 to GPU's
Annual Report on Form U5S for the year 1989, File No. 30-126.
-70-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
EI Group
B-49 Articles of Incorporation of OLS Energy - Chino, dated as of August
8, 1984 - incorporated by reference to Exhibit B-11 to GPU's Annual
Report on Form U5S for the year 1989, File No. 30-126.
B-50 Certificate of Incorporation of Armstrong Energy Corporation, dated
as of July 14, 1988 - incorporated by reference to Exhibit B-14 to
GPU's Annual Report on Form U5S for the year 1989, File No. 30-126.
B-51 Certificate of Incorporation of Geddes Cogeneration Corporation,
dated as of March 23, 1989- incorporated by reference to Exhibit B-16
to GPU's Annual Report on Form U5S for the year 1989, File No. 30-
126.
B-52 Articles of Incorporation of North Canadian Power, Inc., dated as of
November 21, 1989 - incorporated by reference to Exhibit B-13 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-53 Certificate of Amendment of Articles of Incorporation of North
Canadian Power, Inc., dated as of May 18, 1994, to change to name of
the company to NCP Energy, Inc. - incorporated by reference to
Exhibit B-14 to GPU's Annual Report on Form U5S for the year 1994,
File No. 30-126.
B-54 Certificate of Incorporation of NCP Lake Power, Inc., dated as of May
23, 1991 - incorporated by reference to Exhibit B-15 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-55 Certificate of Incorporation of NCP Gem, Inc., dated as of May 23,
1991 - incorporated by reference to Exhibit B-16 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-56 Certificate of Incorporation of Umatilla Groves, Inc., dated as of
June 17, 1992 - incorporated by reference to Exhibit B-17 to GPU's
Annual Report on Form U5S for the year 1994, File No. 30-126.
B-57 Certificate of Incorporation of NCP Dade Power, Inc., dated as of May
23, 1991 - incorporated by reference to Exhibit B-18 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-58 Certificate of Incorporation of NCP Pasco, Inc., dated as of May 23,
1991 - incorporated by reference to Exhibit B-19 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-59 Articles of Incorporation of ADA Management Corporation, dated as of
November 20, 1990 - incorporated by reference to Exhibit B-20 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-60 Certificate of Amendment of Articles of Incorporation of ADA
Management Corporation, dated as of July 31, 1993 to change the name
of the company to Commerce Cogeneration Corporation - incorporated by
reference to Exhibit B-21 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
-71-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
EI Group
B-61 Certificate of Amendment of Articles of Incorporation of Commerce
Cogeneration Corporation, dated as of July 31, 1993 to change the
name of the company to NCP ADA Power, Inc. - incorporated by
reference to Exhibit B-22 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-62 Certificate of Incorporation of NCP Brooklyn Power, Inc., dated as of
July 9, 1993 - incorporated by reference to Exhibit B-23 to GPU's
Annual Report on Form U5S for the year 1994, File No. 30-126.
B-63 Articles of Incorporation of Trigen Power Company, dated as of
December 23, 1988 - incorporated by reference to Exhibit B-24 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-64 Certificate of Amendment of Articles of Incorporation of Trigen Power
Company, dated as of February 21, 1991 to change the name of the
company to ADA Power Company - incorporated by reference to Exhibit
B-25 to GPU's Annual Report on Form U5S for the year 1994, File No.
30-126.
B-65 Certificate of Amendment of Articles of Incorporation of ADA Power
Company, dated as of August 31, 1993 to change the name of the
company to NCP Commerce Power, Inc. - incorporated by reference to
Exhibit B-26 to GPU's Annual Report on Form U5S for the year 1994,
File No. 30-126.
B-66 Certificate of Incorporation of NCP Houston Power, Inc., dated as of
December 1, 1993 - incorporated by reference to Exhibit B-27 to GPU's
Annual Report on Form U5S for the year 1994, File No. 30-126.
B-67 Certificate of Incorporation of NCP Perry, Inc., dated as of December
1, 1993 - incorporated by reference to Exhibit B-28 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-68 Certificate of Incorporation of NCP New York, Inc., dated as of July
9, 1993 - incorporated by reference to Exhibit B-29 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-69 Certificate of Incorporation of EI Selkirk, Inc., dated as of October
31, 1994 - incorporated by reference to Exhibit B-30 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-70 Certificate of Incorporation of EI Fuels Corporation, dated as of
August 9, 1990 - incorporated by reference to Exhibit B-17 to GPU's
Annual Report on Form U5S for the year 1993, File No. 30-126
B-71 Certificate of Incorporation of EI Power, Inc., dated as of March 15,
1994 - incorporated by reference to Exhibit B-41 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
-72-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
EI Group
B-72 Certificate of Incorporation of Bermuda Hundred Energy, Inc., dated
as of July 25, 1989 - incorporated by reference to Exhibit B-12 to
GPU's Annual Report on Form U5S for the year 1989, File No. 30-126.
B-73 Certificate of Amendment to Certificate of Incorporation of Bermuda
Hundred Energy, Inc., dated as of March 16, 1993 - 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-74 Certificate of Amendment of the Certificate of Incorporation of
Bermuda Hundred Energy, Inc., dated as of March 16, 1993 to change
the name of the corporation to Hanover Energy Corporation -
incorporated by reference to Exhibit B-14 to GPU's Annual Report on
Form U5S for the year 1993, File No. 30-126.
B-75 Certificate of Incorporation of EI Power (China), Inc., dated as of
September 20, 1994 - incorporated by reference to Exhibit B-45 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-76 Certificate of Incorporation of EI Power (China) I, Inc., dated as of
September 20, 1994 - incorporated by reference to Exhibit B-46 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-77 Certificate of Incorporation of EI Power (China) II, Inc., dated as
of September 20, 1994 - incorporated by reference to Exhibit B-47 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-78 Certificate of Incorporation of EI Power (China) III, Inc., dated as
of September 20, 1994 - incorporated by reference to Exhibit B-47 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-79 Certificate of Incorporation of Austin Cogeneration Corporation,
dated as of January 27, 1995.
B-80 Certificate of Incorporation of Guaracachi America, Inc., dated as of
July 13, 1995.
B-81 By-Laws of Incorporation of EI Services Colombia, Ltda. (Public Deed
No. 2798), dated as of August 11, 1995.
B-82 By-Laws of Incorporation of Empresa Guaracachi S.A., effective as of
July 13, 1995.
B-83 Certificate of Incorporation of EI Barranquilla, Inc., dated as of
July 10, 1995.
B-84 By-Laws of Incorporation of Termobarranquilla S.A. (Public Deed No.
9994), dated as of October 14, 1994.
B-85 Certificate of Incorporation of Barranquilla Lease Holding, Inc.,
dated as of August 7, 1995.
-73-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
EI Group
B-86 Certificate of Incorporation of Los Amigos Leasing Company, Ltd.,
dated as of August 18, 1995.
B-87 Certificate of Incorporation of International Power Advisors, Inc.,
dated as of August 14, 1995.
B-88 Certificate of Incorporation of Colombian Installations, Inc., dated
as of September 8, 1995.
B-89 Certificate of Incorporation of EI Energy, Inc., dated as of October
18, 1995.
B-90 Certificate of Incorporation of Victoria Electric, Inc., dated as of
October 18, 1995.
B-91 Certificate of Incorporation of EI Services, Inc., dated as of
October 7, 1993.
B-92 Certificate of Amendment to Certificate of Incorporation of EI
Services, Inc., dated as of August 7, 1995.
B-93 Amended By-Laws of EI, dated as of May 14, 1993 - incorporated by
reference to Exhibit B-27 to GPU's Annual Report on Form U5S for the
year 1993, File No. 30-126.
B-94 Amended By-Laws of Elmwood Energy Corporation, adopted as of May 14,
1992 - incorporated by reference to Exhibit B-26 to GPU's Annual
Report on Form U5S for the year 1992, File No. 30-126.
B-95 By-Laws of Camchino Energy Corporation, adopted as of April 26, 1989
- incorporated by reference to Exhibit B-53 to GPU's Annual Report on
Form U5S for the year 1989, File No. 30-126.
B-96 By-Laws of OLS Acquisition Corporation, adopted as of May 3, 1989 -
incorporated by reference to Exhibit B-54 to GPU's Annual Report on
Form U5S for the year 1989, File No. 30-126.
B-97 By-Laws of OLS Energy - Berkeley, adopted as of August 25, 1989 -
incorporated by reference to Exhibit B-55 to GPU's Annual Report on
Form U5S for the year 1989, File No. 30-126.
B-98 By-Laws of OLS Energy - Camarillo, adopted as of August 25, 1989 -
incorporated by reference to Exhibit B-56 to GPU's Annual Report on
Form U5S for the year 1989, File No. 30-126.
B-99 By-Laws of OLS Energy - Chino, adopted as of August 25, 1989 -
incorporated by reference to Exhibit B-57 to GPU's Annual Report on
Form U5S for the year 1989, File No. 30-126.
B-100 Amended By-Laws of Armstrong Energy Corporation, adopted as of May
14, 1992 - incorporated by reference to Exhibit B-33 to GPU's Annual
Report on Form U5S for the year 1992, File No. 30-126.
-74-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
EI Group
B-101 Amended By-Laws of Geddes Cogeneration Corporation, adopted as of May
14, 1992 - incorporated by reference to Exhibit B-34 to GPU's Annual
Report on Form U5S for the year 1992, File No. 30-126.
B-102 By-Laws of North Canadian Power, Inc. (subsequently renamed NCP
Energy, Inc.), adopted as of December 27, 1989 - incorporated by
reference to Exhibit B-70 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-103 By-Laws of NCP Lake Power, Inc., adopted as of May 23, 1991 -
incorporated by reference to Exhibit B-71 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-104 By-Laws of NCP Gem, Inc., adopted as of May 23, 1991 - incorporated
by reference to Exhibit B-72 to GPU's Annual Report on Form U5S for
the year 1994, File No. 30-126.
B-105 By-Laws of Umatilla Groves, Inc., adopted as of June 18, 1992 -
incorporated by reference to Exhibit B-73 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-106 By-Laws of NCP Dade Power, Inc., adopted as of May 23, 1991 -
incorporated by reference to Exhibit B-74 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-107 By-Laws of NCP Pasco, Inc., adopted as of May 23, 1991 - incorporated
by reference to Exhibit B-75 to GPU's Annual Report on Form U5S for
the year 1994, File No. 30-126.
B-108 By-Laws of Commerce Cogeneration Corporation, as amended through
October 3, 1992 (formerly known as ADA Management Corporation) -
subsequently renamed NCP ADA Power, Inc. - incorporated by reference
to Exhibit B-76 to GPU's Annual Report on Form U5S for the year 1994,
File No. 30-126.
B-109 By-Laws of NCP Brooklyn Power, Inc., adopted as of July 10, 1993 -
incorporated by reference to Exhibit B-77 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-110 By-Laws of Trigen Power Company (successively renamed ADA Power
Company and NCP Commerce Power, Inc.), adopted as of December 30,
1988 - incorporated by reference to Exhibit B-78 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-111 By-Laws of NCP Houston Power, Inc., adopted as of December 3, 1993 -
incorporated by reference to Exhibit B-79 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-112 By-Laws of NCP Perry, Inc., December 3, 1993 - incorporated by
reference to Exhibit B-80 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
-75-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
EI Group
B-113 By-Laws of NCP New York, Inc., adopted as of July 10, 1993 -
incorporated by reference to Exhibit B-81 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-114 By-Laws of EI Selkirk, Inc., adopted as of November 1, 1994 -
incorporated by reference to Exhibit B-82 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-115 By-Laws of EI Cayman (subsequently renamed EI International), dated
as of June 16, 1993 - incorporated by reference to Exhibit B-87 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-116 By-Laws of EI Fuels Corporation, dated as of May 14, 1993 -
incorporated by reference to Exhibit B-37 to GPU's Annual Report on
Form U5S for the year 1993, File No. 30-126.
B-117 By-Laws of EI Power, Inc., dated as of May 2, 1994 - incorporated by
reference to Exhibit B-89 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-118 Amended By-Laws of Hanover Energy Corporation (formerly Bermuda
Hundred Energy, Inc.), dated as of March 16, 1993 - incorporated by
reference to Exhibit B-32 to GPU's Annual Report on Form U5S for the
year 1992, File No. 30-126.
B-119 By-Laws of EI Power (China), Inc., adopted as of September 22, 1994 -
incorporated by reference to Exhibit B-91 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-120 By-Laws of EI Power (China) I, Inc., adopted as of September 22, 1994
- incorporated by reference to Exhibit B-92 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-121 By-Laws of EI Power (China) II, Inc., adopted as of September 22,
1994 - incorporated by reference to Exhibit B-93 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-122 By-Laws of EI Power (China) III, Inc., adopted as of September 22,
1994 - incorporated by reference to Exhibit B-94 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-123 By-Laws of Austin Cogeneration Corporation, adopted as of January 27,
1995.
B-124 By-Laws of Guaracachi America, Inc., adopted as of July 13, 1995.
B-125 By-Laws of EI Barranquilla, Inc., adopted as of December 29, 1995.
B-126 By-Laws of Barranquilla Lease Holding, Inc., adopted as of December
29, 1995.
B-127 By-Laws of Los Amigos Leasing Company, Ltd., dated as of August 18,
1995.
-76-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
EI Group
B-128 By-Laws of International Power Advisors, Inc., adopted as of August
16, 1995.
B-129 By-Laws of Colombian Installations, Inc., adopted as of September 9,
1995.
B-130 By-Laws of EI Energy, Inc., dated as of October 20, 1995.
B-131 By-Laws of Victoria Electric, Inc., adopted as of October 20, 1995.
B-132 Memorandum of Association of 2322117 Nova Scotia Limited, dated as of
December 22, 1993 - incorporated by reference to Exhibit B-33 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-133 Certificate of Amendment of the Memorandum of Association of 2322117
Nova Scotia Limited, dated as of February 17, 1994 to change the name
of the company to EI Brooklyn Power Limited - incorporated by
reference to Exhibit B-34 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-134 Memorandum of Association of 2322120 Nova Scotia Limited, dated as of
December 22, 1993 - incorporated by reference to Exhibit B-35 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-135 Certificate of Amendment of the Memorandum of Association of 2322120
Nova Scotia Limited, dated as of February 17, 1994 to change the name
of the company to EI Services Canada Limited - incorporated by
reference to Exhibit B-36 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-136 Memorandum of Association of 2322133 Nova Scotia Limited, dated as of
December 22, 1993 - incorporated by reference to Exhibit B-31 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-137 Certificate of Amendment of the Memorandum of Association of 2322133
Nova Scotia Limited, dated as of February 17, 1994 to change the name
of the company to EI Canada Holding Limited - incorporated by
reference to Exhibit B-32 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-138 Memorandum of Association of 2285241 Nova Scotia Limited, dated as of
March 3, 1994 - incorporated by reference to Exhibit B-37 to GPU's
Annual Report on Form U5S for the year 1994, File No. 30-126.
B-139 Certificate of Amendment of the Memorandum of Association of 2285241
Nova Scotia Limited, dated as of April 7, 1995 to change the name of
the company to EI Brooklyn Investments Limited - incorporated by
reference to Exhibit B-38 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-140 Memorandum of Association of EI Cayman (subsequently renamed EI
International), dated as of June 16, 1993 - incorporated by
reference to Exhibit B-39 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
-77-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
EI Group
B-141 Memorandum of Association of Solaris Power, dated as of May 11, 1994.
B-142 Memorandum of Association of EI Australia Services Pty Ltd, effective
as of October 26, 1995.
B-143 Articles of Association of 2322133 Nova Scotia Limited (subsequently
renamed EI Canada Holding Limited), adopted as of December 22, 1993 -
incorporated by reference to Exhibit B-83 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-144 Articles of Association of 2322117 Nova Scotia Limited (subsequently
renamed EI Brooklyn Power Limited), adopted as of December 22, 1993 -
incorporated by reference to Exhibit B-84 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-145 Articles of Association of 2322120 Nova Scotia Limited (subsequently
renamed EI Services Canada Limited), adopted as of December 22, 1993
- incorporated by reference to Exhibit B-85 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-146 Articles of Association of 2285241 Nova Scotia, Ltd. (subsequently
renamed EI Brooklyn Investment, Limited), adopted as of March 3, 1994
- incorporated by reference to Exhibit B-86 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-147 Articles of Association of Solaris Power, adopted as of November 22,
1995.
B-148 Articles of Association of EI Australia Services Pty Ltd, adopted as
of October 26, 1995.
B-149 Agreement of Limited Partnership of Ada Cogeneration Limited
Partnership, dated as of November 26, 1990, as amended - incorporated
by reference to Exhibit B-6(a)(i)-(iii), Application on Form U-1,
File No. 70-8369.
B-150 Amended and Restated Limited Partnership Agreement of Brooklyn Energy
Limited Partnership, dated as of March 11, 1994 - filed pursuant to
request for confidential treatment - incorporated by reference to
Exhibit B-108 to GPU's Annual Report on Form U5S for the year 1994,
File No. 30-126.
B-151 Agreement of Limited Partnership of FPB Cogeneration Partners Limited
Partnership, dated as of December 30, 1988 - incorporated by
reference to Exhibit B-7(a), Application Form U-1, File No. 70-8369.
B-152 Agreement of Limited Partnership of Lake Cogen, Ltd., dated as of
July 24, 1992 - incorporated by reference to Exhibit B-3(a),
Application on Form U-1, File No. 70-8369.
B-153 First Amendment to Limited Partnership Agreement of Lake Cogen, Ltd.,
dated as of June 13, 1994 - incorporated by reference to Exhibit B-
3(a), Certificate Pursuant to Rule 24, File No. 70-8369.
-78-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
EI Group
B-154 Agreement of Limited Partnership of Lake Investment, L.P., dated as
of July 23, 1992 - incorporated by reference to Exhibit B-112 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-155 Amended and Restated Limited Partnership Agreement of Onondaga
Cogeneration Limited Partnership, dated as of June 10, 1992 -
incorporated by reference to Exhibit A-1(a), Certificate Pursuant to
Rule 24, File No. 70-7942.
B-156 Limited Partnership Agreement of Pasco Cogen, Ltd., as amended
through July 15, 1993 - incorporated by reference to Exhibit B-
4(a)(i)-(iv), Application on Form U-1, File No. 70-8369.
B-157 Fourth Amendment to Limited Partnership Agreement of Pasco Cogen,
Ltd., dated as of June 13, 1994 - incorporated by reference to
Exhibit B-4(a), Certificate Pursuant to Rule 24, File No. 70-8369.
B-158 Agreement of Limited Partnership of Dade Investment, L.P., dated as
of August 28, 1991 - incorporated by reference to Exhibit B-116 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-159 Amended and Restated Limited Partnership Agreement of Prime Energy
Limited Partnership, dated as of August 7, 1987 - incorporated by
reference to Exhibit A-1, Application on Form U-1, File No. 70-7647.
B-160 Amendment to By-Laws of Incorporation of Termobarranquilla S.A.
(Public Deed No. 1198), dated as of February 24, 1995.
B-161 Amendment to By-Laws of Incorporation of Termobarranquilla S.A.
(Public Deed No. 6455), dated as of October 4, 1995.
B-162 Amendment to By-Laws of Incorporation of Termobarranquilla S.A.
(Public Deed No. 2093), dated as of April 6, 1995.
B-163 Amendment to By-Laws of Incorporation of Termobarranquilla S.A.
(Public Deed No. 5777), dated as of September 5, 1995.
B-164 Certificate of Amendment of Articles of Association of EI Cayman,
dated as of July 10, 1995 to change the name of the company to EI
International.
-79-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU, GPUSC & GPUN
C-1 Credit Agreement between GPUSC and First National Bank of Chicago,
dated as of March 27, 1996 - incorporated by reference to Exhibit B-
2, Certificate Pursuant to Rule 24, File No. 70-8793.
C-2 GPU Restricted Stock Plan for Outside Directors, dated as of June 2,
1994 - incorporated by reference to Exhibit 10-A to GPU's Annual
Report on Form 10-K for the year 1994, File No. 1-6047.
C-3 1990 Stock Plan for Employees of GPU and Subsidiaries, dated as of
November 4, 1993 - incorporated by reference to Exhibit 10-B to GPU's
Annual Report on Form 10-K for the year 1993, File No. 1-6047.
C-4 Performance Units Agreement Under the 1990 Stock Plan for Employees
of GPU and Subsidiaries - 1995 Agreement.
C-5 Incentive Compensation Plan for Elected Officers of GPU Service
Corporation, dated as of January 1, 1995.
C-6 Incentive Compensation Plan for Elected Officers of GPU Nuclear
Corporation, dated as of January 1, 1995.
C-7 Employee Incentive Compensation Plan of GPU Service Corporation,
dated as of April 1, 1995.
C-8 Employee Incentive Compensation Plan of GPU Nuclear Corporation,
dated as of April 1, 1995.
C-9 GPU Service Corporation Supplemental and Excess Benefits Plan, dated
as of January 1, 1995.
C-10 GPU Nuclear Corporation Supplemental and Excess Benefits Plan, dated
as of January 1, 1995.
C-11 Deferred Remuneration Plan for Outside Directors of GPU, dated as of
June 2, 1994 - incorporated by reference to Exhibit 10-C to GPU's
Annual Report on Form 10-K for the year 1994, File No. 1-6047.
C-12 Deferred Remuneration Plan for Outside Directors of GPU Nuclear
Corporation, dated as of September 1, 1995.
C-13 Retirement Plan for Outside Directors of GPU, dated as of June 2,
1994 - incorporated by reference to Exhibit 10-B to GPU's Annual
Report on Form 10-K for the year 1994, File No. 1-6047.
C-14 GPU System Companies Deferred Compensation Plan for Elected Officers,
dated as of June 1, 1995 - incorporated by reference to Exhibit 10-A
to GPU's Annual Report on Form 10-K for the year 1995, File No. 1-
6047.
-80-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU, GPUSC & GPUN
C-15 GPU System Companies Master Directors' Benefits Protection Trust,
dated as of September 1, 1995 - incorporated by reference to Exhibit
10-B to GPU's Annual Report on Form 10-K for the year 1995, File No.
1-6047.
C-16 GPU System Companies Master Executives' Benefits Protection Trust,
dated as of September 1, 1995 - incorporated by reference to Exhibit
10-C to GPU's Annual Report on Form 10-K for the year 1995, File No.
1-6047.
C-17 Senior Executive Life Insurance Program, dated as of May 3, 1989 -
incorporated by reference to description contained on pages 13-14 of
GPU's 1992 definitive proxy statement, File No. 1-6047.
C-18 Supplemental Extraordinary Medical Expense Plan for Certain GPU
System Officers, as amended through February 28, 1992 - incorporated
by reference to Exhibit 10-M to GPU's Annual Report on Form 10-K for
the year 1992, File No. 1-6047.
C-19 Letter agreement relating to supplemental pension benefits for J.R.
Leva, dated as of November 22, 1995 - incorporated by reference to
Exhibit 10-N to GPU's Annual Report on Form 10-K for the year 1995,
File No. 1-6047.
C-20 Letter agreement relating to terms of employment and pension benefits
for I.H. Jolles, dated as of September 18, 1995 - incorporated by
reference to Exhibit 10-O to GPU's Annual Report on Form 10-K for the
year 1995, File No. 1-6047.
C-21 Letter agreement relating to supplemental pension benefits for J. G.
Graham, dated as of November 22, 1995 - incorporated by reference to
Exhibit 10-P to GPU's Annual Report on Form 10-K for the year 1995,
File No. 1-6047.
JCP&L
Instruments Defining the Rights of Security Holders, Including
Indentures
C-22 Indenture, dated as of March 1, 1946, with United States Trust
Company of New York, Successor Trustee, - incorporated by reference
to JCP&L's Instruments of Indebtedness No. 1 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-23 First Supplemental Indenture, dated as of December 1, 1948 -
incorporated by reference to JCP&L's Instruments of Indebtedness No.
2 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.
-81-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-24 Second Supplemental Indenture, dated as of April 1, 1953 -
incorporated by reference to JCP&L's Instruments of Indebtedness No.
3 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-25 Third Supplemental Indenture, dated as of June 1, 1954 - incorporated
by reference to JCP&L's Instruments of Indebtedness No. 4 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-26 Fourth Supplemental Indenture, dated as of May 1, 1955 - incorporated
by reference to JCP&L's Instruments of Indebtedness No. 5 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-27 Fifth Supplemental Indenture, dated as of August 1, 1956 -
incorporated by reference to JCP&L's Instruments of Indebtedness No.
6 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-28 Sixth Supplemental Indenture, dated as of July 1, 1957 - incorporated
by reference to JCP&L's Instruments of Indebtedness No. 7 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-29 Seventh Supplemental Indenture, dated as of July 1, 1959 -
incorporated by reference to JCP&L's Instruments of Indebtedness No.
9 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-30 Eighth Supplemental Indenture, dated as of June 1, 1960 -
incorporated by reference to JCP&L's Instruments of Indebtedness No.
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-31 Ninth Supplemental Indenture, dated as of November 1, 1962 -
incorporated by reference to Exhibit 2-C, Registration No. 2-20732.
C-32 Tenth Supplemental Indenture, dated as of October 1, 1963 -
incorporated by reference to Exhibit 2-C, Registration No. 2-21645.
C-33 Eleventh Supplemental Indenture, dated as of October 1, 1964 -
incorporated by reference to Exhibit 5-A-3, Registration No. 2-59785.
C-34 Twelfth Supplemental Indenture, dated as of November 1, 1965 -
incorporated by reference to Exhibit 5-A-4, Registration No. 2-59785.
C-35 Thirteenth Supplemental Indenture, dated as of August 1, 1966 -
incorporated by reference to Exhibit 4-C, Registration No. 2-25124.
C-36 Fourteenth Supplemental Indenture, dated as of September 1, 1967 -
incorporated by reference to Exhibit 5-A-6, Registration No. 2-59785.
-82-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-37 Fifteenth Supplemental Indenture, dated as of October 1, 1968 -
incorporated by reference to Exhibit 5-A-7, Registration No. 2-59785.
C-38 Sixteenth Supplemental Indenture, dated as of October 1, 1969 -
incorporated by reference to Exhibit 5-A-8, Registration No. 2-59785.
C-39 Seventeenth Supplemental Indenture, dated as of June 1, 1970 -
incorporated by reference to Exhibit 5-A-9, Registration No. 2-59785.
C-40 Eighteenth Supplemental Indenture, dated as of December 1, 1970 -
incorporated by reference to Exhibit 5-A-10, Registration No. 2-
59785.
C-41 Nineteenth Supplemental Indenture, dated as of February 1, 1971 -
incorporated by reference to Exhibit 5-A-11, Registration No. 2-
59785.
C-42 Twentieth Supplemental Indenture, dated as of November 1, 1971 -
incorporated by reference to Exhibit 5-A-12, Registration No. 2-
59875.
C-43 Twenty-first Supplemental Indenture, dated as of August 1, 1972 -
incorporated by reference to Exhibit 5-A-13, Registration No. 2-
59785.
C-44 Twenty-second Supplemental Indenture, dated as of August 1, 1973 -
incorporated by reference to Exhibit 5-A-14, Registration No. 2-
59785.
C-45 Twenty-third Supplemental Indenture, dated as of October 1, 1973 -
incorporated by reference to Exhibit 5-A-15, Registration No. 2-
59785.
C-46 Twenty-fourth Supplemental Indenture, dated as of December 1, 1973 -
incorporated by reference to Exhibit 5-A-16, Registration No. 2-
59785.
C-47 Twenty-fifth Supplemental Indenture, dated as of November 1, 1974 -
incorporated by reference to Exhibit 5-A-17, Registration No. 2-
59785.
C-48 Twenty-sixth Supplemental Indenture, dated as of March 1, 1975 -
incorporated by reference to Exhibit 5-A-18, Registration No. 2-
59785.
C-49 Twenty-seventh Supplemental Indenture, dated as of July 1, 1975 -
incorporated by reference to Exhibit 5-A-19, Registration No. 2-
59785.
C-50 Twenty-eighth Supplemental Indenture, dated as of October 1, 1975 -
incorporated by reference to Exhibit 5-A-20, Registration No. 2-
59785.
-83-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-51 Twenty-ninth Supplemental Indenture, dated as of February 1, 1976 -
incorporated by reference to Exhibit 5-A-21, Registration No. 2-
59785.
C-52 Supplemental Indenture No. 29A, dated as of May 31, 1976 -
incorporated by reference to Exhibit 5-A-22, Registration No. 2-
59785.
C-53 Thirtieth Supplemental Indenture, dated as of June 1, 1976 -
incorporated by reference to Exhibit 5-A-23, Registration No. 2-
59785.
C-54 Thirty-first Supplemental Indenture, dated as of May 1, 1977 -
incorporated by reference to Exhibit 5-A-24, Registration No. 2-
59785.
C-55 Thirty-second Supplemental Indenture, dated as of January 20, 1978 -
incorporated by reference to Exhibit 5-A-25, Registration No. 2-
60438.
C-56 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-57 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-58 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-59 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.
C-60 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-61 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-62 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-63 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.
-84-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-64 Forty-second Supplemental Indenture, dated as of July 1, 1989 -
incorporated by reference to Exhibit A-1(hh), Certificate Pursuant to
Rule 24, File No. 70-7603.C-39
C-65 Forty-third Supplemental Indenture, dated as of March 1, 1991 -
incorporated by reference to Exhibit 4-A-35, Registration
No. 33-45314.
C-66 Forty-fourth Supplemental Indenture, dated as of March 1, 1992 -
incorporated by reference to Exhibit 4-A-36, Registration No.
33-49405.
C-67 Forty-fifth Supplemental Indenture, dated as of October 1, 1992 -
incorporated by reference to Exhibit 4-A-37, Registration No.
33-49405.
C-68 Forty-sixth Supplemental Indenture, 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-69 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-70 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-71 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-72 Fiftieth Supplemental Indenture, dated as of August 1, 1994 -
incorporated by reference to Exhibit C-19 of GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
C-73 Subordinated Debenture Indenture, dated as of May 1, 1995 -
incorporated by reference to Exhibit A-8(a), Certificate Pursuant to
Rule 24, File No. 70-8495.
Other
C-74 Incentive Compensation Plan for Elected Officers of JCP&L, dated as
of January 1, 1995 - incorporated by reference to Exhibit 10-G to
GPU's Annual Report on Form 10-K for the year 1995, File No. 1-6047.
C-75 Employee Incentive Compensation Plan of JCP&L, dated as of April 1,
1995 - incorporated by reference to Exhibit 10-D to GPU's Annual
Report on Form 10-K for the year 1995, File No. 1-6047.
C-76 JCP&L Supplemental and Excess Benefits Plan, dated as of January 1,
1995 - incorporated by reference to Exhibit 10-K to GPU's Annual
Report on Form 10-K for the year 1995, File No. 1-6047.
-85-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-77 Deferred Remuneration Plan for Outside Directors of JCP&L, dated as
of September 1, 1995 - incorporated by reference to Exhibit 10-J to
GPU's Annual Report on Form 10-K for the year 1995, File No. 1-6047.
C-78 Amended and Restated Nuclear Material Lease Agreement, dated as of
November 17, 1995, between Oyster Creek Fuel Corp. and JCP&L -
incorporated by reference to Exhibit B-2(a)(i), Certificate Pursuant
to Rule 24, File No. 70-7862.
C-79 Amended and Restated Nuclear Material Lease Agreement, dated as of
November 17, 1995, between TMI-1 Fuel Corp. and JCP&L - incorporated
by reference to Exhibit B-2(a)(ii), Certificate Pursuant to Rule 24,
File No. 70-7862.
C-80 Letter Agreement, dated as of November 17, 1995, from JCP&L relating
to Oyster Creek Nuclear Material Lease Agreement - incorporated by
reference to Exhibit B-2(b)(i), Certificate Pursuant to Rule 24, File
No. 70-7862.
C-81 Letter Agreement, dated as of November 17, 1995, from JCP&L relating
to JCP&L TMI-1 Nuclear Material Lease Agreement - incorporated by
reference to Exhibit B-2(b)(ii), Certificate Pursuant to Rule 24,
File No. 70-7862.
C-82 Amended and Restated Trust Agreement, dated as of November 17, 1995,
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-3(i), Certificate
Pursuant to Rule 24, File No. 70-7862.
Met-Ed
Instruments Defining the Rights of Security Holders, Including
Indentures
C-83 Indenture, dated as of November 1, 1944, with United States Trust
Company of New York, Successor Trustee, - incorporated by reference
to Met-Ed's Instruments of Indebtedness No. 1 filed as part of
Amendment No. l to GPU's Annual Report on Form U5S for the year 1959,
File Nos. 30-126 and 1-3292.
C-84 Supplemental Indenture, dated as of February 1, 1947 - incorporated
by reference to Met-Ed's Instruments of Indebtedness No. 2 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-85 Supplemental Indenture, dated as of May 20, 1947 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 3 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.
-86-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
C-86 Supplemental Indenture, dated as of September 1, 1947 - incorporated
by reference to Met-Ed's Instruments of Indebtedness No. 4 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-87 Supplemental Indenture, dated as of September 1, 1948 - incorporated
by reference to Met-Ed's Instruments of Indebtedness No. 5 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-88 Supplemental Indenture, dated as of October 4, 1949 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 6 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-89 Supplemental Indenture, dated as of February 1, 1950 - incorporated
by reference to Met-Ed's Instruments of Indebtedness No. 7 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-90 Supplemental Indenture, dated as of July 19, 1950 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 8 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-91 Supplemental Indenture, dated as of December 1, 1950 - incorporated
by reference to Met-Ed's Instruments of Indebtedness No. 9 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-92 Supplemental Indenture, dated as of March 1, 1952 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 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-93 Supplemental Indenture, dated as of May 1, 1953 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 11 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-94 Supplemental Indenture, dated as of July 1, 1954 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 12 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-95 Supplemental Indenture, dated as of October 1, 1954 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 13 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.
-87-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
C-96 Supplemental Indenture, dated as of June 1, 1957 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 14 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-97 Supplemental Indenture, dated as of May 1, 1960 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 16 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-98 Supplemental Indenture, dated as of December 1, 1962 - incorporated
by reference to Exhibit 2-E(1), Registration No. 2-59678.
C-99 Supplemental Indenture, dated as of March 20, 1964 - incorporated by
reference to Exhibit 2-E(2), Registration No. 2-59678.
C-100 Supplemental Indenture, dated as of July 1, 1965 - incorporated by
reference to Exhibit 2-E(3), Registration No. 2-59678.
C-101 Supplemental Indenture, dated as of June 1, 1966 - incorporated by
reference to Exhibit 2-B-4, Registration No. 2-24883.
C-102 Supplemental Indenture, dated as of March 22, 1968 - incorporated by
reference to Exhibit 4-C-5, Registration No. 2-29644.
C-103 Supplemental Indenture, dated as of September 1, 1968 - incorporated
by reference to Exhibit 2-E(6), Registration No. 2-59678.
C-104 Supplemental Indenture, dated as of August 1, 1969 - incorporated by
reference to Exhibit 2-E(7), Registration No. 2-59678.
C-105 Supplemental Indenture, dated as of November 1, 1971 - incorporated
by reference to Exhibit 2-E(8), Registration No. 2-59678.
C-106 Supplemental Indenture, dated as of May 1, 1972 - incorporated by
reference to Exhibit 2-E(9), Registration No. 2-59678.
C-107 Supplemental Indenture, dated as of December 1, 1973 - incorporated
by reference to Exhibit 2-E(10), Registration No. 2-59678.
C-108 Supplemental Indenture, dated as of October 30, 1974 - incorporated
by reference to Exhibit 2-E(11), Registration No. 2-59678.
C-109 Supplemental Indenture, dated as of October 31, 1974 - incorporated
by reference to Exhibit 2-E(12), Registration No. 2-59678.
C-110 Supplemental Indenture, dated as of March 20, 1975 - incorporated by
reference to Exhibit 2-E(13), Registration No. 2-59678.
C-111 Supplemental Indenture, dated as of September 25, 1975 - incorporated
by reference to Exhibit 2-E(15), Registration No. 2-59678.
-88-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
C-112 Supplemental Indenture, dated as of January 12, 1976 - incorporated
by reference to Exhibit 2-E(16), Registration No. 2-59678.
C-113 Supplemental Indenture, dated as of March 1, 1976 - incorporated by
reference to Exhibit 2-E(17), Registration No. 2-59678.
C-114 Supplemental Indenture, dated as of September 28, 1977 - incorporated
by reference to Exhibit 2-E(18), Registration No. 2-62212.
C-115 Supplemental Indenture, dated as of January 1, 1978 - incorporated by
reference to Exhibit 2-E(19), Registration No. 2-62212.
C-116 Supplemental Indenture, dated as of September 1, 1978 - incorporated
by reference to Exhibit 4-A(19), Registration No. 33-48937.
C-117 Supplemental Indenture, dated as of June 1, 1979 - incorporated by
reference to Exhibit 4-A(20), Registration No. 33-48937.
C-118 Supplemental Indenture, dated as of January l, 1980 - incorporated by
reference to Exhibit 4-A(21), Registration No. 33-48937.
C-119 Supplemental Indenture, dated as of September 1, 1981 - incorporated
by reference to Exhibit 4-A(22), Registration No. 33-48937.
C-120 Supplemental Indenture, dated as of September 10, 1981 - incorporated
by reference to Exhibit 4-A(23), Registration No. 33-48937.
C-121 Supplemental Indenture, dated as of December 1, 1982 - incorporated
by reference to Exhibit 4-A(24), Registration No. 33-48937.
C-122 Supplemental Indenture, dated as of September 1, 1983 - incorporated
by reference to Exhibit 4-A(25), Registration No. 33-48937.
C-123 Supplemental Indenture dated as of September 1, 1984 - incorporated
by reference to Exhibit 4-A(26), Registration No. 33-48937.
C-124 Supplemental Indenture, dated as of March 1, 1985 - incorporated by
reference to Exhibit 4-A(27), Registration No. 33-48937.
C-125 Supplemental Indenture, dated as of September l, 1985 - incorporated
by reference to Exhibit 4-A(28), Registration No. 33-48937.
C-126 Supplemental Indenture, dated as of June 1, 1988 - incorporated by
reference to Exhibit 4-A(29), Registration No. 33-48937.
C-127 Supplemental Indenture, dated as of April 1, 1990 - incorporated by
reference to Exhibit 4-A(30), Registration No. 33-48937.
C-128 Amendment, dated as of May 22, 1995, to Supplemental Indenture (dated
April 1, 1990) - incorporated by reference to Exhibit 4-A(31),
Registration No. 33-48937.
-89-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
C-129 Supplemental Indenture, dated as of September 1, 1992 - incorporated
by reference to Exhibit 4-A(32)(a), Registration No. 33-48937.
C-130 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-131 Supplemental Indenture, dated as of July 15, 1995 - incorporated by
reference to Exhibit 4-B-35 to GPU's Annual Report on Form 10-K for
the year 1995, File No. 1-6047.
C-132 Subordinated Debenture Indenture, dated as of August 1, 1994 -
incorporated by reference to Exhibit A-8(a), Certificate Pursuant to
Rule 24, File No. 70-8401.
Other
C-133 Incentive Compensation Plan for Elected Officers of Met-Ed, dated as
of January 1, 1995 - incorporated by reference to Exhibit 10-H to
GPU's Annual Report on Form 10-K for the year 1995, File No. 1-6047.
C-134 Employee Incentive Compensation Plan of Met-Ed, dated as of April 1,
1995 - incorporated by reference to Exhibit 10-E to GPU's Annual
Report on Form 10-K for the year 1995, File No. 1-6047.
C-135 Met-Ed Supplemental and Excess Benefits Plan, dated as of January 1,
1995 - incorporated by reference to Exhibit 10-L to GPU's Annual
Report on Form 10-K for the year 1995, File No. 1-6047.
C-136 Amended and Restated Nuclear Material Lease Agreement, dated as of
November 17, 1995, between TMI-1 Fuel Corp. and Met-Ed - incorporated
by reference to Exhibit B-2(a)(iii), Certificate Pursuant to Rule 24,
File No. 70-7862.
C-137 Letter Agreement, dated as of November 17, 1995, from Met-Ed relating
to Met-Ed TMI-1 Nuclear Material Lease Agreement - incorporated by
reference to Exhibit B-2(b)(i), Certificate Pursuant to Rule 24, File
No. 70-7862.
C-138 Amended and Restated Trust Agreement, dated as of November 17, 1995,
between United States Trust Company of New York, as Owner Trustee,
Lord Fuel Corp., as Trustor and Beneficiary, and Met-Ed and its
affiliates - incorporated by reference to Exhibit B-3(i), Certificate
Pursuant to Rule 24, File No. 70-7862.
-90-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
Instruments Defining the Rights of Security Holders, Including
Indentures
C-139 Mortgage and Deed of Trust, dated as of January 1, 1942, with United
States Trust Company of New York, Successor Trustee, - incorporated
by reference to Penelec's Instruments of Indebtedness No. 1 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-140 Supplemental Indenture, dated as of March 7, 1942 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 2 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-141 Supplemental Indenture, dated as of April 28, 1943 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 3 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-142 Supplemental Indenture, dated as of August 20, 1943 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 4 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-143 Supplemental Indenture, dated as of August 30, 1943 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 5 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-144 Supplemental Indenture, dated as of August 31, 1943 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 6 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-145 Supplemental Indenture, dated as of April 26, 1944 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 7 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-146 Supplemental Indenture, dated as of April 19, 1945 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 8 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-147 Supplemental Indenture, dated as of October 25, 1945 - incorporated
by reference to Penelec's Instruments of Indebtedness No. 9 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-148 Supplemental Indenture, dated as of June 1, 1946 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 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.
-91-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
C-149 Supplemental Indenture, dated as of November 1, 1949 - incorporated
by reference to Penelec's Instruments of Indebtedness No. 11 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-150 Supplemental Indenture, dated as of October 1, 1951 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 12 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-151 Supplemental Indenture, dated as of August 1, 1952 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 13 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-152 Supplemental Indenture, dated as of June 1, 1953 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 14 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-153 Supplemental Indenture, dated as of March 1, 1954 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 15 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-154 Supplemental Indenture, dated as of April 30, 1956 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 16 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-155 Supplemental Indenture, dated as of May 1, 1956 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 17 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-156 Supplemental Indenture, dated as of March 1, 1958 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 18 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-157 Supplemental Indenture, dated as of August 1, 1959 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 19 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-158 Supplemental Indenture, dated as of May 1, 1960 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 20 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-159 Supplemental Indenture, dated as of May 1, 1961 - incorporated by
reference to Exhibit 2-D(1), Registration No. 2-61502.
-92-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
C-160 Supplemental Indenture, dated as of October 1, 1964 - incorporated by
reference to Exhibit 2-D(2), Registration No. 2-61502.
C-161 Supplemental Indenture, dated as of November 1, 1966 - incorporated
by reference to Exhibit 2-D(3), Registration No. 2-61502.
C-162 Supplemental Indenture, dated as of June 1, 1967 - incorporated by
reference to Exhibit 2-D(4), Registration No. 2-61502.
C-163 Supplemental Indenture, dated as of August 1, 1968 - incorporated by
reference to Exhibit 2-D(5), Registration No. 2-61502.
C-164 Supplemental Indenture, dated as of May 1, 1969 - incorporated by
reference to Exhibit 2-D(6), Registration No. 2-61502.
C-165 Supplemental Indenture, dated as of April 1, 1970 - incorporated by
reference to Exhibit 2-D(7), Registration No. 2-61502.
C-166 Supplemental Indenture, dated as of December 1, 1971 - incorporated
by reference to Exhibit 2-D(8), Registration No. 2-61502.
C-167 Supplemental Indenture, dated as of July 1, 1973 - incorporated by
reference to Exhibit 2-D(9), Registration No. 2-61502.
C-168 Supplemental Indenture, dated as of June 1, 1974 - incorporated by
reference to Exhibit 2-D(10), Registration No. 2-61502.
C-169 Supplemental Indenture, dated as of December 1, 1974 - incorporated
by reference to Exhibit 2-D(11), Registration No. 2-61502.
C-170 Supplemental Indenture, dated as of August 1, 1975 - incorporated by
reference to Exhibit 2-D(12), Registration No. 2-61502.
C-171 Supplemental Indenture, dated as of December 1, 1975 - incorporated
by reference to Exhibit 2-D(13), Registration No. 2-61502.
C-172 Supplemental Indenture, dated as of April 1, 1976 - incorporated by
reference to Exhibit 2-D(14), Registration No. 2-61502.
C-173 Supplemental Indenture, dated as of June 1, 1976 - incorporated by
reference to Exhibit 2-D(15), Registration No. 2-61502.
C-174 Supplemental Indenture, dated as of July 1, 1976 - incorporated by
reference to Exhibit 2-D(16), Registration No. 2-61502.
C-175 Supplemental Indenture, dated as of November 1, 1976 - incorporated
by reference to Exhibit 2-D(17), Registration No. 2-61502.
C-176 Supplemental Indenture, dated as of November 30, 1977 - incorporated
by reference to Exhibit 2-D(18), Registration No. 2-61502.
C-177 Supplemental Indenture, dated as of December 1, 1977 - incorporated
by reference to Exhibit 2-D(19), Registration No. 2-61502.
-93-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
C-178 Supplemental Indenture, dated as of June 1, 1978 - incorporated by
reference to Exhibit 4-A(2), Registration No. 33-49669.
C-179 Supplemental Indenture, dated as of June l, 1979 - incorporated by
reference to Exhibit 4-A(3), Registration No. 33-49669.
C-180 Supplemental Indenture, dated as of September 1, 1984 - incorporated
by reference to Exhibit 4-A(4), Registration No. 33-49669.
C-181 Supplemental Indenture, dated as of December 1, 1985 - incorporated
by reference to Exhibit 4-A(5), Registration No. 33-49669.
C-182 Supplemental Indenture, dated as of December 1, 1986, - incorporated
by reference to Exhibit 4-A(6), Registration No. 33-49669.
C-183 Supplemental Indenture, dated as of May 1, 1989 - incorporated by
reference to Exhibit 4-A(7), Registration No. 33-49669.
C-184 Supplemental Indenture, dated as of December 1, 1990 - incorporated
by reference to Exhibit 4-A(8), Registration No. 33-45312.
C-185 Supplemental Indenture, dated as of March 1, 1992 - incorporated by
reference to Exhibit 4-A(9), Registration No. 33-45312.
C-186 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-187 Supplemental Indenture, dated as of November 1, 1995 - incorporated
by reference to Exhibit 4-C-11 to GPU's Annual Report on Form 10-K
for the year 1995, File No. 1-6047.
C-188 Subordinated Debenture Indenture, dated as of July 1, 1994 -
incorporated by reference to Exhibit A-8(a), Certificate Pursuant to
Rule 24, File No. 70-8403.
Other
C-189 Incentive Compensation Plan for Elected Officers of Penelec, dated as
of January 1, 1995 - incorporated by reference to Exhibit 10-I to
GPU's Annual Report on Form 10-K for the year 1995, File No. 1-6047.
C-190 Employee Incentive Compensation Plan of Penelec, dated as of April 1,
1995 - incorporated by reference to Exhibit 10-F to GPU's Annual
Report on Form 10-K for the year 1995, File No. 1-6047.
C-191 Penelec Supplemental and Excess Benefits Plan, dated as of January 1,
1995 - incorporated by reference to Exhibit 10-M to GPU's Annual
Report on Form 10-K for the year 1995, File No. 1-6047.
-94-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
C-192 Amended and Restated Nuclear Material Lease Agreement, dated as of
November 17, 1995, between TMI-1 Fuel Corp. and Penelec -
incorporated by reference to Exhibit B-2(a)(iv), Certificate Pursuant
to Rule 24, File No. 70-7862.
C-193 Letter Agreement, dated as of November 17, 1995, from Penelec
relating to Penelec Nuclear Material Lease Agreement - incorporated
by reference to Exhibit B-2(b)(i), Certificate Pursuant to Rule 24,
File No. 70-7862.
C-194 Amended and Restated Trust Agreement, dated as of November 17, 1995,
between United States Trust Company of New York, as Owner Trustee,
Lord Fuel Corp., as Trustor and Beneficiary, and Penelec and its
affiliates - incorporated by reference to Exhibit B-3(i), Certificate
Pursuant to Rule 24, File No. 70-7862.
-95-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
D-1 Tax Allocation Agreement as amended through December 31, 1994 -
incorporated by reference to Exhibit D-1 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
Tax Allocation Agreement - Amendments thereto through March 31, 1996.
E-1 Venture Disclosures - Licensing of Computer Programs to Nonassociated
Companies.
E-2 Venture Disclosures - Operation and Maintenance Service Business.
E-3 Venture Disclosures - Fiber Optic System Lease Agreements with
Nonassociated Companies.
E-4 Energy Initiatives, Inc. Annual Report to the SEC on Form U-13-60 for
1995.
E-5 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-6 GPU System Accounting Policy regarding Company Credit Card
Agreements, dated April 20, 1993 - incorporated by reference to
Exhibit E-3 to GPU's Annual Report on Form U5S for the year 1992,
File No. 30-126.
E-7 Fiber Optic Cable Lease Agreement, dated as of December 23, 1992,
between GPUSC, individually and as agent for JCP&L and Met-Ed, and
MCI Telecommunications Corporation - incorporated by reference to
Exhibit B, Amendment No. 3 to Application on Form U-1, File No.
70-7850.
E-8 First Amendment to Fiber Optic Cable Lease Agreement, dated as of
September 23, 1994, between GPUSC, individually and as agent for
JCP&L and Met-Ed, and MCI Telecommunications Corporation - filed
pursuant to request for confidential treatment.
-96-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Schedules Supporting Items of This Report
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
1995.
Consolidating Financial Statements for NCP Energy, Inc. for 1995.
Consolidating Financial Statements of EI Power, Inc. for 1995.
Consolidating Financial Statements of EI Energy, Inc. for 1995.
Consolidating Financial Statements of Jersey Central Power and Light
Company for 1995.
Consolidating Financial Statements of Metropolitan Edison Company for
1995.
Consolidating Financial Statements of Pennsylvania Electric Company
for 1995.
Consolidating financial statements for OLS Power Limited Partnership
(OLS Power), which has three operating nonutility generation
projects, have been omitted since as of December 31, 1993, Energy
Initiatives, Inc. reduced its investment in OLS Power to zero through
the recording of equity losses.
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 (EWG) in which it holds an
interest.
Organizational chart showing the relationship of EI Power, Inc. to
each exempt wholesale generator (EWG) in which it holds an interest.
Organizational chart showing the relationship of EI Energy, Inc. to
each foreign utility company (FUCO) in which it holds an interest.
-97-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Schedules Supporting Items of This Report
I-1 Financial Statements of Brooklyn Energy Limited Partnership for 1995
- filed pursuant to request for confidential treatment.
Financial Statements of EI Services Canada, Ltd. for 1995 - filed
pursuant to request for confidential treatment.
Financial Statements of Selkirk Cogeneration Partners Limited
Partnership for 1995 - filed pursuant to request for confidential
treatment.
Financial Statements of Empresa Guaracachi S.A. for 1995 - filed
pursuant to request for confidential treatment.
Financial Statements of Termobarranquilla S.A. for 1995 - filed
pursuant to request for confidential treatment.
Financial Statements of Los Amigos Leasing Company, Ltd. for 1995 -
filed pursuant to request for confidential treatment.
Financial Statements of EI Services Colombia, Ltda. for 1995 - filed
pursuant to request for confidential treatment.
Financial Statements of Solaris Power for 1995 - filed pursuant to
request for confidential treatment.
-98-
<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
May 1, 1996
By /s/ F. A. Donofrio
F. A. Donofrio, Vice President
and Comptroller
-99-
<PAGE>
Page 1 of 4
1995 Index of Exhibits to be Filed by EDGAR
Exhibit B:
B-79 Certificate of Incorporation of Austin Cogeneration Corporation,
dated as of January 27, 1995.
B-80 Certificate of Incorporation of Guaracachi America, Inc., dated as
of July 13, 1995.
B-81 By-Laws of Incorporation of EI Services Colombia, Ltda. (Public
Deed No. 2798), dated as of August 11, 1995.
B-82 By-Laws of Incorporation of Empresa Guaracachi S.A., effective as
of July 13, 1995.
B-83 Certificate of Incorporation of EI Barranquilla, Inc., dated as of
July 10, 1995.
B-84 By-Laws of Incorporation of Termobarranquilla S.A. (Public Deed
No. 9994), dated as of October 14, 1994.
B-85 Certificate of Incorporation of Barranquilla Lease Holding, Inc.,
dated as of August 7, 1995.
B-86 Certificate of Incorporation of Los Amigos Leasing Company, Ltd.,
dated as of August 18, 1995.
B-87 Certificate of Incorporation of International Power Advisors,
Inc., dated as of August 14, 1995.
B-88 Certificate of Incorporation of Colombian Installations, Inc.,
dated as of September 8, 1995.
B-89 Certificate of Incorporation of EI Energy, Inc., dated as of
October 18, 1995.
B-90 Certificate of Incorporation of Victoria Electric, Inc., dated as
of October 18, 1995.
B-91 Certificate of Incorporation of EI Services, Inc., dated as of
October 7, 1993.
B-92 Certificate of Amendment to Certificate of Incorporation of EI
Services, Inc., dated as of August 7, 1995.
B-123 By-Laws of Austin Cogeneration Corporation, adopted as of January
27, 1995.
B-124 By-Laws of Guaracachi America, Inc., adopted as of July 13, 1995.
<PAGE>
Page 2 of 4
1995 Index of Exhibits to be Filed by EDGAR
Exhibit B (Continued):
B-125 By-Laws of EI Barranquilla, Inc., adopted as of December 29, 1995.
B-126 By-Laws of Barranquilla Lease Holding, Inc., adopted as of
December 29, 1995.
B-127 By-Laws of Los Amigos Leasing Company, Ltd., dated as of August
18, 1995.
B-128 By-Laws of International Power Advisors, Inc., adopted as of
August 16, 1995.
B-129 By-Laws of Colombian Installations, Inc., adopted as of September
9, 1995.
B-130 By-Laws of EI Energy, Inc., dated as of October 20, 1995.
B-131 By-Laws of Victoria Electric, Inc., adopted as of October 20,
1995.
B-141 Memorandum of Association of Solaris Power, dated as of May 11,
1994.
B-142 Memorandum of Association of EI Australia Services Pty Ltd,
effective as of October 26, 1995.
B-147 Articles of Association of Solaris Power, adopted as of November
22, 1995.
B-148 Articles of Association of EI Australia Services Pty Ltd, adopted
as of October 26, 1995.
B-160 Amendment to By-Laws of Incorporation of Termobarranquilla S.A.
(Public Deed No. 1198), dated as of February 24, 1995.
B-161 Amendment to By-Laws of Incorporation of Termobarranquilla S.A.
(Public Deed No. 6455), dated as of October 4, 1995.
B-162 Amendment to By-Laws of Incorporation of Termobarranquilla S.A.
(Public Deed No. 2093), dated as of April 6, 1995.
B-163 Amendment to By-Laws of Incorporation of Termobarranquilla S.A.
(Public Deed No. 5777), dated as of September 5, 1995.
B-164 Certificate of Amendment of Articles of Association of EI Cayman,
dated as of July 10, 1995 to change the name of the company to EI
International.
<PAGE>
Page 3 of 4
1995 Index of Exhibits to be Filed by EDGAR
Exhibit C:
C-4 Performance Units Agreement Under the 1990 Stock Plan for
Employees of GPU and Subsidiaries - 1995 Agreement.
C-5 Incentive Compensation Plan for Elected Officers of GPU Service
Corporation, dated as of January 1, 1995.
C-6 Incentive Compensation Plan for Elected Officers of GPU Nuclear
Corporation, dated as of January 1, 1995.
C-7 Employee Incentive Compensation Plan of GPU Service Corporation,
dated as of April 1, 1995.
C-8 Employee Incentive Compensation Plan of GPU Nuclear Corporation,
dated as of April 1, 1995.
C-9 GPU Service Corporation Supplemental and Excess Benefits Plan,
dated as of January 1, 1995.
C-10 GPU Nuclear Corporation Supplemental and Excess Benefits Plan,
dated as of January 1, 1995.
C-12 Deferred Remuneration Plan for Outside Directors of GPU Nuclear
Corporation, dated as of September 1, 1995.
Other:
D-1 Tax Allocation Agreement - Amendments thereto through March 31,
1996.
E-1 Venture Disclosures - Licensing of Computer Programs to
Nonassociated Companies.
E-2 Venture Disclosures - Operation and Maintenance Service Business.
E-3 Venture Disclosures - Fiber Optic System Lease Agreements with
Nonassociated Companies.
E-4 Energy Initiatives, Inc. Annual Report to the SEC on Form U-13-60
for 1995.
F-1 Item 6. Part III - Compensation and other related information for
the Officers and Directors of GPU, JCP&L, Met-Ed and Penelec.
<PAGE>
Page 4 of 4
1995 Index of Exhibits to be Filed by EDGAR
Other (Continued):
F-2 Consolidating Financial Statements of Energy Initiatives, Inc. for
1995.
Consolidating Financial Statements for NCP Energy, Inc. for 1995.
Consolidating Financial Statements of EI Power, Inc. for 1995.
Consolidating Financial Statements of EI Energy, Inc. for 1995.
Consolidating Financial Statements of Jersey Central Power and
Light Company for 1995.
Consolidating Financial Statements of Metropolitan Edison Company
for 1995.
Consolidating Financial Statements of Pennsylvania Electric
Company for 1995.
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 (EWG) in
which it holds an interest.
Organizational chart showing the relationship of EI Power, Inc. to
each exempt wholesale generator (EWG) in which it holds an
interest.
Organizational chart showing the relationship of EI Energy, Inc.
to each foreign utility company (FUCO) in which it holds an
interest.
<PAGE>
Exhibit B-79
CERTIFICATE OF INCORPORATION
OF
AUSTIN COGENERATION CORPORATION
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is Austin Cogeneraiton Corporation.
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 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 27th
day of January, 1995.
Thomas A. Scott
Sole Incorporator<PAGE>
Exhibit B-80
CERTIFICATE OF INCORPORATION
OF
GUARACACHI AMERICA, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is Guaracachi America, 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
Michael S. Shenberg c/o Berlack, Israels & Liberman LLP
120 West 45th Street
New York, New York 10036
SIXTH: 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.
SEVENTH: The board of directors of the corporation is
expressly authorized to adopt, amend or repeal by-laws of the
corporation.<PAGE>
EIGHTH: Elections of directors need not be by written
ballot except and to the extent provided in the by-laws of the
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this 13th
day of July, 1995.
Michael S. Shenberg
Sole Incorporator<PAGE>
Exhibit B-81
(Stamp:Notary's Office of PUBLIC DOCUMENT NUMBER: 2798
Santafe de Bogota) TWO THOUSAND SEVEN HUNDRED NINETY EIGHT
Illegible Seal) EXECUTED AT THE NOTARY'S OFFICE FORTY FIVE,
IN THE SANTAFE DE BOGOTA, D.C. CIRCUIT --------------------------
DATE EXECUTED: AUGUST ELEVEN (11) -------------------------------
NINETEEN NINETY FIVE 1995) --------------------------------------
TYPE OF CONTRACT: CONSTITUTION OF A LIMITED CORPORATION ---------
In the city of Santafe de Bogota, Capital District, Department of
Cundinamarca, Republic of
Colombia, before me, IRMA SUS PASTRANA ------
NOTARY PUBLIC NUMBER 45, IN THE SANTAFE DE BOGOTA D.C. CIRCUIT, a public
document was executed under the following terms: -------------
Appearing: LUIS CARLOS NEIRA MEJIA, male, of age, Colombian national, residing
in Santafe de Bogota, D.C., identified by citizenship card No. 3,227,552
issued in Usaquen, who is acting in name of and representing the foreign
corporation domiciled in GEORGETOWN, GRAND CAYMAN, British Virgin Islands,
trading under the corporate name El INTERNATIONAL, according to the special
power of attorney he carries for the purpose of recording it officially, and
in addition,[acting] in name of and representing the foreign corporation
domiciled in the County of Kent, City of Dover, State of Delaware, United
States of America, trading under the corporate name of El POWER, INC.,
according to the special power of attorney he carries for the purpose of
recording it officially and he stated that by means of the present document we
proceed with the constitution, as it is in effect constituted, of a business
corporation that will be named SERVICES COLOMBIA LTDA. and will be governed by
the following By-laws: --------
ARTICLE ONE: NAME AND NATURE: The corporation shall be a limited commercial
partnership having Colombian nationality that will trade under the name El
SERVICES DE COLOMBIA LTDA ---------------------------
<PAGE>
ARTICLE TWO: PRINCIPAL DOMICILE, BRANCHES AND AGENCIES. The corporation will
have its principal domicile in the city of Santafa de Bogota D.C., Republic of
Colombia but it may, by a decision of the Board of Directors (partners),
establish and regulate the operation or closing of branches, agencies and
offices any place in the country or abroad. Managers for branches or agencies
shall be named by the Board of Directors and it shall define, in each case,
the rights and responsibilities of the aforementioned managers which must be
recorded in the corresponding letter of authorization.
ARTICLE THREE: DURATION: The corporation will last for twenty (20) years
starting from the incorporation date but it may be dissolved before that date
or its existence may be extended according to these by-laws.
ARTICLE FOUR: PURPOSE: The principal corporate purpose of the corporation is
to operate and maintain power generating plants owned by third parties. The
corporation may also carry out the following activities:
I) Represent, distribute and market power generating plants and equipment.
II) Serve as technical consultant to third parties in the field of power
generation and transmission.
III) Render business management and consulting services for the administration
of companies related to their corporate purpose; and ------------------------
(Stamp: Notary's Office of Santafe de Bogota)
(Illegible Seal)
IV) Provide business representation for domestic or foreign companies that
build power generating equipment or provide services to that industry. For
the development of their corporate purpose, the company may, at its expense,
in the name of third parties with their participation, purchase, sell,
acquire, transfer to any title, all kinds of chattel or real estate; obtain or
give interest bearing loans; place any kind of lien on their chattel or real
estate, offer the first as surety and mortgage the latter; trade, endorse,
acquire, accept, protest, pay or deposit all kinds of securities and accept
them as payment; obtain rights of ownership for brands, drawings, logos,
patents and rights, transfer them to any security; promote and create
<PAGE>
companies in kind or businesses directly related to their principal corporate
purpose and contribute all types of assets to them; execute partnership
contracts for running businesses that are part of their purposes or that are
directly related to it; acquire or transfer any interest bearing securities,
shares or stocks in the same kind of companies or that have a goal directly
related to their purpose; represent or get an individual or a legal entity
dedicated to the same activities or those directly related to their purposes
and, in general, carry out anywhere, whether in their own name or in the name
of third parties or participating with them, all kinds operations and execute
and enter into all kinds of actions or contracts, whether civil, industrial,
commercial or financial which are beneficial or necessary for the achievement
of its goals and that are directly related to the corporate purpose.
ARTICLE FIVE: CAPITAL AND SHARES: The corporation's capital is EIGHT MILLION
NINE HUNDRED THOUSAND Pesos ($8,900,000.00) Legal Colombian Currency, divided
into eight thousand (8,900) corporate shares with a nominal value of one
thousand ($1,000) pesos each one. The partners have underwritten and paid for
the total corporate shares in which the corporation's capital is divided as
follows:
Partner SHARES VALUE
Percentage (%)
El INTERNATIONAL 8,811 8,811,000.00
99%
El POWER INC. 89 89,000.0
1%
Totals 8,900 $8,900,000.0
100%
ARTICLE SIX: PARTNER LIABILITY. Partner's liability is limited by the amount
they have contributed.
<PAGE>
ARTICLE SEVEN: PARTNER'S RIGHTS. All corporation shares confer their holder
equal rights to the corporate profits distributed and each one grants the
right to one vote in meetings of the Board of Directors. Corporate shares may
not be represented by securities and are not negotiable but they may be
transferred upon fulfillment of formalities established by law.
ARTICLE EIGHT. SHARE TRANSFER. When a partner wants to sell all or part of
the corporate shares owned by him, he shall let the other partners know
through the corporation's legal representative in a certified letter so that
if they show any interest they may purchase them and, all
(Stamp: Notary's Office of Santafe de Bogota)
(Illegible Seal)
conditions being equal, the partners will have preference over strangers. The
corporation's legal representative for his part will let the other partners
know within ten (10) working days following receipt of the transfer notice in
a notice mailed to the address the aforementioned have registered in the
corporation. The remaining partners may express their wish to purchase within
the twenty (20) working days following receipt of the notice. In case there
is no agreement on price or sales terms, they will submit to the decision made
by experts named by the parties according to procedures established in the
Code for Civil Procedures. When the price of the operation is set by the
aforementioned experts, it shall be binding to the seller and the partner or
partners which exercised the option. However, the transfer of corporate
shares must be approved by the Board of Directors by a favorable vote of the
partners which represent at least seventy percent (70%) of the shares in which
the corporation's capital is divided.
ARTICLE NINE: BOARD OF DIRECTOR'S MEETINGS. The partners shall meet regularly
at a Board of Director's Meeting at least once a year, in the months from
January to March, and at special meetings when the Board of Directors is
called to a meeting by the Manager, on his own or at the request of any number
of partners which represent no less than twenty five percent (25%) of the
corporate capital. However, the Board of Directors can meet legitimately at
<PAGE>
any time and place without the need of notification as long as all members are
present.
ARTICLE TEN: DUTIES OF THE BOARD OF DIRECTORS (Notary's Seal)
The Board of Directors has the following duties or responsibilities:
I) Elect the Manager and his substitute, remove them freely from their
position and assign remuneration;
II) Amend by-laws;
III)Approve statements, end of year balance and profit and loss statement and
declare profit distribution;
IV) Authorize the Manager to execute any action or contract for total amount
of or exceeding $50,000.00 (US) or its equivalent in Colombian pesos at the
prevailing exchange rate, or the one taking its lace, in force on the date the
action or contract is executed; and
V) Make decisions which require compliance with the corporate contract and
demand the partner's mutual interest.
ARTICLE ELEVEN: PROCEDURES. The following rules shall be observed regarding
procedures for the Board of Directors meetings:
I) Notification shall be made in writing to each of the partners no less than
five (5) calendar days before the date of the corresponding meeting. However,
for meetings where the end of year balances will be approved, the notice shall
be given with no less than fifteen (15) working days in advance;
II) Absent partners or those who are unable to attend maybe represented by a
proxy named in a letter, telegram or any other written means and addressed to
the management;
III) Meetings shall be presided by the Corporation's Manager and in his
absence, by his substitute, in cooperation with his secretary;
(Stamp: Notary's Office of Santafe de Bogota)
(Illegible Seal)
IV) Deliberations may take place when any plurality of people representing no
less that half plus one of the shares in which the corporation's capital is
divided are present;
<PAGE>
V) Decisions made by the Board of Directors will be made by a favorable vote
of a plurality of people which represent the absolute majority of corporate
shares represented at the meeting but amendments to the contract must be
passed by the favorable vote of a plurality of people representing at least,
seventy percent (70%) of the corporate shares in which the corporation's
capital is divided.
ARTICLE TWELVE: MINUTES. There will be minutes kept of all deliberations in a
book registered in the Chamber of Commerce where the corporation is domiciled,
signed by the President, the Secretary and showing the date and type of
notice, the people attending in relation to the shares they represent,
decisions passed and the number of votes in favor or against. Minutes so kept
must be given to the Board of Directors for their approval or by the people
they have named, in which case, such people shall also sign the corresponding
minutes.
ARTICLE THIRTEEN: MANAGER AND SUBSTITUTE. The corporation's management and
legal representation shall be the Manager's exclusive responsibility. Such
manager shall be named by the Board of Directors for a period of one (1) year.
Reelection can take place indefinitely. The manager shall be replaced by his
substitute, elected in the same way, whenever he is absent, whether
permanently, temporarily or accidentally. The election of the Manager and his
substitute shall not be valid until the minutes recording such occurrence are
registered in the Chamber of Commerce where the corporation is domiciled.
When the aforementioned has been recorded, the persons named shall keep their
status as legal representative of the corporation until a new appointment has
been recorded.
ARTICLE FOURTEEN: MANAGER'S DUTIES. When executing his functions as manager
and legal representative of the Corporation, the manager will act as agent for
corporate business and he shall have the following powers and attributions:
I) Represent the Corporation judicially and extra-judicially as a legal entity
and use the corporate signature.
II) Execute the agreements reached by the Board of Directors (Partners) and
call their regular and special meetings.
<PAGE>
III) Name the judicial and extrajudicial proxies he deems necessary to
represent the corporation appropriately, delegating in them the functions he
deems convenient for carrying out his mandate.
V) Carry out the actions and enter into the contracts that tend to develop the
corporate purpose.
When exercising this power, he may purchase or acquire, sell or transfer
assets, whether chattel or real state, to any security, he can tender them in
payment or mortgage them or place any kind of lien on them; change the
appearance of real state whether by nature or destination; give and receive in
kind, amounts of money, make bank or any other kind of deposits, sign all
kinds of securities, trade, deal in, accept, protest, unload, hold, discount
(Stamp: Notary's Office of Santafa de Bogota)
(Illegible Seal)
them, etc.; obtain rights of ownership for brands, drawings, logos, patents;
get trademark registration for brands, names, emblems, patents and rights of
any kind and transfer them to any security; appear at trials in which the
corporation's assets or any of its rights are in dispute; settle, accept,
desist, substitute, execute, or file any actions or remedies of any kind for
all pending corporation matters and transactions of any kind; represent it
before any kind of officer, court, authorities, legal entities or individuals,
etc.; and, in general, engage in the management and administrations of the
corporate business. The manager requires previous authorization by the Board
of Directors (Partners) to execute any action or contract for an amount
exceeding $50,000.00 (US) or its equivalent in Colombian peso at the
prevailing exchange rate or the one taking its place that is in force on the
date the action or contract is executed; and
VI) others which are conferred in him by law and these by-laws and those that
correspond to the nature of his position.
ARTICLE FIFTEEN: STATEMENT CLOSING. On December thirty first (31) each year,
the balance draft bearing the same date will undergo the pertaining accounting
adjustments, statements will be closed and the general inventory and profit
and loss statement for the fiscal year ending on such date shall be provided.
<PAGE>
For the purpose of carrying out the final accounting adjustments of the
operations performed, it will be necessary for the necessary items to be
previously appropriated. (Notary's Seal) to take care of depreciation,
devaluation, amortization and endorsement of corporate assets and that
calculations for risk or any type of liability which may affect the corporate
assets have been taken care of.
ARTICLE SIXTEEN: GENERAL BALANCE. After the final results for the business
year have been determined, the general balance may be formulated on the 31st
of December, each year. Such balance, as well as the profit and loss
statement for the business year, will be sent to the Board of Directors for
approval.
ARTICLE SEVENTEEN. LEGAL RESERVES. Ten percent (10%) of each calendar year's
net profits will be set aside for constituting and increasing the legal
reserve until it consists of an amount equal to fifty percent (50%) of the
underwritten capital.
ARTICLE EIGHTEEN: PROFIT DISTRIBUTION. Once the Board of Directors has
approved the balance and profit and loss statements and the amount has been
set aside for the legal reserve and reserves they deem beneficial, it may
proceed to distribute profits among partners. After the reserves mentioned in
the previous articles as well as appropriations for the payment of taxes have
been set aside, at least fifty percent (50%) of net profits obtained in each
business year or their balance shall be distributed unless they would have to
be used for absorbing losses from previous years. However, if the amount of
legal and incidental reserves were over one hundred percent (100%) of the
underwritten capital, the percentage which must be distributed by the
corporation must be seventy percent (70%). The aforementioned
(Stamp: Notary's Office of Santafe de Bogota)
(Illegible Seal)
at least seventy per cent (70%) of represented shares, the Board of Directors
may order profit distribution at a lower percentage or that it isn't carried
out at all.
<PAGE>
ARTICLE NINETEEN. DISSOLUTION. The corporation will be dissolved:
a) When the time period set for it duration expires without previous extension
b) Because losses have exhausted the reserves and they amount to fifty percent
(50%) of the corporate capital.
c) By a resolution of the Board of Directors following these by-laws.
d) Because the number of partners exceed twenty five (25); and
e) For all other reasons provided by law.
In case of dissolution, whether for legal causes or any reasons stated in
these by-laws, the manager shall put it in writing in a public document
whenever such action were necessary.
ARTICLE TWENTY: LIQUIDATION. The Manager will proceed, by himself, with the
liquidation of corporate assets, strictly following the provisions in the
Commerce Code, except when the Board of Directors, which must be called to a
meeting to acknowledge dissolution, decides that liquidation should be carried
out by another person or persons. The liquidator or liquidators will have the
powers and duties stipulated in the Commerce Code in addition to those
assigned by the Board of Directors. The liquidator or liquidators shall be
the representatives of the corporation while liquidation takes place and may
carry out all functions assigned to the Manager as long as they are compatible
with the liquidation status.
ARTICLE TWENTY ONE: DIVISION The object of the liquidation will be to convert
the corporate assets into currency and to pay the company's obligations. At
the end of the liquidation, the liquidator or liquidators will call a meeting
of the Board of Directors to which they will give the final statement of their
endeavors so it decrees division of corporate assets. This division entails
giving to partners their liquidation dividends. The Board of Directors may,
with the majority required by contract amendments, direct that once corporate
rate liabilities are covered, the remaining assets be distributed among
partners in proportion to their partnership rights.
ARTICLE TWENTY TWO. AMENDMENTS. When an amendment is approved, it shall be
filed as a public document by the corporation's legal representative and in
<PAGE>
addition, the Board of Director meeting approving it shall be officially
recorded.
ARTICLE TWENTY THREE - RESTRICTIONS. The corporation cannot serve as
guarantor for other people's commitments or give as collateral the
corporation's assets for commitments different from its own unless authorized
by the Board of Directors in specific cases.
ARTICLE TWENTY FOUR. DIFFERENCES. Differences between partners or between
one or more of them and the corporation related to the incorporation papers
shall be decided by three (3) arbiters appointed by the parties in mutual
agreement who will decide about the law and will have the express power to
conciliate claims. This appointment must be made within the thirty (30) days
following the date in which one party notifies the other its claims, in
writing, indicating the differences which are subject to arbitration. If
within that time
(Stamp: Notary's Office of Santafa de Bogota)
(Illegible Seal)
period, the parties do not appoint the arbiters in mutual agreement, the
Arbitration and Conciliation Center (Centro de Arbitraje y Conciliacion) of
the Chamber of Commerce in the city of Santafe de Bogota will be approached
for that purpose after the request was made by any of the interested parties.
The Court will operate in the city of Santafa de Bogota, D.C. The standards in
force for business arbitration shall apply in those matters not provided for.
All notices stemming from this [procedure] will be sent to the parties at the
addresses appearing in the corporation's records. TEMPORARY PROVISIONS.
APPOINTMENTS. The following will be the corporation's executives until the
Board of Directors hold new elections:
HEAD MANAGER LUIS TELLEZ
SUBSTITUTE BRUCE L. LEVY
THE MINUTES END HERE
IDENTIFICATION RECORD OF THE PERSON(S) APPEARING. It is stated that the
person(s) appearing was/were identified by the document(s) mentioned below
his(their) signature).
<PAGE>
NOTICE, EXECUTION AND RATIFICATION:
The executor(s) was/were notified of the need to register this public document
within the legal time period required by the corresponding Chamber of
Commerce.
After reading this legal document, the executor(s) agreed with it, accepted it
as written and in witness whereof, grant their approval and agreement, sign it
with me and before me, the Notary, to which I attest and for that reason
ratify it.
NOTARY FEES: DECREE 1372 from 1994 $26,500.00
THIS DOCUMENT IS WRITTEN IN NOTARY PAPER NUMBERS: AB 33943970 AB 33943971 AA
33943972 Ab 33943973 AB 33943976 AB 33943977 AB 33943978.
(signature)
LUIS CARLOS NEIRA MEJIA
C.C. 3,227,552 Usaquen
El INTERNATIONAL
EI POWER INC.
(illegible numbers)
(NOTARY'S SEAL)
(signature)
IRMA SUS PASTRANA
ZABH NOTARY 45 FROM SANTAFE DE BOGOTA D.C.
<PAGE>
Exhibit B-82
BYLAWS
SECTION I
ORGANIZATION - NAME -
DOMICILE - DURATION
ARTICLE 1: ORGANIZATION AND NAME.- Among the shareholders who are
listed as executing the Contract of Incorporation and those who
subsequently should adhere to same, there exists a corporation
under the name of "EMPRESA ELECTRICA GUARACACHI SOCIEDAD
AN NIMA", whose acronym shall be "EMPRESA GUARACACHI S.A."
ARTICLE 2: DOMICILE.- The legal domicile of the Company is
established in the city of Santa Cruz, Bolivia, and branches,
agencies and offices may be established in any other place inside
and outside the Republic.
ARTICLE 3: PURPOSE.- The purpose of the Corporation shall be to
carry out activities of generation and sale of electric energy
and transmission associated with generation in accordance with
the Law of Electricity and applicable legal regulations, as well
as compliance with and performance of any act or activity
connected with or related, directly or indirectly, to such
activities.
ARTICLE 4: DURATION.- The Company shall have a duration of
ninety-nine years, counted from the date of its registration in
the General Office of the Registry of Commerce and Corporations.
The term of duration of the Company may be extended by resolution
of a Special General Meeting of Shareholders.
SECTION II
CAPITAL AND SHARES
ARTICLE 5: AUTHORIZED CAPITAL AND PAR VALUE OF THE SHARES.- The
authorized capital of the Company is BS671,656,800.- (six hundred
seventy-one million six hundred fifty-six thousand eight hundred
00/100 Bolivianos). As the contributions of capital are made,
necessarily nominative shares shall be issued with a par value of
Bs100.- (one hundred 00/100 Bolivianos) each.
ARTICLE 6: INCREASE OR REDUCTION OF AUTHORIZED CAPITAL.- The
authorized capital may be increased or reduced according to the
course of activities of the Company through a resolution of a
Special General Meeting of Shareholders called especially for
that purpose. In order for an increase to be decided, the shares
issued up to the amount of the existing authorized capital must
be totally subscribed to.
ARTICLE 7: INCREASE IN CAPITAL STOCK.- All increases in capital
stock up to the amount of the authorized capital shall require <PAGE>
the approval of a Special General Meeting called for that
purpose.
ARTICLE 8: REDUCTION OF CAPITAL STOCK.- The reduction of capital
stock may be:
1. Voluntary;
2. Due to losses; and
3. Compulsory.
In the first case, this shall be done through a decision of a
Special General Meeting and with the authorization of the General
Office of the Registry of Commerce and Corporations. In the
second case, with the same requirements, it shall be done for the
amount of the losses suffered, provided these do not reach fifty
percent of the capital stock. In the third case, when the losses
exceed fifty percent of the capital stock plus unrestricted
reserves, complying with the formalities set forth in article 354
of the Code of Commerce or in the case stipulated in the last
part of article 38 of these Bylaws.
ARTICLE 9: CLASSES OF SHARES.- The shares of the Company may be
common or preferred. Preferred shares are those that establish
preferential benefits. They shall not vote at regular meetings
but exclusively at the special ones, without prejudice to
attending the regular meetings with a right to be heard. It shall
be up to the Special General Meeting to resolve the conditions of
issue of preferred shares and their rights.
ARTICLE 10: TITLES.- The shares shall be represented by titles
that are consecutively numbered and that shall necessarily set
forth the following:
1. Name of the shareholder;
2. Name, domicile, date and place of establishment and
duration of the Company;
3. Date of enrollment and date of its registration in the
General Office of the Registry of Commerce and
Corporations;
4. Amount of capital stock and authorized capital;
5. Par value of each share, the series to which it
belongs, whether common or preferred, the total number
of shares into which the series is divided and its
rights;
6. Number of shares that it represents;
7. Place and date of issue of the title;
8. Consecutive number of the title;
9. Signatures of the Chairman, of the Secretary of the
Board of Directors and of the Syndic.
ARTICLE 11: ISSUE OF TITLES.- The definite titles or certificates
that represent the shares may not be issued if the value that
they represent has not been totally paid up. Pending completion
of payment of the shares by the subscribers, they shall be issued<PAGE>
temporary certificates of subscription, which shall necessarily
be nominative and shall have the same details as the definite
titles.
ARTICLE 12: PAYMENT OF COMMITTED CONTRIBUTIONS.- The subscribers
of shares must pay the contributions to which they committed
within the periods agreed upon in the contracts of subscription,
subjecting themselves to the penalties stipulated in case of non-
compliance.
ARTICLE 13: PROHIBITION OF USE OF THE SUBSCRIPTION AMOUNTS.- The
subscription amounts of the shares may not be used for
distributions or other payments to the shareholders, including,
but not limited to, reductions of capital, dividends, loans and
advances to the shareholders.
ARTICLE 14: INDIVISIBILITY OF THE SHARES.- The shares are
indivisible. If a share jointly belongs to several persons, it
must be represented by only one of the latter, but the totality
of the owners shall be jointly and severally liable to the
Company with respect to all obligations inherent to their status
as shareholders.
ARTICLE 15: BOOK OF REGISTRATION OF SHARES.- The Company shall
keep a Book of Registration of Shares with the formalities of
accounting books to be freely consulted by the shareholders. Same
shall contain:
1. Name, nationality and domicile of the shareholders.
2. Number, series, class and other particulars of the
shares.
3. Name of the subscriber and status of payment of the
shares.
4. Detail of the transfers, with an indication of the
dates and names of the purchasers.
5. Encumbrances established on the shares.
6. Conversion and exchange of the titles with information
on the new ones.
7. Any other circumstance derived from the legal status of
the shares and of their possible modifications.
Entries made in such Book must bear the signature of the
Secretary of the Board of Directors.
ARTICLE 16: DUPLICATE TITLES.- In case of loss or destruction of
the titles or certificates, the Company shall issue the
respective duplicates after complying with the formalities set
forth in the Code of Commerce, and this circumstance must be
recorded in the Book of Registration of Shares. Replacement of
titles to the shares shall be made at the concerned party's
expense.
ARTICLE 17: RIGHT OF PREFERENCE IN NEW ISSUES.- At all times when
the issue of new shares and of bonds convertible into shares is
decided, the Company must offer them through publication in a<PAGE>
newspaper of national circulation for three consecutive days.
Current shareholders shall have a preferential right to subscribe
to them in proportion to the number of shares that they hold
within the period of time established for those purposes, which
period may not be less than thirty days counted from the date of
the last publication.
ARTICLE 18: RIGHTS OF THE SHAREHOLDERS.- Shares of the same class
shall all be equal in rights and obligations. Each common share
grants to its owner the right to one vote in the general meetings
and includes equal rights to the receipt of dividends and to the
aliquot part of capital in case of liquidation.
ARTICLE 19: SUBJECTION TO CORPORATE RULES.- Ownership of one or
more shares implies acceptance of the deed of incorporation, of
the bylaws, of legally introduced subsequent amendments and
abidance by the resolutions of the General Meetings of
Shareholders and of the Board of Directors, the right being
reserved to challenge resolutions that are contrary to law or to
the bylaws.
ARTICLE 20: LIABILITY OF SHAREHOLDERS.- The shareholders are
liable only up to the amount of the par value of their shares.
Individual property of the shareholder is different and
independent from the corporate property.
ARTICLE 21: RIGHTS OF THIRD PARTIES VIS-A-VIS THE SHAREHOLDER.-
The creditors of a shareholder shall not have the right to
intervene in the management or in the management of the Company,
nor to encumber the property of same, and they must limit
themselves to safeguarding their interests through encumbrance of
the shares and withholding of the dividends corresponding to the
shares of their debtors.
ARTICLE 22: TRANSFER OF SHARES.- Transfer of shares shall be made
through endorsement of the title and recording in the Book of
Registration of Shares.
SECTION III
BONDS OR DEBENTURES
ARTICLE 23: POWER TO ISSUE.- The Company is empowered to issue
bonds or debentures through express resolution of a Special
General Meeting of Shareholders and with authorization from the
General Office of the Registry of Commerce and Corporations.
ARTICLE 24: TERMS OF ISSUE.- The Meeting of Shareholders itself
that authorizes the issue of debt securities shall determine the
amount, term, interest, guarantees and other terms of the issue,
as well as the retirement, redemption and/or conversion of the
securities. In the latter case, the shareholders shall have the
preferential right to subscribe to them as stipulated in article
17 of these bylaws, and the capital stock shall be increased to
the extent that the bonds become shares.<PAGE>
ARTICLE 25: PLACEMENT OF DEBT SECURITIES.- The bonds or
debentures issued by the Corporation may be placed through an
authorized exchange broker with which the respective terms shall
be agreed upon.
SECTION IV
ON GOVERNANCE OF THE COMPANY
ARTICLE 26: BODIES OF THE COMPANY.- Governance of the Company
corresponds to the General Meeting of Shareholders, the Board of
Directors and the executives, whose powers, authorization and
obligations are set forth in the Law, the bylaws and pertinent
resolutions.
CHAPTER I
GENERAL MEETING OF SHAREHOLDERS
ARTICLE 27: COMPETENCY OF THE MEETING.- The General Meeting of
Shareholders is the highest decision-making body of the Company,
with the broadest powers of resolution for matters submitted for
its consideration.
ARTICLE 28: NATURE OF THE MEETINGS.- The General Meetings of
Shareholders shall be regular or special.
ARTICLE 29: NOTICES OF MEETINGS.- The General Meetings of
Shareholders shall be called by the Board of Directors, either on
its own initiative or through a written and reasoned request from
shareholders who represent at least twenty percent of paid-in
capital. The Meetings may also be called by the Board of
Directors at the request of the body of oversight of the Company
or directly by such body when the Board of Directors, having been
so requested, has not issued the notice. The right of holders of
only one share to call Meetings of Shareholders is recognized in
accordance with the stipulations of article 291 of the Code of
Commerce. Notices shall be made through three discontinuous press
publications in a daily of national circulation stating the
nature of the meeting, the place, date and hour on which it will
be held, the agenda and the requirements to be met by the
shareholders in order to be eligible for attendance. In no case
may the first publication of a notice of meeting be made more
than thirty days before the date set for the Meeting. The last
publication must be made at least five days before the date set
for the meeting. At the second notice of meeting only two press
notices shall be published, the last one three days ahead of
time. The shareholders residing abroad shall be summoned by
letter, telex or telefax sent to their address as recorded in the
Book of Registration of Shares.<PAGE>
ARTICLE 30: MEETINGS WITHOUT THE NEED FOR NOTICES.- Without
detriment to the stipulations of the preceding articles, the
Meetings of Shareholders, whether regular or special, shall be
considered legally in session, without the need for a notice, in
case the totality of the shares issued are present or
represented. In that case, resolutions shall be adopted with the
agreement of at least two thirds of the shares.
ARTICLE 31: PLACE OF MEETING.- The General Meetings of
Shareholders shall take place at the domicile of the Company.
ARTICLE 32: RIGHT TO ATTEND THE MEETINGS.- The right to attend
the Meetings of Shareholders is established through verification
of the registration of the shareholder in the Book of
Registration of Shares.
ARTICLE 33: REPRESENTATION OF THE SHARES.- In the case of
corporations, any of the individuals having legal powers to do so
shall represent the owner.
Shareholders who for any reason are unable to personally attend
the Meeting may delegate representation to another shareholder or
to third parties alien to the Company. In the former case a proxy
through a letter or an advice by cable, telex or telefax
addressed, as applicable, by an authorized official to the
Chairman or Secretary of the Board of Directors shall be
sufficient to confirm the power of attorney, while in the latter
case a notarized power of attorney shall be required.
ARTICLE 34: RIGHT OF REVIEW.- From the day following the day of
publication of the first notice of meeting up to the day prior to
the day on which the Meeting is to be held, shareholders who have
confirmed their status as such, or, as applicable, their legal
representatives shall have the right to review at the domicile of
the Company all background information pertaining to the matters
set forth in the agenda of the Meeting.
ARTICLE 35: SUSPENSION OF RECORDING OF TRANSFERS.- Suspension of
recording of transfers of shares is established from the day of
the last publication of the notice of meeting until the day after
the Meeting is held, during which period the Book of Registration
of Shares shall remain closed.
ARTICLE 36: RIGHT OF VOTE.- At the General Meetings of
Shareholders each common share grants its holder the right to one
vote.
ARTICLE 37: BINDING NATURE OF THE RESOLUTIONS.- The resolutions
of the General Meetings bind present, absent and dissenting
shareholders, the right to challenge and that of separation being
reserved in cases of transformation or merger of the Company in
accordance with pertinent stipulations of the Code of Commerce.<PAGE>
ARTICLE 38: RIGHT OF SEPARATION.- Shareholders who set forth for
the record their disagreement with the resolutions adopted
legally at a Special General Meeting that decides the
transformation or merger of the Company, or those who did not
attend same, may avail themselves of the right of separation from
the Company, for which purposes they must state their intention
in writing addressed to the Chairman of the Board within a
maximum period of fifteen days following the date on which the
Meeting was held. In this case and upon endorsement of the titles
by the shareholder to the Company, the latter must reimburse the
shareholder for the amount of his shares at book value according
to the audited balance sheet of the last period prior to the
Meeting in a period of ninety days counted from the date of
recording of the definite merger agreement at the General Office
of the Registry of Commerce and Corporations. In the case of
transformation the shareholder shall be reimbursed with the
amount of his shares in the same period of ninety days counted
from the acceptance of those entitled to the transformation and
once the documents in which is evidenced the transformation have
been recorded. With the formalities and within the period of time
stipulated in article 17 of these bylaws, the Company shall offer
such shares such that they can be acquired by the rest of the
shareholders, and if the latter do not make use of their
preferential right in the period stipulated, the shares shall be
offered to the public for a period of another thirty days. If the
shares are not acquired in the periods stipulated, the Company
shall proceed to reduce its capital in the respective proportion
in accordance with article 8 of these Bylaws.
ARTICLE 39.: CHAIRMANSHIP OF THE MEETINGS.- The General Meetings
shall be chaired by the Chairman of the Board of Directors and,
in the absence or inability of same, by the Vice Chairman of the
Board of Directors. In the absence of the latter official, any
other director determined by the Board shall chair same. In the
absence or inability of the totality of the Directors, the
Meeting shall appoint a shareholder to chair same. The Secretary
of the Board of Directors shall act as Secretary of the Meetings,
and in his absence, the Meeting itself shall designate the
replacement.
ARTICLE 40: MINUTES.- The deliberations and resolutions of the
General Meetings of Shareholders shall be set forth in a "Book of
Minutes", and the minutes must be signed by the Chairman, by the
Secretary, and by two representatives of the shareholders
designated by the Meeting itself. The minutes of the Special
Meetings shall be recorded in the General Office of the Registry
of Commerce and Corporations.
ARTICLE 41: REGULAR GENERAL MEETING.- The Regular General Meeting
shall compulsorily meet at least once a year to consider and
decide the following the matters:
1. Annual report of the Board of Directors;
2. General Balance Sheet and Statements of Earnings;<PAGE>
3. Report of the syndics;
4. Treatment of the results of management;
5. Appointment and removal of the directors and syndics;
6. Setting of compensation and bonds of the directors and
the syndics;
7. Liabilities, if any, of the directors and syndics;
8. Appointment of outside auditors;
9. Any other matter related to the management of the
Company;
10. To settle any other matter knowledge of which is not
reserved for the Special General Meeting of
Shareholders.
In the cases of points 1; 2; 3; 4; 5, and 6 and 8 (as
applicable), the Meeting shall necessarily be called within three
months following the close of the fiscal years.
ARTICLE 42: ATTENDANCE QUORUM AND MAJORITY FOR RESOLUTIONS.- All
Regular General Meetings shall be considered legally established
with the representation of at least half plus one of the common
shares issued by the Company. In case there is no quorum on the
day and hour indicated, a second notice of meeting shall be
issued with the formalities set forth in article 29 of these
bylaws, and the Meeting shall be validly established with any
number of shares present or represented. Resolutions shall be
adopted by the affirmative vote of at least half plus one of the
shares present and/or represented without impediment of
expression. Defective or blank votes shall not be valid for the
count.
ARTICLE 43: SPECIAL GENERAL MEETING.- The shareholders shall meet
at a Special General Meeting any time it is necessary to consider
and decide the following matters that are of its exclusive
competency;
1. Amendment to the bylaws;
2. Early dissolution or extension of duration of the
Company;
3. Increase or decrease in the authorized and paid-in
capital;
4. Change in the corporate purpose;
5. Issue of new shares;
6. Issue of debt securities;
7. Transformation of the Company;
8. Merger with another or other companies;
9. Appointment, removal and compensation of the
liquidators;
10. Trading of fully paid and issued shares of the Company
in stock exchanges;<PAGE>
11. Deciding on the sale of fixed assets of the Company
pledged to the generation of electric energy that
exceed ten percent (10%) of the total of such assets in
one operation, or twenty percent (20%) in total
operations in a period of twelve months, or
establishing mortgages or other types of real
encumbrances that exceed ten percent (10%) of the value
of the encumberable property and ownership rights in
only one operation, or twenty percent (20%) in total
operations in a period of twelve months, and
12. Approval of investment programs that involve an
increase in the assets pledged to generation for
amounts equal to or greater than the equivalent of
fifteen percent (15%) of the generation capacity of the
Company.
ARTICLE 44: ATTENDANCE QUORUM AND MAJORITY FOR RESOLUTIONS.- All
Special General Meetings shall be considered validly established
with the representation of at least two thirds of the shares
issued by the Company. In second and subsequent notices of
meetings issued in accordance with article 29 of these bylaws,
the Special General Meeting shall operate validly with the
representation of at least one third of the shares issued with a
right to vote. In either case the resolutions shall be adopted
with the affirmative vote of at least two thirds of the shares
present and/or represented that do not have an impediment of
expression. Defective or blank votes shall not be valid for the
count.
CHAPTER II
BOARD OF DIRECTORS
ARTICLE 45: MAKE-UP AND METHOD OF ELECTION.- The Company shall be
managed, with the broadest powers, by a Board of Directors made
up of seven (7) permanent members, who shall be elected by a
Regular General Meeting of Shareholders.
Pursuant to article 316 of the Code of Commerce, the Board shall
be made up of permanent directors and their respective alternates
for the majority and by permanent directors and their respective
alternates for the minority, provided that, in the case of the
directors for the minority, the minority shareholders that elect
them represent at least twenty-percent of the capital stock with
a right to vote in the Board. Otherwise, all the directors and
their alternates shall be elected with the vote of the absolute
majority of the shareholders present or represented on the Board
with the right to vote. The totality of the shareholders present
or represented with the right to vote may agree on the unanimous
election of the Board.
For the above purposes all voting for the election of directors
shall be held in an open, public manner and with identification
of the shareholders, such that the majority shareholders and the <PAGE>
minority shareholders can be determined based on complete lists
of candidates proposed by the shareholders. If after the first
vote the list of minority shareholders do not have at least the
required twenty percent, all the directors on the list by
majority shall be elected.
The identified minority of at least twenty percent shall hold a
special meeting at the same event in order to elect their two
directors or ratify as elected the two candidates with the
greatest number of votes that are on their list. The election or
ratification shall be made with the simple majority of the votes
of the minority shareholders present or represented at the
special meeting. If there is more than one minority that
represents at least twenty percent (20%) of the shares, the one
obtaining the greatest number of votes at the special meeting
shall name the directors by minority.
ARTICLE 46: OFFICERS.- At the first session following each
General Meeting of Shareholders at which directors are
designated, the latter shall elect from among their members a
Chairman, a Vice Chairman and a Director-Secretary.
ARTICLE 47: CHAIRMAN.- The Chairman of the Board has the legal
representation of the Company, without detriment to the
delegation of powers called for in article 60 of these bylaws.
The Chairman shall chair the meetings of the Board of Directors
and the Meetings of Shareholders of the Company. The Chairman may
be designated by the Board of Directors as the main executive
officer of the Company, with the title of "Executive President".
ARTICLE 48: VICE CHAIRMAN.- The Vice Chairman of the Board shall
substitute for the Chairman in his functions in all cases of
absence, inability or death of the holder of the position.
ARTICLE 49: DIRECTOR-SECRETARY.- The Director-Secretary shall be
responsible for preparing the minutes of all the Meetings of
Shareholders and of the Board of Directors, and he shall keep the
Book of Registration of Shares. The Director-Secretary must
handle the correspondence with respect to all matters entrusted
to him, issue certifications and keep the records of the Company,
exercising all other powers and obligations called for in these
bylaws.
ARTICLE 50: REQUIREMENTS OF ELIGIBILITY AND PROHIBITION OF
DELEGATION OF FUNCTIONS.- It is not necessary to be a shareholder
in order to be a member of Board of Directors of the Company. The
functions of the directors are essentially personal and may not
be exercised through delegation, subrogation, assignment or other
forms of conveyance.
ARTICLE 51: DURATION OF THE MANDATE.- The members of the Board of
Directors shall hold office for a period of two years, and they
may be reelected indefinitely. However, their mandate shall be
understood to be tacitly extended until their replacements take
office.<PAGE>
ARTICLE 52: TERMINATION OF THE MANDATE.- The directors are
obligated to continue performing their duties until the newly
elected ones assume their positions unless because of incapacity,
impediment or legal prohibition they have to cease their duties.
The directors shall cease performing their duties on the moment
on which the Special General Meeting decides to legally demand of
them the liability in which they have incurred. They shall be
restored to their duties when the legal authorities declare the
action brought against them unproven. A resignation from the
position of director must be submitted to the Board of Directors,
which may accept it provided it does not affect the normal
operation of the administration or reject it until the next
Ordinary General Meeting makes a decision. Meanwhile, the
director shall continue performing his duties with the inherent
responsibilities. The directors must cease their duties when they
devote themselves to activities that compete with those of the
corporate purpose without authorization from the Meeting itself
from whence his designation comes.
ARTICLE 53: COMPENSATION AND BOND.- The Regular General Meeting
of Shareholders shall decide the amount of daily allowances for
the directors. Each director, on taking office, must post a bond
in favor of the Company in the manner and for the amount that the
respective Regular Meeting of Shareholders decides.
ARTICLE 54: LIABILITIES.- The directors are liable, severally and
without limit, to the Company, shareholders and third parties in
the following cases:
1. For poor performance of their duties in accordance with
the stipulations of article 164 of the Code of
Commerce.
2. For non-compliance or violation of laws, bylaws,
regulations or resolutions of the Meetings.
3. For damages that are the result of deceit, fraud,
serious fault or abuse of powers.
4. For all distributions of earnings in violation of
article 168 of the Code of Commerce.
The suit for liability of the Company against the directors shall
be brought with the prior approval of the Regular General Meeting
of Shareholders, which shall appoint the person or persons
charged with bringing it forth.
The suit for liability shall not include the dissenting directors
who went on record as dissenting.
The liability of the directors toward the Company is extinguished
with the approval of their activities, through abandonment or
settlement agreed by the General Meeting of Shareholders.
ARTICLE 55: MEETINGS.- The Board of Directors shall meet as many
times as it deems necessary but at least once every three months,
at the summons of its Chairman or at the written request of any <PAGE>
of its members. However, the Board of Directors shall validly
meet at any time, without the need for a notice of meeting, if
all its members are present.
ARTICLE 56: QUORUM, RESOLUTIONS AND RIGHTS OF THE DIRECTORS.- The
Board of Directors of the Company shall meet validly with the
presence of at least four of its members, and its resolutions
shall be adopted with a simple majority of the votes of the
directors present. Each director has the right to one vote.
ARTICLE 57: RESOLUTIONS THAT REQUIRE A SPECIAL MAJORITY.- The
following resolutions of the Board of Directors must be adopted
with a special majority consisting of the favorable vote of five
Directors:
1. Entering into contracts or operations that involve
disposal, sale or transfer of assets or rights of the
Company with companies related to the shareholders of
the Company.
2. Entering into contracts or operations that involve
encumbrance, mortgage or lien or similar on assets or
rights of the Company with companies related to the
shareholders of the Company.
3. Entering into contracts or operations that involve
loans, payment obligations or similar, on assets or
rights of the Company with companies related to the
shareholders of the Company.
4. Entering into contracts of association, joint venture
or similar entered into between the Company and
companies related to the shareholders of the Company.
5. Acquiring in any manner or assigning or transferring in
any manner participation, shares, quotas of capital or
others, of companies related to the shareholders of the
Company.
6. Entering into contracts with companies related to the
shareholders of the Company that involve providing
services, the sale of goods or products, or others
corresponding to the corporate purpose of the Company.
7. The granting of guarantees by the company with respect
to business alien to the corporate purpose in favor of
shareholders or of third parties.
8. Granting of powers, mandates or representation of any
type to carry out any of the acts mentioned in the
above subsections.
For purposes of this article, by "related companies" are
understood those companies as defined in law 1604 (Law of
Electricity) of December 21, 1994.
The executives of the Company are personally responsible for
advising the Board of Directors of possible deals, legal acts or
contracts to be entered into with the related companies. The
resolutions of the Board of Directors with respect to such <PAGE>
contracts must be issued before they are entered into and in
specific fashion for each case, respecting in all circumstances
the specified special majority.
ARTICLE 58: MINUTES.- The deliberations and resolutions of the
Board of Directors shall consist of minutes transcribed in a
special book and shall be valid with the signatures of the
Chairman, the Secretary and all the Directors attending,
including those who have expressed their dissent with any of the
subjects discussed.
ARTICLE 59: POWERS AND RESPONSIBILITIES OF THE BOARD OF
DIRECTORS.- The following are powers and responsibilities of the
board of directors:
1. To legally represent the Company, judicially or
extrajudicially, through its Chairman and other
attorneys-in-fact without any limitation.
2. To direct and manage, with full powers, the affairs and
activities of the Company, with the broadest powers to
perform all acts, contracts and operations in
furtherance of the corporate objective.
3. To perform judicial and extrajudicial acts with the
power to bring suit, follow up on the subject of suits
with any type of authority, with sufficient legal
capacity and without any limitation, to abandon, to
accept abandonments, to settle, to submit matters to
arbitration, to make use of all ordinary and
extraordinary resources stipulated by the laws in all
their degrees and instances, and for all cases in which
the laws require special powers, the powers granted by
this article shall be sufficient without the express
absence of powers implying a limitation to its broad
administrative power.
4. To buy, sell, barter, rent, lease, donate and assign,
establish, accept and transfer pledges, mortgages and
all real rights of guarantee; to import, export; to
authorize new operations; to sign all types of
contracts.
5. To protect, care for and safeguard the property, rights
and interests of the Company.
6. To invest funds and, for those purposes, to acquire,
sell and transfer all types of titles representing
securities, whether national or foreign; to buy and
sell shares or interest in other Companies, with the
sole condition that any investment to be made
incorporates the limitation of liability of the
partners to the amount of their contributions.
7. To designate the executive personnel, attorneys-in-
fact, representatives and managers, setting in all
cases their powers, compensation and obligations,
granting them the authority and powers for them to
properly comply with their duties.<PAGE>
8. To arrange for, obtain and grant loans and financing,
whether from banking or financing institutions or any
individuals or corporations, national, foreign or
international, abiding by the respective regulations
and granting or requiring personal or real, collateral
or mortgage guarantees; to carry out all types of
banking operations, such as drawing, endorsing,
renewing, collecting, protesting and depositing checks;
to draw, accept, renew, endorse, vouch for, protest and
collect drafts, vouchers, promissory notes and other
mercantile documents; to request and obtain credits,
certificates of guarantee, checking account credits,
insurance policies, negotiating, executing and signing
the respective instruments.
9. To acquire personal and real property, to enter into
contracts for services, works, consignment, supplies,
transport, insurance and for carrying out business
dealings.
10. To establish and manage Companies for its own account
and for that of third parties and to have participation
in Companies that are already established.
11. To grant general and special powers of attorney to
individuals or corporations, partially delegating its
powers.
12. To call Regular and Special General Meetings of
Shareholders.
13. To approve the regulations of the Company and to
propose changes to the deed of incorporation and the
bylaws.
14. To designate authorized persons to use the corporate
signature in representation of the Company, granting to
them the necessary powers.
15. To establish or eliminate operations, agencies,
branches and offices, inside or outside the country.
16. To designate its Chairman, Vice Chairman, and Director-
Secretary.
17. To oversee the management, technical, financial and
labor movements for which the executive bodies are
responsible.
18. To grant extraordinary rewards and compensation
according to the results of management or the course of
corporate operations.
19. To analyze and approve the balance sheet, financial
statements and inventories of each management.
20. To submit for the consideration of the Meeting of
Shareholders, the annual report of each management, the
balance sheet, the financial statements and all
information pertaining to the course of corporate
operations, deciding their publication within ninety
days after the Regular General Meeting of Shareholders
has been made aware of them.
21. To propose to the Meeting of Shareholders the
establishment of ordinary or extraordinary reserves,
distribution of earnings or reinvestment of same,
totally or partially.<PAGE>
22. To comply with and enforce all stipulations under the
law, bylaws and regulations that govern its actions and
to comply with and implement the resolutions of the
General Meetings of Shareholders.
23. To keep a special book with the minutes of its meetings
and resolutions and those corresponding to the Meetings
of Shareholders.
24. To establish an executive committee and/or others that
it deems convenient for the best management of the
corporate line of business, setting its powers and
modes of operation for each case.
25. To approve the compensation of outside auditors.
26. All others that, while not expressly determined in the
above subsections, which are not limiting in nature,
are granted to it implicitly in order to comply with
the duties it has been charged with.
ARTICLE 60: DELEGATION OF POWERS.- The board may delegate to one
or more of its members, managers, administrators, attorneys-in-
fact or third parties, in whole or in part, the powers granted to
it by the bylaws with the exception of those that, because of
their nature, stipulation of the law or the bylaws, are exclusive
to its function.
ARTICLE 61: PROHIBITIONS.- The directors are prohibited from
committing the corporate signature to operations that are outside
the line of business proper to the Company, with liability for
damages, unless there is an express
resolution to the contrary decided by the General Meeting of
Shareholders.
ARTICLE 62: REPRESENTATION.- Unless there is an express
resolution to the contrary, public and private contracts, powers
of attorney and instruments in general granted by the Board of
Directors shall require the signature of the Chairman and the
Director-Secretary in order to be valid.
CHAPTER III
EXECUTIVE BODIES
ARTICLE 63: FUNCTIONS.- The executive functions and the
management of the affairs of the corporate purpose shall be the
responsibility of the Chairman of the Board of Directors, in case
he is designated as Executive President, of one or more managers,
administrators or attorneys-in-fact, as determined by the Board
of Directors through an express resolution in which are set the
respective powers, authorization, obligations and compensation,
granting the respective powers of attorney, as applicable, in
accordance with the stipulations of article 60 of these bylaws.<PAGE>
SECTION V
OVERSIGHT OF THE COMPANY
ARTICLE 64: SYNDICS.- The Corporation shall have two permanent
syndics and their respective alternates The minority shareholders
who together represent at least twenty percent of the capital
stock with a right to vote have a right to designate a syndic by
minority.
For the above purposes all voting for the election of syndics
shall be held in an open, public manner and with identification
of the shareholders, such that the majority shareholders and the
minority shareholders can be determined based on the candidates
proposed by the shareholders. If after the first vote the
candidates of the minority shareholders do not have at least the
required twenty percent, the two candidates proposed by majority
with the greatest number of votes shall be elected. If they were
to have it, the candidate for the majority that has obtained the
most votes shall be elected as syndic by majority.
The identified minority of at least twenty percent shall hold a
special meeting at the same event in order to elect its syndic or
ratify as elected the candidate with the greatest number of votes
that is on its list. The election or ratification shall be made
with the simple majority of the votes of the minority
shareholders present or represented at the special meeting. If
there is more than one minority that represents at least twenty
percent (20%) of the shares, the one obtaining the greatest
number of votes at the special meeting shall name the syndic.
ARTICLE 65: OVERSIGHT COMMISSION.- All the syndics shall act as a
collective body under the name of "Oversight Commission", which
must meet at least once every three months, at the summons of any
of its members, and one of its members elected for that purpose
must prepare the minutes of its meetings; such minutes must be
signed by all the syndics. Dissenting syndics may individually
exercise the rights and powers corresponding to their position.
Without detriment to the work of the Oversight Commission, the
syndics shall exercise their function independently and without
priority.
ARTICLE 66: ELIGIBILITY REQUIREMENTS AND LIMITATIONS.- It is not
necessary to be a shareholder in order to be a syndic of the
Company. No director or manager of the Company, nor their spouses
or relatives up to the fourth degree of consanguinity and second
degree of affinity according to civil calculations, may perform
the duties of syndic. There is also an incompatibility between
the functions of the syndic and the performance of any position
remunerated in permanent fashion in the Company.
ARTICLE 67: DURATION AND TERMINATION OF THE MANDATE.- The syndics
shall hold their offices for a period of two years, and they may
be reelected indefinitely. The syndics may be removed from office
at any time by decision of their mandators.<PAGE>
ARTICLE 68: COMPENSATION AND BOND.- The syndics shall receive the
compensation and shall post the bond decided by the Regular
General Meeting of Shareholders.
ARTICLE 69: FUNCTIONS.- The syndics shall perform the functions
of permanent oversight in accordance with the stipulations of the
Code of Commerce.
ARTICLE 70: SUPERVISION AND NOTICES OF MEETINGS.- The syndics
shall verify compliance with all the requirements that the law
and bylaws indicate for notices of Meetings and recording of
decisions. In the absence of the Board of Directors and when they
deem it necessary, they may call General Meetings of
Shareholders, Regular or Special, and they shall necessarily
attend to the liquidation of the Company when the latter is
decided.
ARTICLE 71: LIABILITIES.- The syndics are, in unlimited fashion
and severally, liable for non-compliance of the obligations set
forth in the law and bylaws. They shall also be severally liable
with the directors for the acts or omissions of the latter, even
if no damage is caused.
SECTION VI
BALANCES - RESERVE FUNDS - DIVIDENDS.
ARTICLE 72: BALANCE SHEET.- At the end of each economic period
the financial statements for all corporate operations shall be
prepared, including the balance sheet and statements of earnings,
which documents shall be submitted by the executive bodies of the
Company to the Board of Directors before the Regular General
Meeting of Shareholders is held. The Board of Directors shall
submit for consideration of the Meeting the documents in
question, together with its annual Report for the period in
question.
ARTICLE 73: CERTIFICATION OF THE BALANCE SHEET AND OUTSIDE
AUDIT.- The balance sheet of corporate operations submitted to
the General Meeting of Shareholders, in accordance with the
stipulations of the preceding article, must be certified by a
registered firm of outside auditors that complies with the
requirements of the Law of Electricity and its regulatory rules
and that is designated by a Regular General Meeting.
ARTICLE 74: RESERVE FUNDS.- Of the effective and liquid earnings
for each period, at least five percent shall be allocated to
establish a legal reserve fund until fifty percent of the paid-in
capital is covered. The Regular General Meeting of Shareholders
may decide to establish other reserves, ordinary or
extraordinary.<PAGE>
ARTICLE 75: DIVIDENDS.- It is the sole power of the Regular
General Meeting of Shareholders to determine the application of
corporate earnings. When the Meeting decides to distribute
dividends, such distribution shall be proportional to the paid-in
amount of the shares.
SECTION VII
DISSOLUTION - LIQUIDATION - PARTICIPATION
ARTICLE 76: DISSOLUTION.- Dissolution of the Company shall be
decided at a Special General Meeting of Shareholders expressly
called for that purpose for the following reasons:
1. Decision of the shareholders adopted at a Special
General Meeting.
2. Lapse of the term of duration of the Company, unless it
is extended.
3. Unexpected impossibility of complying with the
corporate purpose.
4. Loss of capital, in case the latter is insufficient to
comply with the purpose of the Company, unless there is
a repayment of increase.
5. Declaration of bankruptcy, unless a preventive
agreement is entered into.
6. Merger decided by a Special General Meeting of
Shareholders.
7. A reduction in the shareholders unless new shareholders
join in the period of three months.
ARTICLE 77: LIQUIDATING COMMISSION.- Dissolution of the Company
having been decided, a Liquidating Commission shall be
designated, responsible for implementing the wind-up of all of
the Company's outstanding operations and business.
ARTICLE 78: LEGAL REPRESENTATION.- The Liquidating Commission
shall have legal representation of the Company, without any
limitation, in all acts, activities and contracts that it carries
out in order to comply with its mission. Two shareholders shall
be designated especially by the Special General Meeting of
Shareholders to grant, on behalf of the Company, the necessary
powers to the members of the Liquidating Commission.
ARTICLE 79: MAKE-UP.- Designation of the Liquidating Commission
is governed by the stipulations of these bylaws applicable to
designation of the directors of the Company.
Persons who have previously performed functions of management or
administration in the Company, as well as shareholders or third
parties alien to the Company may be designated as members of the
Liquidating Commission, and the decision for that must be
recorded with the General Office of the Registry of Commerce and
Corporations.<PAGE>
ARTICLE 80: FUNCTIONS.- The Liquidating Commission shall have
broad powers to wind up the operations of the corporate line of
business and the sale of the property of the Company in the
manner that it deems most convenient and advantageous. It shall
have the same powers and authorization of the Board of Directors,
whose members shall cease their functions once the Liquidating
Commission assumes them.
ARTICLE 81: RESOLUTIONS OF THE LIQUIDATING COMMISSION.- The
resolutions of the Liquidating Commission shall be adopted by
absolute majority of the votes. The operations and contracts that
require a special majority in the voting of the Board of
Directors that must be performed as part of the process of
liquidation shall also require a special majority in the voting
of the Liquidating Commission. The special majority in the voting
of the Commission is governed by the stipulations of these bylaws
applicable to the Board of Directors.
ARTICLE 82: ACCOUNTS OF THE LIQUIDATION.- The Liquidating
Commission shall take a complete inventory and shall prepare a
balance of liquidation within thirty days of having taken office.
However, this period may be extended up to one hundred twenty
days by decision of the Special General Meeting of Shareholders.
The Liquidating Commission shall render an account to the
shareholders on the process of liquidation through reports that
it shall make available to the Special General Meeting with the
frequency that the latter decides on but at least every three
months.
ARTICLE 83: LIMITATIONS AND LIABILITIES.- The members of the
Liquidating Commission are strictly prohibited from carrying out
new operations or operations alien to the liquidation, and they
are liable to the Company and to third parties for the damages
and losses that they could cause to the property or interests the
handling and management of which are entrusted to them.
ARTICLE 84: DURATION OF THE MANDATE.- The functions of the
Liquidating Commission shall last for the time required to wind
up the liquidation operations. Its members shall cease their
mandate because of:
1. Conclusion of the liquidation;
2. Resignation; and
3. Removal from their functions at any time by decision of
their mandators.
ARTICLE 85: FINAL REPORT AND PROPOSAL FOR DISTRIBUTION OF THE NET
WORTH.- As the corporate goods are sold, the Liquidating
Commission shall proceed to pay the liabilities of the Company.
Once the totality of same is covered or as far as the amount of
the goods sold allows, the Liquidating Commission shall submits
its report, the final balance sheet and the proposal for
distribution of the net worth to the Special General Meeting of
Shareholders, determining the amount of liquid assets, if any, <PAGE>
and proposing the manner of distribution of the net worth. The
report shall also be signed by the syndics, and the Meeting may
approve or reject the accounts of liquidation. The distribution
of the liquid assets shall be made in a manner proportional to
the number of shares held by each shareholder. The distribution
shall proceed after approval of the proposal for distribution by
the Special General Meeting of Shareholders. All the final
documents prepared by the Liquidating Commission shall be
recorded with the General Office of the Registry of Commerce and
Corporations.
ARTICLE 86: EXTINCTION OF LEGAL CAPACITY.- The liquidators shall
take the steps to cancel the registration of the Company with the
General Office of the Registry of Commerce and Corporations, as
soon as the liquidation is completed, and the legal capacity of
the Company shall be extinguished as of that moment.
SECTION VIII
GENERAL STIPULATIONS
ARTICLE 87: ARBITRATION.- Except for matters related to
liquidation of the Company, amendment of the corporate contract,
exclusion and withdrawal of partners and the legal status of the
Company, all differences or disputes arising between the Company
and the shareholders regarding interpretation or application of
the stipulations of the corporate contract, of the bylaws, as
well as of amendments subsequently introduced, or of the
resolutions of the General Meetings of Shareholders, shall be
settled in arbitration in accordance with the stipulations of the
Code of Commerce.
ARTICLE 88: WAIVER TO THE JURISDICTIONAL WAY.- The arbitration
award that is handed down in unappealable fashion shall be
unappealable and definite, and the parties expressly waive the
judicial way.
ARTICLE 89: SUBMISSION TO SPECIAL LEGISLATION.- All that is not
stipulated in these bylaws shall be governed by the stipulations
of the Code of Commerce and other pertinent rules.
ARTICLE 90: AMENDMENT TO BYLAWS.- The bylaws may only be amended
through an express resolution of the Special Meeting of
Shareholders called especially for those purposes. This
resolution shall require the favorable vote of at least two
thirds of the paid-in shares.<PAGE>
Exhibit B-83
CERTIFICATE OF INCORPORATION
OF
EI BARRANQUILLA, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is EI Barranquilla, 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
Michael S. Shenberg c/o Berlack, Israels & Liberman LLP
120 West 45th Street
New York, New York 10036
SIXTH: 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.
SEVENTH: The board of directors of the corporation is
expressly authorized to adopt, amend or repeal by-laws of the
corporation.<PAGE>
EIGHTH: Elections of directors need not be by written
ballot except and to the extent provided in the by-laws of the
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this 10th
day of July, 1995.
Michael S. Shenberg
Sole Incorporator<PAGE>
Exhibit B-84
REPUBLIC OF COLOMBIA
SINGLE PUBLIC NOTARY OFFICE
SOLEDAD
FIFTH COPY OF THE PUBLIC DEED OF RECORD NO. 9994 DATED OCTOBER 14, 1994, OF
THE BYLAWS OF INCORPORATION OF TERMOBARRANQUILLA S.A. "TEBSA S.A. (E.S.P)".
JOSE MANUEL HERRERA I.
President of the Coastal
Association of Public Notaries
Office Number 1, Calle 15A No. 18-05
Office Number 2, Calle 16 No. 18-06
Telephones: 424965, 420408, 424754
Fax Number: 420418
<PAGE>
On the upper left hand corner there is a stamp that reads: Jose M. Herrera
Iranzo. Single Notary of the Soledad Circle. Public Notary. Next to it,
there is a stamp that reads: Jose M. Herrera Iranzo. Single Notary of the
Soledad Circle. There is a stamp that reads: Single Notary Office of the
Soledad Circle. Jose M. Herrera Iranzo. Below it there is a seal that
reads: Republic of Colombia. Superintendency of Public Notaries and
Recordation.
PUBLIC DEED NUMBER: NINE THOUSAND NINE HUNDRED AND NINETY FOUR (9.994).
TYPE OF ACTION: INCORPORATION OF "TERMOBARRANQUILLA S.A." "TEBSA S.A.
(E.S.P)".
ADDRESS: BARRANQUILLA.
AMOUNT: $3,268,000,000.00 (THREE BILLION TWO HUNDRED AND SIXTY MILLION
COLOMBIAN PESOS, LEGAL TENDER).
In the Municipality of Soledad, Atlantico Department, Republic of Colombia, on
the 14th day of the month of October Nineteen Hundred and Ninety-Four (1994),
come before me, RAFAEL HERRERA IRANZO, Single Notary in Charge of the Soledad
Circle, the following persons: (a) EDGARDO SOJO GONZALEZ, of age, domiciled in
the City of Barranquilla, and identified as shown next to his signature, who
acts in this instance on behalf of and in representation of, in his authority
as General Director (E) of CORPORACION ELECTRICA DE LA COSTA ATLANTICA -
CORELCA, an industrial and commercial corporation of the State at the national
level under the jurisdiction of the Ministry of Mining and Energy, created as
a public entity through Law 59 of 1967 and restructured as a commercial and
industrial state corporation through Decree 2121 of 1992, provided with legal
capacity and domiciled in the City of Barranquilla, a position to which he was
appointed by the President of the Republic of Colombia, through (...at the
bottom of the page there is a stamp that reads: "There is no charge to the
user for this paper"...) Decree 1628 dated July 29, 1994, and duly authorized
by the Board of Directors of CORELCA in its meeting dated July 29, 1994
(Minutes Number 415). (b) VYTAUTAS DIDZIULIS A., of age, domiciled in the
City of Fort Lauderdale, State of Florida, United States of America,
identified with American Passport No. 043301357, who acts at this time on
behalf of and in representation of LANCASTER STEEL CO., INC., an American
corporation duly incorporated in accordance with the Laws of the State of New
York, U.S.A., domiciled in the City of New York and with headquarters located
in the City of Dania, State of Florida, U.S.A., at 1125 N.E. 7th Avenue, in
his capacity as Legal Representative, all of which is certified through the
corresponding documentation which is presented duly legalized by the Ministry
of Foreign Relations, along with their corresponding Spanish translations,
duly authorized by the Board of Directors of said corporation at a meeting
that took place on July 26, 1994, whose Minutes are herewith attached for
notarization; (c) VYTIS JURGIS DIDZIULIS GRIGALIUNAS, of age, domiciled in
Santafe de Bogota, D.C., identified with National Identity Card No. 2,994,119
issued in Chia, who acts on behalf of and in representation of DISTRAL S.A.
(EMA), a Colombian open stock corporation domiciled in the City of Santafe de
Bogota D.C., in his capacity as Corporate Vice President, all of which is
documented with the incorporation and management certificate issued by the
Chamber of Commerce of Santafe de Bogota which is attached for its
notarization in this Public Deed of Record, along with a copy of the Minutes
No. 294 of the Board of Directors which, at a meeting held on September 17,
1993, authorized him to enter into this contract of incorporation; (d) ALGIS
DIDZIULIS ANTANAITIS, of age, domiciled in Santafe de Bogota D.C., and
identified with National Identity Card number 17,122,354 of Bogota, who acts
on behalf of and as personal representative of DISTRAL TERMICA C.A. (EMA), a
multinational Andean Venezuelan company, domiciled in the City of Maracaibo,
State of Zulia, Republic of Venezuela, and duly registered in the First
Commercial Registry of the State of Zulia Judiciary Circuit, in his capacity
as President of the Board of Directors, duly authorized by the Company's Board
of Directors in a meeting held on September 15, 1993 (Minutes No. 68), all of
which is certified with the certification issued by the Colombian General
Consulate in Caracas, which is duly notarized up to the Ministry of Foreign
Relations of Colombia and which copy is attached for notarization; (e) LUIS
CARLOS NEIRA MEJIA, of age, residing in the City of Santafe de Bogota,
identified with National Identity Card number 3,227,552 of Usaquen, who acts
in his capacity as Special Representative of the following corporations: 1) of
the U.S. commercial corporation named ABB ENERGY VENTURES, INC., a corporation
duly incorporated in accordance with the laws of the State of Delaware in the
United States of America, and with headquarters located at 202 Carnegie
Center, Suite 100, Princeton, New Jersey, all of which is certified through
the documents duly notarized up to the Ministry of Foreign Relations of
Colombia, which are submitted along with the Power of Attorney so that they be
attached to the Deed; (2) of the Swiss commercial corporation named ABB POWER
GENERATION LTD., domiciled in Baden, Switzerland, with Headquarters located in
Haselstrasse 16, 5400 Baden, all of which is certified through the documents
issued on its existence and representation of the corporation by the Office of
Commercial Registry in Argau, Switzerland and with the Power of Attorney
granted to him, documents which are certified up to the Ministry of Foreign
Relations of Colombia, and are herewith notarized in this Deed; and (3) of the
American corporation named ENERGY INITIATIVES, INC., domiciled in the City of
Dover, Kent County, State of Delaware, U.S.A., which is the place where the
company was incorporated, and with headquarters at One Upper Pond Road,
Parsippany, NJ, 07054, all of which he duly certified with the documentation
regarding the existence and representation of the Company, which along with
the Power of Attorney granted, certified up to the Ministry of Foreign
Relations of Colombia, are herewith submitted so that they become part of the
Public Deed and they stated: That acting in the above referred capacities as
Legal Representatives of the legal entities present in this act, they proceed
to constitute, as they actually do, a joint venture corporation, open stock
corporation, for profit, subject to the Colombian Laws, which shall be
governed by the following Bylaws.
CHAPTER I
NAME, ADDRESS, DURATION AND PURPOSE
ARTICLE 1st. NAME: The Corporate Name shall be known as "TERMOBARRANQUILLA
S.A. Empresa de Servicios Publicos" and it may use the acronym "TEBSA S.A.
(E.S.P)". It is a stock corporation, classified as a mixed economy company,
at the national level, indirect, subject to private law.
ARTICLE 2nd. PRINCIPAL DOMICILE, BRANCHES AND AGENCIES. The corporation's
domicile shall be the city of Barranquilla but the corporation may establish
by decision of the Board of Directors and in accordance with law and these
bylaws, branches or agencies in other locations within Colombia or abroad.
Whenever a decision is to be made on the establishment of branches or agencies
abroad, the corresponding decision shall be taken by the Board of Directors
who will observe the special majority referred to in the Second Paragraph of
Article 44 of these bylaws.
ARTICLE 3rd. DURATION. The corporation shall have a duration of 50 years,
from the date of its incorporation, even though it may be dissolved earlier or
extended in accordance with these bylaws and the laws.
ARTICLE 4th. PURPOSE. The purpose of the corporation is the generation and
rendering of electric energy service. Pursuant to its main objective, the
corporation may project, build, operate, maintain and commercially exploit
electrical power plants and substations, transmission lines, and all other
infrastructure necessary to generate and supply electric Energy, initiating
necessary actions to preserve the environment as well as to maintain good
relations with the community in the area of influence of its projects. In
addition, the corporation may purchase all personal and real property as
required; procure loans; grant its real and personal property as security for
its own obligations; execute or enter into all types of agreements, among
others and without limitation to purchase and sale, financial leases
(leasing), and in general, all types of civil, labor, commercial, industrial
or financial actions that are necessary or convenient to achieve its own
objectives, even entering into corporate agreements and purchasing shares or
participations [in partnership with another company], merging with other
corporations which have similar or the same purpose, merging with them or be
merged into them, as long as it all is directly related to the corporate
purpose and to promote its full development. PARAGRAPH. The corporation may
not be a guarantor of third party obligations nor of its own shareholders, nor
of members of the Board of Directors or of corporate officers, except in the
case of obligations as may be requested by the financial institutions
financing the Project. In this case, it shall be previously authorized by the
corporation's Board of Directors.
CHAPTER II
CAPITAL STOCK AND CONTRIBUTIONS
ARTICLE 5th. AUTHORIZED CAPITAL. The authorized capital of the corporation
is THREE BILLION TWO HUNDRED AND SIXTY EIGHT THOUSAND PESOS LEGAL TENDER.
($3,268,000,000.00) divided in THREE MILLION TWO HUNDRED AND SIXTY EIGHT
THOUSAND (3,268,000) nominal common and capital shares, with a nominal value
of one thousand pesos legal tender ($1,000.00) each, divided in two series:
Series A which shall be owned by CORELCA or by Government Entities and series
B which shall be owned by natural or legal persons, domestic or foreign, from
the private sector.
ARTICLE 6th. SUBSCRIBED AND PAID CAPITAL. Subscribed capital as of the date
of this public deed is in the amount of ONE BILLION SIX HUNDRED AND THIRTY
FOUR MILLION PESOS LEGAL TENDER ($1,634,000,000.00) and the paid capital is in
the amount of FIVE HUNDRED AND FORTY FOUR MILLION SIX HUNDRED AND SIXTY SIX
THOUSAND SIX HUNDRED AND SIXTY SEVEN PESOS legal tender ($544,666,667.00)
distributed as follows:
<PAGE>
<TABLE>
Subscribed Subscribed Paid in
Shareholder d Shares % Capital Capital Balance
<CAPTION>
<S> <C> <C> <C> <C> <C>
CORELCA 582.521 35.65 $ 582,521,000 $194,173,667 $ 388,347.333
ABB Energy
Ventures Inc. 404.252 24.74 $ 404,252,000 $134,750,667 $ 269,501.333
Energy
Initiatives Inc. 420.592 25.74 $ 420,592,000 $140,197,333 $ 280,394.667
ABB Power
Generation Ltd. 16.340 1.00 $ 16,340,000 $ 5,446,667 $ 10,893.333
Distral S.A. (EMA) 63.072 3.86 $ 63,072,000 $ 21,024,000 $ 42,048.000
Distral Termica
C.A. (EMA) 63.07 23.86 $ 63,072,000 $ 21,024,000 $ 42,048.000
Lancaster Steel
Co. Inc. 84.151 5.15 $ 84,151,000 $ 28,050,333 $ 56,100.667
Total 1,634.000 100 $1,634,000,000 $544,666,667 $1,089,333.333
</TABLE>
PARAGRAPH. On the date of incorporation of this company, the Corporacion
Electrica de la Costa Atlantica - CORELCA - subscribed the amount of FIVE
HUNDRED AND EIGHTY TWO MILLION FIVE HUNDRED AND TWENTY ONE THOUSAND PESOS
legal tender ($582,521,000.00) and paid the amount of ONE HUNDRED AND NINETY
FOUR MILLION ONE HUNDRED AND SEVENTY THREE THOUSAND SIX HUNDRED AND SIXTY
SEVEN PESOS legal tender ($194,173,667.00) through a contribution in kind of
part of the assets of the Termobarranquilla plant in Soledad in accordance
with the appraisal accepted unanimously by the shareholders in a preliminary
shareholders' assembly. The above mentioned assets are listed at the end of
this deed. Likewise, there has also been a contribution in cash in the amount
of THREE HUNDRED AND FIFTY MILLION FOUR HUNDRED AND NINETY THREE THOUSAND
PESOS LEGAL TENDER ($350,493,000.00) by the remainder shareholders in
accordance with the detail shown here. The balance to complete the subscribed
capital shall be paid one year from the date of incorporation of the company.
CHAPTER III
PROVISIONS ON SHARES AND RESERVES
ARTICLE 7th. CERTIFICATES. Corporate shares shall be represented by nominal,
ordinary and capital certificates which shall bear the signature of the
President and of the company's Secretary, they shall comply with all other
requirements established by the law and shall be issued in different series as
follows: Class A Series for shareholders that are Colombian governmental
entities and class B Series for private shareholders, numbered and continuous
for each Series, all in accordance with Articles 401 and 465 of the Commercial
Code.
<PAGE>
ARTICLE 8th. INDIVISIBILITY OF A SHARE. Shares are indivisible and
consequently, whenever because of any reason, either legal or conventional, a
share belongs to several persons, they must design a common single
representative that will exercise the rights corresponding to the status of
shareholder. In case there is no agreement, the representative of such shares
shall be appointed by the Judge of the corporate domicile in accordance with
law. The executor in possession of assets, shall represent the shares
belonging to an unliquidated succession. If there is no executor, the
representation shall be carried out by a person elected by majority of votes
by the recognized legal heirs in the corresponding process.
ARTICLE 9th. REVOCATION OF ISSUANCE OF SHARES Any issuance of shares may be
revoked or amended by the General Assembly, before they are offered for
placement, subject to legal or statutory requirements. Such revocation shall
be adopted with the favorable vote of 70% of the shares represented at the
meeting.
ARTICLE 10th. DEFAULT. Whenever a shareholder is in default in the payment
of installments for the shares it has subscribed, it may not exercise the
rights inherent to those shares. For this purpose, the corporation shall keep
records of the payments made and the pending balances. Should the corporation
have matured liabilities from shareholders due to installments of subscribed
shares, the corporation shall proceed, at the election of the Board of
Directors and subject to written notice sent to the defaulting shareholder ten
(10) calendar days in advance, to judicially demand payment or to sell, at the
responsibility and expense of such defaulting shareholder, through a
stockbroker, the shares that were subscribed. In the latter case, the shares
taken from the defaulting shareholder by the corporation shall be immediately
placed granting to the remaining shareholders a preferential right as is
regulated by Article 16 of these bylaws, subject in any case to the
restriction indicated in Article 14, Section 2, Item G.
ARTICLE 11th. TEMPORARY AND FINAL CERTIFICATES. The corporation shall issue
all share subscribers a certificate or certificates certifying such
shareholder status as such. While the value of shares are not entirely
covered, only temporary certificates shall be issued instead of final
certificates. In any event, transfer of temporary certificates shall be
subject to the same conditions as the transfer of final certificates, but the
transferrors and the transferees shall be jointly liable for unpaid amounts.
ARTICLE 12th. ISSUANCE OF DUPLICATES. In case of theft or burglary or total
loss of a nominal certificate, the corporation will replace it by delivering a
duplicate to the owner recorded in the share registry, certifying such fact
before the administrators and presenting the authenticated copy of the
corresponding police report or the corresponding proof, as the case may be.
Whenever the shareholder requests a duplicate as a result of loss of a
certificate, he/she shall provide the guarantee required by the Board of
Directors. In case of damage, issuance of the duplicate shall require the
delivery by the shareholder of the original certificates so that the
corporation may void them. Should the certificate appear, the owner of the
shares shall return the duplicate, which shall be destroyed by order of the
Board of Directors, and this action shall be recorded in the corresponding
minutes.
<PAGE>
ARTICLE 13th. SUBSCRIPTION OF ORDINARY SHARES. Shares which are not
subscribed at the time of incorporation and those issued afterwards by the
corporation shall be placed in accordance with the placement regulations
approved by the Board of Directors which shall be issued subject to the
regulations of the Commercial Code and all other corresponding provisions.
ARTICLE 14th. SALE OF SHARES. 1. Among the contracting parties, the sale of
shares shall be perfected by simple agreement, but for this action to have
effect with respect to the corporation and to third parties, and for the
transfer to be verified, it is required that a corresponding inscription be
made in the "Share Registry" book. The corporation shall make the inscription
and it shall issue the new certificate to the purchaser upon presentation of
the "Letter of Transfer" subscribed by the transferor, which may also be
accomplished through the endorsement of the certificate. Succession in the
ownership and on other real rights on shares resulting from death, shall be
accredited with the corresponding accessory of adjudication, to the
corporation's satisfaction. Should the transfer arise from a lawsuit,
submission of an authentic copy of the corresponding judgment shall be
required, with a certification of its execution. 2. The transfer of shares
is subject to the following regulations: A. The corporation shall not record
any transfer while the option to purchase as provided for in this section has
not expired. B. All shareholders, either from Series A or from Series B, who
attempt to transfer his/her shares, totally or partially, shall first offer
them to the other shareholders of the same Series, through the corporation's
President, through a written communication indicating the basis of the
proposed negotiation, i.e., the number of shares that he/she wishes to sell,
their price, methods for payment, etc. Within the three business days
following receipt of such communication, the President of the corporation
shall send a notice by certified mail, courier or confirmed fax to the other
shareholders of the same Series to their registered addresses, indicating the
number of shares that they have the right to purchase on a prorated basis. A
copy of such notice shall be sent to the shareholders of the other Series, to
their registered addresses, by any one of the same methods indicated. C.
Each shareholder of the same Series to whom an offer has been made, has a term
of thirty (30) calendar days from the date on which the President has sent the
notice set forth in item B) above, to decide whether or not he/she will
exercise his/her option. Said shareholder shall notify his/her decision to
the prospective seller through the corporation's President, through written
communication which will indicate whether all or a portion of the shares to
which he/she is entitled to purchase will be purchased, and whether or not
he/she will exercise the option to purchase the number of additional shares
that he/she would be entitled to purchase in case that any other shareholder
of the same Series does not exercise his/her right or does so only partially.
If any shareholder from the same Series allows the term to expire without
notifying in writing whether he/she will exercise the option referred to under
this section or advises that this right will be exercised only partially or
not exercised at all, it shall be understood that he/she waives his/her right
to purchase the corresponding number of shares in favor of the shareholder(s)
of the same Series that express their decision to purchase the remaining
shares corresponding to them and the negotiation shall be deemed to have taken
place in this manner. D. If one or more of the shareholders in the same
Series exercises, as provided for in letter C) above, the option to purchase
the totality or part of the shares being offered, but he/she considers the
conditions for the proposed transaction too burdensome, and he/she does not
<PAGE>
reach agreement with the prospective seller on the price and the conditions
for sale, such shareholder may request, within the time limits established in
letter C) above, that the price of shares be set by an expert appointed by
mutual agreement between the parties. Should there be no agreement on the
appointment of such an expert within 5 working days after the date in which
the expert evaluation was requested, any one of the parties may request that
the Colombian Banking Association appoint such expert within 15 calendar days.
In any case, the expert shall be from a duly recognized international
management consulting or investment banking firm. Such expert shall
communicate his/her decision in writing, within 30 calendar days following the
date of his appointment and shall indicate, in the decision, the manner in
which costs are to be divided between the interested parties. The cost of the
expert evaluation, as it has been indicated, shall be borne by the selling and
purchasing shareholders that requested the same in the proportions indicated
by the expert. It is expressly agreed that the opinion obtained shall be
firm, final and binding upon the parties.
E. If, in spite of having complied with the procedures provided for in
letters B), C) and D) above, the shareholder interested in transferring the
shares of the corporation, retains all or part of the shares that are intended
to be transferred either because the other shareholders of the same Series did
not exercise their option or they exercised it only partially, such
shareholder shall offer those shares to the shareholders of the other Series,
in accordance with the procedures provided for in Letters B), C) and D) of
this Number 2 and under the same terms, conditions and prices which were
offered to the shareholders of the same Series. F. If, in spite of having
complied with all the procedures established in letters B) to E) of this
number 2, the shareholder interested in selling his/her company shares retains
the totality or part of the shares which he/she is attempting to sell, said
shareholder may then sell those shares freely to third parties, provided such
sale is accomplished under terms that are not more favorable to the third
party purchaser than those that were offered to the other shareholders, for
which the seller has a period of six months from the date on which the
procedures established in letters B to E of this number 2 were exhausted.
Once the above indicated period has expired, if the seller has not transferred
the shares and persists is accomplishing such sale, such shareholder will have
to once again comply with the requirement of granting a first option to
purchase, in accordance with the procedures indicated under this number 2. G.
Under no circumstance shall total share participation of Series A shareholders
exceed 49% of the total corporate capital which includes Series A and B
shares. H. The restrictions established under this number 2, and
consequently the procedures established herein, shall not be applicable to
transfers of all of the shares owned by a Series B shareholder when such
transfer is made to a transferee that can be considered as the same Real
Beneficiary such shares as set forth in Article 39 of Resolution 1242 of 1993
issued by the Superintendency of Shares which, currently, are constituted by
the parent corporations and their subsidiaries.
PARAGRAPH: The right of preference regulated in this Article has been made
taking into account that, the act which authorized the creation of the
corporation, the Corporacion Electrica de la Costa Atlantica, CORELCA, was
also authorized to agree on the right of preference in the negotiation of
shares without being subject to the provisions of Articles 10 and 18 of Decree
130 of 1976, and all other applicable norms.
<PAGE>
ARTICLE 15th. SHARE REGISTRY BOOK. The corporation shall maintain a share
registry book in which the name, nationality, address, identification document
and the addresses of shareholders, temporary certificates, final certificates,
the number of shares corresponding to each shareholder, the certificate with
its corresponding number and Series, sales and transfers, liens, rights to use
and all other liens and limitations to ownership, attachment and judicial
lawsuits, as well as any other action subject to registration in accordance
with law, shall be recorded. The corporation shall acknowledge the status as
shareholder or holder of rights over shares only to the individual that is
actually recorded as such in the above mentioned book.
ARTICLE 16th. RIGHT OF SUBSCRIPTION. The shareholders shall have the right
to preferentially subscribe in any new issuance of shares a number of shares
of the same class as the class of which it is a shareholder, on a proportional
basis to the shares held by such shareholder on the date in which the
corresponding corporate body approves the placement regulation.
The notice of the offer of shares shall be made through the same means of
communications as provided for by these bylaws to convene assembly. The
deadline to subscribe the shares shall not be less than thirty (30) business
days from the date of the offer. The same preference, with regard to
beneficiary, class and ratios shall be applied to the sale of shares
repurchased by the corporation whenever the Board of Directors decides to once
again place them in circulation, unless the shareholders decide otherwise in
the Assembly.
PARAGRAPH: It is understood that the restriction indicated in Article 14,
Number 2, Letter G of these bylaws shall be applicable in the cases provided
for in this Article.
ARTICLE 17. PURCHASE OF ITS OWN SHARES. The corporation may purchase its own
shares whenever this is so decided by the assembly with a favorable vote of
70% of the subscribed shares for both Series A and Series B. For this
purpose, it will employ funds taken from net income and it shall be required
that the shares be fully issued. While these shares are owned by the
corporation, the rights inherent to such shares shall be suspended. It is
understood that in the relevant vote, the shareholder interested in the sale
may not vote on the decision. Likewise, it is established that in the event
that one or more of the shareholders voting disagree over the price, if there
is no agreement on the price with the shareholder that wishes to sell the
shares, an expert evaluation be conducted in accordance with the provisions
established in letter D), number 2 of Article 14 of these bylaws. In case
that the corporation decides to repurchase its shares, preferential rights
shall be given for all shareholders to participate on a percentage basis in
such operation.
ARTICLE 18th. SHARES GRANTED AS COLLATERAL. When shares are granted as
collateral, these shares shall not provide the creditor with the rights
inherent to the status of shareholder except in the case that this is
expressly provided. The document or writing in which the corresponding
agreement is recorded shall be enough to exercise before the corporation the
rights granted to the creditor lienholder.
ARTICLE 19th. TAXES. All taxes and expenses incurred on the transfer of the
shares and the issuance of the certificates as well as any other expense
related to the transfer of shares shall be the responsibility of the parties
participating in the transaction.
<PAGE>
ARTICLE 20th. ATTACHMENT OR LITIGATION OVER SHARE OWNERSHIP. Whenever
attachment or litigation arise regarding ownership of the corporation's
shares, entries shall be made related to lien rights constituted on the
shares, the limitations on ownership of the same, attachments and civil
lawsuits, in the book called "Share Registry". Once the registration is made,
the corporation shall communicate this in writing to the owner of the shares,
to the lienholder creditor, to the individual beneficiary of the limitations
or to the competent authority, as the case may be. Likewise, the corporation
shall abstain from recording any transfer from the date in which it has been
informed by the competent authority of such attachment or litigation.
ARTICLE 21st. REGISTRATION OF TRANSFER OF SHARES. Registration of transfers
of shares as referred to in Article 14th, shall be made having in the line of
sight either the Letter of Transfer executed by the seller or the certificate
duly endorsed.
ARTICLE 22nd. RIGHTS CONFERRED BY ORDINARY SHARES. Notwithstanding the
provisions on the temporary Article of these bylaws, ordinary shares of both
Series A and Series B, grant their owners the following substantial rights: a)
participation in the deliberations of the General Assembly of Shareholder's
and right to vote in them with one vote for each share, that is as many votes
as shares owned. b) Receipt of a proportional part of the corporation's
profits. c) To negotiate shares subject to the preferential rights provided
for by Article 14th of the Bylaws and law. d) To inspect freely, personally
or through representatives, the books and corporate papers, within the month
prior to the meetings of the General Assembly of Shareholders in which end of
fiscal year balance sheets are examined. e) To receive a proportional part of
corporate assets at the time of its liquidation, once the corporation's
external liabilities have been paid.
ARTICLE 23rd. LEGAL RESERVE. The corporation shall reserve ten per cent
(10%) of the net income of each fiscal year until it completes fifty per cent
(50%) of subscribed capital and thus constitute the legal reserve. Should
this reserve decrease under any circumstance, and below the legal limit, the
corporation shall continue to appropriate the same ten per cent (10%) of net
income for the following fiscal years until the legal reserve reaches once
again the limit established.
ARTICLE 24th. OCCASIONAL RESERVES. The General Assembly of Shareholders may
establish occasional reserves, if and when they are specifically earmarked and
are duly justified. These shall be accomplished subject to legal provisions.
CHAPTER IV
CORPORATE BODIES
ARTICLE 25th. CLASSIFICATION. The corporation has the following executive,
administrative and auditing bodies:
1. General Assembly of Shareholders
2. Board of Directors
3. President and Vice-Presidents of the corporation
4. Auditor (Fiscal Supervisor)
5. Secretary General
<PAGE>
TITLE I
SHAREHOLDERS' ANNUAL MEETING
ARTICLE 26th. COMPOSITION. The General Assembly of Shareholders is composed
of the shareholders registered in the share registry book or of
representatives or de facto attorneys, meeting in accordance with the
provisions of these bylaws and of law.
ARTICLE 27th. REPRESENTATION. Shareholders may be represented at the
meetings of the Assembly through a Power of Attorney granted in writing or
sent by fax and confirmed with its original sent by courier, in which the
following is indicated: the name of the attorney, the individual that may
substitute him, and the date of the meeting for which the authority is
granted. The power may be valid for two or more meetings of the Assembly, but
in such case it shall be granted through public deed or by a legally
recognized document.
ARTICLE 28th. RESTRICTIONS. Except in cases of Legal Representation, the
administrators, members of the Board of Directors, and company employees,
while they are discharging their duties, cannot represent at the Shareholders'
Meetings, shares different from their own nor replace the Power of Attorney
granted to them to this effect. Neither can they vote on the approval of
balance sheets and end of fiscal year accounts nor on the liquidation
accounts.
ARTICLE 29th. DUTIES. The General Assembly of Shareholders exercises the
following functions:
1. Adopt the measures required by the interest of the corporation.
2. Freely elect and remove the principal and alternate members of the Board
of Directors. Members of the Board of Directors shall be removed by simple
majority, but the individuals who have resigned or those removed may not be
replaced in partial elections, without calling new elections by the electoral
quotient system [sistema de cuociente electoral], unless the vacancies are
filled unanimously.
3. Order the corresponding actions against administrators, members of the
Board of Directors, managing staff or the fiscal auditor.
4. Consider the reports presented by the Board of Directors and the Fiscal
Auditor, approve or object to the end of the fiscal year balance sheets and
approve or dispute the accounts that are to be submitted along such balance
sheets.
5. Decide on the reserves to be constituted aside from those provided by law.
6. Decree the distribution of profit, in accordance with legal provisions,
and observing the restrictions imposed by financing parties in the credit
agreements granted to finance the project. Dividends thus decreed, shall be
paid within a term of one year and at least in four quarterly installments,
unless the Assembly decides otherwise with the vote of 70% of the shares
present at the meeting.
7. Review and approve the amendments to the bylaws with the favorable vote of
70% of subscribed shares.
8. Appraise the assets in kind that are to be received in payment for
subscription of shares, with the vote of 60% of the subscribed shares, which
60% shall be determined after making necessary vote deductions for the
property contributor who shall not be allowed to vote.
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9. With the vote of 70% of the shares attending, decide that certain issuance
of ordinary shares be placed without being subject to the preferential right.
10. With the favorable vote of at least 70% of the shares represented, cancel
the issuance of shares which have not been offered for marketing.
11. Appoint the corporation's liquidator as well as the Fiscal Auditor and
his/her alternate.
12. Delegate to the Board of Directors or the President those duties which
are not prohibited by law to be delegated.
13. Exercise all other duties as may be required by law or these by-laws and
which are not prohibited by law and that have not been assigned or delegated
to the Board of Directors or the President.
ARTICLE 30th. TYPES OF MEETINGS. The meetings of the General Assembly may be
regular or special. Such meetings may also be held without prior notice and
in any place, provided all subscribed shares are represented.
ARTICLE 31st. REGULAR MEETINGS. Within the first three months of each year,
after a call is made by the Board of Directors or by the President, the
General Assembly of Shareholders shall meet in regular session. The call to
regular meetings shall be made by the President of the corporation or by the
Board of Directors through notice to be published in a newspaper with national
circulation, at least one month in advance, excluding from such term the date
of publication of the announcement and the date of the meeting. Additionally,
written notice shall be given to each shareholder through communication sent
by certified mail or courier to the last address registered by such
shareholders with the corporation. If this latter notice is not sent or if it
is sent after the date in which the newspaper notice is published or if the
date and place indicated in the communication sent to the shareholder differs
from that published in the newspaper notice, the Assembly shall not be
considered duly convened; if this notice is given on the same day or prior to
the date of publication of the newspaper notice, the meeting of the Assembly
shall be held on the date indicated in the above mentioned newspaper notice if
the date indicated in such newspaper notice is the same as that indicated in
the written notice to the shareholders.
ARTICLE 32nd. SPECIAL MEETINGS. Special Shareholders Meetings shall take
place whenever required by the unforeseen or urgent corporate needs, by a call
from the Board of Directors, the Legal Representative or the Fiscal Auditor,
on their own initiative, or when so requested by a number of shareholders
representing one quarter (1/4) or more of the subscribed shares. The call for
Special Shareholders' Meetings shall be made the same way as for the regular
meetings, at least ten (10) days in advance, except if end of fiscal year
balance sheets are to be reviewed, in which case the call shall be made at
least one calendar month in advance of the date of the meeting. In the call
for special meetings the agenda shall be included and the Assembly may not
make decisions on different issues, however, with the favorable vote of 70% of
the shares represented, it will be possible to address other matters once the
published agenda has been exhausted and, in any case, the administrators and
all other officials who are appointed by the Assembly, may be removed.
ARTICLE 33rd. MEETINGS ON THEIR OWN RIGHT. If at the end of the month of
March the Assembly has not yet been convened for its regular meeting, the
Assembly shall meet by its own right without need for a call, on the first
working day of the month of April at 10:00 a.m., in the offices of the
principal domicile of the company.
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ARTICLE 34th. MEETINGS WITHOUT PRIOR CALL. The General Assembly may meet
without prior call and at any place when all the subscribed shares are
represented.
ARTICLE 35th. QUORUM FOR DELIBERATIONS. The Assembly may deliberate in the
regular and special meetings with a plural number of shareholders representing
fifty one per cent (51%) of subscribed shares.
ARTICLE 36th. QUORUM TO ADOPT DECISIONS. For all decisions of the General
Assembly of Shareholders, the favorable vote of a plural number of
shareholders representing half of the shares plus one of the shares
represented at the meeting shall be required, unless in those cases in which
the law or the bylaws require a special quorum.
ARTICLE 37th. SPECIAL QUORUM FOR MEETINGS CONVENED FOR THE SECOND TIME OR
HELD BY THEIR OWN RIGHT. If the Assembly is called and it does not take place
due to a lack of quorum, a new meeting shall be called which shall take place
and will decide validly with a plural number of persons present, regardless of
how many shares are represented. This meeting shall take not take place prior
to ten (10) business days nor after thirty (30) business from the date set for
the first meeting. When the Assembly meets at their regular meeting by its
own right on the first business day of April, it may also deliberate and
decide validly in the way described above.
ARTICLE 38th. MINUTES. Decisions of the General Assembly of Shareholders
shall be recorded in minutes approved by such General Assembly or by the
individuals appointed at the meeting for such purpose, and signed by the
President and the Secretary of such Assembly, and in their absence, by the
Fiscal Auditor.
ARTICLE 39th. BINDING DECISIONS. The decisions of the Assembly, adopted with
the requirements provided by the law and in these bylaws, will bind all
shareholders including those that are absent or who are in opposition, if and
when these are of a general nature, without limitation to the legal actions
that the latter may bring.
ARTICLE 40th. VOTING. Each shareholder shall have the right to issue as many
votes as shares owned in the corporate capital.
ARTICLE 41st. ELECTIONS. Anytime two or more individuals to the same board,
commission or committee ["cuerpo colegiado"], the "cuociente electoral" system
shall be applied as set forth in the Commercial Code, taking into account the
provisions of Article 19.16 of Law 142 of 1994.
TITLE II
BOARD OF DIRECTORS
ARTICLE 42nd. MEMBERSHIP. The Board of Directors is composed of five (5)
main members each one of whom shall have a first and second personal
alternates.
PARAGRAPH: Members of the Board of Directors shall be elected by the General
Assembly of Shareholders for one year periods by the "cuociente electoral"
system. Such members may be reelected indefinitely or removed at any time.
<PAGE>
ARTICLE 43rd. REGULAR AND SPECIAL MEETINGS. The Board of Directors shall
hold regular meetings by their own right, at least: (a) Once a month during
the period of construction of the new plant and six additional months, and (b)
once quarterly after expiration of the period mentioned above. The Board
shall also hold special meetings when such meetings are called by the Board,
by the corporation's President, by the Fiscal Auditor or by two of its members
acting as principals. In the notice for Board of Directors meetings, the
Secretary shall include the agenda to be discussed. Regular meetings shall be
called with at least five (5) calendar days prior to such meeting, taking into
account the schedule of meetings established by the Board of Directors at the
first meeting each year.
ARTICLE 44th. QUORUM TO DELIBERATE AND DECIDE. The Board shall deliberate
validly with the presence of the absolute majority of its members and shall
decide validly with the favorable vote of three of the members acting as
principals, except in such cases expressly regulated by these bylaws where a
special majority is required.
In the Board of Director's meetings, the President of the corporation shall
have voice but no vote, except in the case where such President acts as a
member of such Board. FIRST PARAGRAPH: Notwithstanding the foregoing, the
favorable vote of the absolute majority plus one of the members present shall
be required in a certain meeting to make the following decisions: (a) to
establish branches or agencies outside the country, appoint and establish the
powers of the individuals who will manage such branches or agencies, (b) to
enter into any kind of agreements with any of its shareholders or their parent
companies, affiliates, subsidiaries or subordinates with the exception of
initial contracts for the Purchase of Energy (PPA), Engineering, Installation
and Construction (EPC), Operation and Maintenance (O&M), Supply of Parts and
Spare Parts appearing as a commitment in the O&M, Transfer of Assets (APA),
and Supply of Fuel (FSA) as the shareholders have already reached agreement on
such contracts prior to the incorporation of the company, c) complete or amend
the contracts on Engineering, Installation and Construction (EPC), Operation
and Maintenance (O&M), Transfer of Assets (APA), and Supply of Fuel (FSA), (d)
purchase of shares or corporate interests and/or shares both in new
corporations as well as those already existing, e) for the purchase and sale
of real property, and (f) all matters related to contracting or amendments to
be introduced to the credit agreements that were agreed upon prior to the
corporation's incorporation date.
SECOND PARAGRAPH: It is understood that the majority plus one shall be
constituted as follows: When 4 Directors are present, a decision shall
require, in order to be adopted, the vote of at least 3 Directors, and when 5
Directors are present, then the majority shall be constituted by 4. THIRD
PARAGRAPH. The minutes of the meetings shall be signed by the President of
the Board and the Secretary.
ARTICLE 45th. PRESIDENCY. The Board of Directors shall have a President
elected from within. Likewise, it shall have a Secretary who may or may not
be a member of the Board, appointed as provided for in these bylaws.
<PAGE>
ARTICLE 46th. DUTIES. The Board of Directors' duties are:
1. Freely appoint and remove the President and at least two (2) Vice
Presidents who shall act as its alternates, as well as setting their
remuneration.
2. Develop its own regulations.
3. Call the General Assembly to the regular and special meetings, as long as
in the case of the latter the Board deems them convenient or necessary or if
the Board receives an order to do so from the Superintendency of Corporations,
or at the request of a plural number of shareholders representing at least one
fourth of the subscribed shares.
4. Deliver a consultative vote to the Presidency when the Presidency requests
it or as determined by the bylaws.
5. Submit to the General Assembly the accounts, the end of fiscal year
balances with itemized profits and losses, profit distribution projections,
and a economic and financial report with the statistical data required by law.
6. Be informed of resignations, excuses and leaves of absence, as well as
making decisions on such resignations, excuses and leaves of absence, for
such officials for whose appointments it is responsible.
7. Examine, as the Board may require, by itself or through a committee, the
accounting books, the minute book, the shareholder registry book, invoices,
correspondence, documents, securities and, in general, all of the files of the
corporation, as well as its installations, machinery, equipment and all other
assets.
8. Establish branches and agencies within the country or abroad, appoint and
establish the powers of those that will manage them, complying in this respect
with the formalities required by law, as well as determining the standards for
their operation. With regard to the establishment of branches or agencies
abroad, the decision shall be made with the special majority of votes provided
for in Article 44th.
9. Authorize the execution of corporate contracts in which the corporation
becomes a partner or a shareholder as well as the purchase of shares or
corporate participations in existing companies, observing the special majority
provided for in Article 44th of these bylaws.
10. Grant its prior approval for the acts or contracts which regardless of
their amount have as their objective:
- To mortgage or limit real estate;
- Place liens on personal property;
- Divided real estate.
- Give and receive money with the understanding that the Board of Directors
shall take into account the restrictions imposed by the financial entities
that grant loans to carry out the projects undertaken by the corporation.
With the majority provided for in Article 44th: (a) purchase or sell real
property; (b) enter into agreements with any shareholder or its parent
company, affiliates, subsidiaries or subordinates with the exception of those
mentioned in letter (b) of the First Paragraph of Article 44th of these
bylaws, and applying the majority provided for in such Article; (c) authorize
amendments to the loan agreements referred to under letter (f) of Article
44th.
11. Authorize the corporation to grant the guaranties under the terms of the
Paragraph of Article Fourth.
<PAGE>
12. Authorize the execution of all those acts or agreements other than those
mentioned in the letter above, whenever any of their amounts exceeds US
$60,000.00 converted to Colombian Pesos at the representative market rate, or
its equivalent, certified by the corresponding governmental entity, on the
date of entering into the act or agreement. It is understood that the
President is not permitted to divide contracts and, therefore, if this becomes
necessary, the President shall be required to request authorization to do so
from the Board of Directors whenever the aggregate amounts exceed the limit
indicated above. Notwithstanding the foregoing, the President may act freely,
without need to request prior authorization from the Board of Directors, in
the execution of acts or contracts that: (a) in the aggregate during a
quarter do not exceed the total value of the budget approved by the Board of
Directors for such quarter, plus ten per cent (10%) of such budget, or (b) are
required to avert an emergency which requires immediate action from the
President to re-establish the power generation plant to the necessary
condition for the due compliance with the obligations imposed upon the
corporation in the agreement for Purchase of Energy Services (PPA), or to
eliminate any circumstance that involves imminent danger to (i) the safety of
the above referred plant, (ii) the environment, or (iii) the health of its
workers or of the population of the plant's area of influence, without
exceeding USD 2,000,000 or its equivalent in Colombian pesos converted at the
representative market rate.
In the event that actions or agreements that are necessary to avert the
circumstances referred to in this letter b) exceed, in the aggregate the
amount of USD 2,000,000, the President may execute such actions or agreements
provided that after consulting with all members of the Board of Directors
acting as principals, (i) he receives confirmation by fax from no less than 3
of the above referred members and (2) that those acts or agreements do not
represent a modification or addition to the energy generation plant, and,
therefore, are intended to repair the above mentioned plant and or repair or
replace components of such plant. Whatever the circumstance under this letter
b), the President is required to convene a Board of Directors meetings within
10 calendar days following the occurrence of the emergency situation, with the
purpose of informing the Board on the actions, the acts and the agreements
executed to mitigate or avert it. In the event that at least two of members
of the Board of Directors disagree with the causes indicated by the President
that constitute an emergency and/or with the corrective measures adopted to
solve the difference, a technical expert shall be called upon who shall be
appointed by the President and by the dissident members in accordance with the
procedures established under the contract for the purchase of energy service
for the resolution of technical disputes. In the event that the expert's
determination is not favorable to the President, the President shall be liable
under the provisions of law for the decision(s) adopted.
13. Provide the corporation's President the instructions, guidance and orders
that it deems convenient.
14. Decide on the allotments that are to be transferred to special funds.
15. Approve the regulations on the placement of shares.
16. Regulate, subject to preferential rights, the placement of shares which
have been taken from a shareholder in the case provided for in article 10th of
these bylaws.
17. Create, vary, cancel, organize and, in general, decide on the number, the
nature, the ranking order, duties and appointments for the positions deemed
necessary for the sound administration of corporate business, deciding on the
internal structure of the corporation.
<PAGE>
18. Approve the general corporate budget, which shall include the quarterly
budget which shall serve as the basis for determining the authority of the
President in the case referred to under number 6 of Article 49th of these
bylaws as well as the investment programs and the monitoring of their strict
compliance.
19. Authorize the President to confer general and special powers different
from those necessary to manage the administrative and judicial matters
including those that are indispensable for proceeding with out of court
settlements.
20. Authorize the President to enter into collective bargain agreements or
labor contracts.
21. Verify the test balance sheets submitted by the President.
22. Exercise all other duties as are conferred by law.
PARAGRAPH. Any doubt or conflict as to the duties or authority of the Board
of Directors and of the corporation's President, shall always be resolved in
favor of the Board of Directors and conflicts between the Board and the
General Assembly shall in turn be resolved in favor of the Assembly.
TITLE III
PRESIDENT
ARTICLE 47th. LEGAL REPRESENTATION. The corporation shall have a President
who shall be its legal representative and who shall be in charge of the
administration and management of corporate business subject to law and to
these bylaws. The President shall have no less than two alternates: the first
and the second who shall be denominated Vice Presidents, and who shall replace
the President in order in the President's absolute, accidental or temporary
absences, which Vice Presidents shall be elected by the Board of Directors.
ARTICLE 48th. APPOINTMENT AND TENURE. The President and his alternates shall
be appointed by the Board of Directors. Their mandate shall be for one year
from the date of their election but may be reelected indefinitely or freely
removed before the term is completed. Whenever the Board does not appoint the
President or his alternates at the time when it should do so, the previous
officials shall remain at their posts until the new appointments are made.
PARAGRAPH: For the election of the corporation's President, the following
procedure shall be followed: A) The Board of Directors shall seek that its
appointment be made, in the first place, with the favorable vote of the
majority as defined in Paragraph Second of Article 44th of these bylaws. B)
In case that the appointment is not achieved in accordance with the provision
of the above section during a Board of Directors meeting, then such Board, at
the meeting where no decision was made, shall appoint from within a commission
constituted by three (3) of its members which shall present to the remaining
members a list of three (3) candidates; the Board of Directors shall have
three (3) business days from the date of receipt of the list to submit their
comments in writing with regard to the nominees; C) if the Board of Directors,
with the same majority cited in Paragraph Second of Article 44th, finds that
none of the candidates submitted meets, according to its judgment, the
necessary qualifications to serve as President then, within the same time
limit referred to in the section above, it shall state so in writing to the
commission; such commission shall present a new list of three individuals
within ten (10) calendar days after receipt of the above mentioned
<PAGE>
communication; D) the list with three names referred to in the above section
shall be subject to the same process as set forth in sections B) and C) above;
E) the list of three individuals submitted in accordance with the above
section shall be the last; F) No more than one (1) calendar month shall elapse
between the beginning of the process and its end; and G) Any of the instances
cited in which consensus is achieved on the candidate presented, will bind the
Board of Directors to elect such candidate except in the case where the
deadline referred to in above section has expired without there being a
consensus, in which case the Board of Directors shall be free to elect by
simple majority the individual who in its loyal understanding it considers
should act as President and legal representative of the corporation.
Likewise, the Board of Directors shall decide by simple majority on the
election of the President in case that no agreement is reached after
submission of the last list of three candidates and, naturally, when this has
occurred within the terms provided for in this Article.
ARTICLE 49th. DUTIES. The President shall carry out all functions in
accordance with the nature of his position and especially the following:
1. Manage the corporation in accordance with his authority and with the
decisions of the General Assembly of Shareholders and of the Board of
Directors.
2. Represent the corporation judicially and extrajudicially before the
shareholders, third parties and all types of judicial and administrative
authorities.
3. Execute all agreements and resolutions of the General Assembly and of the
Board of Directors.
4. Appoint, suspend, sanction and freely remove all corporate employees, with
the exception of such employees whose appointment is not within his authority.
5. Prepare the corporation's annual budget, with quarterly assignment of
expenses and its submission for the approval of the Board of Directors.
6. Enter into or execute on his own all actions, agreements and operations
intended to comply with corporate objectives, except those that are under the
exclusive authority of the Assembly or the Board of Directors. The President
shall submit and obtain prior authorization from the Board of Directors to
enter into any action or agreement of those referred to in numbers 9, 10, 11,
14 and 19 of Article 46th of these bylaws. Notwithstanding the foregoing, the
President may act freely without prior authorization from the Board of
Directors to enter into acts or agreements which: (a) in the aggregate during
a quarter do not exceed the total value of the budget approved by the Board of
Directors for said quarter plus ten per cent (10%) of such budget, or (b) are
required to avert an emergency that requires immediate action from the
President to reestablish the energy generation plant to the condition
necessary to duly comply with the obligations imposed upon the corporation in
the agreement for Purchase of Energy Service (PPA), or to eliminate any
circumstance that implies an imminent danger to (i) the safety of the above
mentioned plant, (ii) the environment, or (iii) the health of its workers or
that of the population in the plant's area of influence, without exceeding
US$2,000,000.00 or its equivalent in Colombian pesos once converted at the
representative market rate.
In the event that the actions or agreements that are needed to avert the
emergency circumstances referred to in this section b) exceed in the aggregate
the amount of US$2,000,000.00, then the President may execute them as long as
after consulting with all of the members of the Board of Directors acting as
<PAGE>
principals (1) the President obtains confirmation by fax, from no less than
three of the above referred members, and (2) that such acts or agreements do
not represent a modification or addition to the energy generation plant and,
therefore, are intended to repair the above mentioned plant and/or to repair o
replace components of the same plant.
Whatever case arises under this section b), the President shall have the
obligation to call a Board of Directors meeting within 10 calendar days
following the occurrence of the emergency situation, with the purpose of
informing such Board of the actions and acts and agreements executed to
mitigate or avert such emergency.
7. Discharge the duties that by virtue of explicit delegation from the
General Assembly of Shareholders or from the Board of Directors, are
temporarily or under special circumstances assigned to the President.
8. Monitor the proper and timely compliance of all of the corporation's tax
responsibilities.
9. Submit to the General Assembly of Shareholders a written report on the
manner in which he has carried out his duties, indicating what actions he
recommends be adopted.
10. Authorize with his signature all public or private documents that need to
be issued in the development of the corporation's activities or interests.
11. Appoint and remove any corporation official in accordance with the
corresponding Labor Regulations, as well as decide on resignations, annual
leave and special leave. Notwithstanding the foregoing, the appointment of
the General Secretary shall have the approval of the corporation's Board of
Directors.
12. Carry out all other duties as assigned by law, the General Assembly and
the Board of Directors.
13. Appoint all legal representatives for court and for out of court
settlements which are necessary to assist with suits and claims that are
presented against the corporation, as well as to deal with all administrative
matters. With respect to the granting of general or special powers for
matters other than those specified herein, the President must obtain prior
authorization from the Board of Directors.
14. Prepare monthly test balances and present them to the Board of Directors
at each of its meetings.
TITLE IV
FISCAL AUDITOR
ARTICLE 50th. APPOINTMENT. The corporation shall have a Fiscal Auditor who
may be a natural or legal person. If the Fiscal Auditor is a natural person,
he shall have an alternate who will replace him in his absolute, temporary and
accidental absences. They shall be appointed by the General Assembly of
Shareholders for one (1) year periods, but they may be reelected indefinitely
or removed by the Assembly at any time.
ARTICLE 51st. DUTIES. The Fiscal Auditor shall have the following duties: a)
Monitor that the execution or compliance of operations made on behalf of the
corporation adhere to the provisions of the bylaws, the General Assembly of
Shareholders and the Board of Directors. b) Render timely written reports to
the General Assembly of Shareholder's, the Board of Directors, the President,
as the case may be, of any irregularities occurring in the corporation's
operations and in the course of business. c) Monitor the regular and adequate
accounting of the corporation and the minutes at the General Assembly of
<PAGE>
Shareholders and at the Board of Director's meetings and monitor the
preservation of the corporation's correspondence and invoices, providing the
necessary instructions for that purpose. d) Assiduously audit the assets of
the corporation and attempt that timely actions are taken for the preservation
and security of such assets as well as any assets its custody or under some
other title. e) Issue instructions, carry out inspections and request all
necessary reports to monitor corporate securities. f) Authorize the balance
sheets with his signature, with his corresponding opinion or report. g)
Convene the General Assembly of Shareholder's or the Board of Directors to
special meetings whenever deemed necessary. h) Discharge all other duties
indicated by law or by the bylaws and those which are consistent with the
above, are charged to him by the General Assembly of Shareholders.
PARAGRAPH: The opinion and report from the Fiscal Auditor on the general
balance sheets must indicate, at least, that which is provided for in article
208 of the Commercial Code and the report that must be submitted to the
General Assembly of Shareholders, shall adhere, at least, to the provisions of
Article 209 of the same Code.
ARTICLE 52nd. PROHIBITIONS AND DISQUALIFICATIONS. The Fiscal Auditor and his
alternate shall be public accountants and shall be subject to the
restrictions, prohibitions, incompatibilities and responsibilities provided by
law. Consequently, the Fiscal Auditor and his alternate may not be
shareholders of the corporation nor employees occupying any position in the
corporation, nor be related within the fourth degree by blood or second by
marriage or first civil with the corporation's President or with any member of
the Board of Directors. The Fiscal Auditor is also prohibited from entering,
with the corporation directly or through a third party, into any kind of
agreements, unless the agreements are those executed by legal mandate or to
render public services charged to the corporation.
ARTICLE 53rd. RESPONSIBILITIES. The Fiscal Auditor shall be liable for
damages he/she causes to the corporation by negligence or serious
mismanagement in the discharge of his/her duties.
ARTICLE 54th. RIGHTS. The Fiscal Auditor shall have the right to intervene
in the deliberations of the General Assembly and shall attend the meetings of
the Board of Directors when called to do so, but without a right to vote. He
shall also have the right to inspect at any time the accounting books, the
minute book, correspondence, invoices and all other corporation papers.
PARAGRAPH. The Fiscal Auditor shall maintain total secrecy on the actions or
facts that come to his knowledge while carrying out his duties and may only
report or communicate them in the manner expressly provided for by law.
CHAPTER V
GENERAL SECRETARY
ARTICLE 55th. APPOINTMENT. The corporation shall have an officer called
Secretary General, who will also be the Secretary of the General Assembly of
Shareholders, of the Board of Directors, and of the President. Appointment of
the General Secretary shall be made by the corporation's President subject to
prior approval by the Board of Directors as provided for by section 10 of
Article 49th of these bylaws.
<PAGE>
ARTICLE 56th. DUTIES. The duties of the Secretary are: A) To maintain the
minute books of the General Assembly and the Board of Directors. C)
Discharge all other duties as assigned by the General Assembly of
Shareholders, the Board of Directors and the President.
CHAPTER VI
BALANCE SHEETS, PROFITS AND DIVIDENDS
ARTICLE 57th. BALANCE SHEETS. Annually, on the thirty-first (31) of
December, accounts shall be closed to carry out the inventory and the general
balance sheet which, along with the reports indicated by the regulations,
shall be sent to the Board of Directors and to the General Assembly.
PARAGRAPH: The corporation shall also prepare monthly test balances which
shall be taken for the review of the Board of Directors.
ARTICLE 58th. EXTRAORDINARY BALANCES. The Board of Directors may request
that extraordinary balances be prepared whenever it deems it necessary.
ARTICLE 59th. BALANCE SHEET APPROVAL. The balance sheet shall be presented
for approval by the General Assembly of Shareholders, by the Board of
Directors and by the corporation's President together with the rest of the
documents set forth in Article 446 of the Commercial Code.
ARTICLE 60th. PROFITS. Once the inventory and the general balance are
approved by the Assembly, it shall proceed to approve the distribution of
profits, if the General Assembly of Shareholders should decide to so proceed.
ARTICLE 61st. DIVIDENDS NOT CLAIMED ON TIME. The corporation shall not pay
interest on dividends that are not claimed on a timely basis, which shall
remain on deposit in the corporation's accounts available upon the request of
its owners.
CHAPTER VII
DISSOLUTION AND LIQUIDATION
ARTICLE 62nd. CAUSES FOR DISSOLUTION. The corporation shall be dissolved for
the causes provided for in Article 457, numbers 1 and 2 of the Commercial Code
or in the event that all subscribed shares become the property of a single
shareholder.
PARAGRAPH: When the nature of the dissolution event allows it, shareholders
may avoid dissolution of the corporation by adopting the necessary
modifications and following the rules prescribed for the amendment of the
contract, provided that the agreement is formalized within six (6) months
after the occurrence of the dissolution event, all in accordance with Articles
220 and 459 of the Commercial Code.
ARTICLE 63rd. LIQUIDATION. Once the corporation is dissolved, it shall
proceed immediately to liquidation which shall adhere at each stage, to the
provisions of articles 225 to 250 of the Commercial Code.
<PAGE>
CHAPTER VIII
ARBITRATION CLAUSE
ARTICLE 64th. ARBITRATION. Any controversy or difference occurring between
associates or with the corporation as related to this contract and its
execution or liquidation, shall be resolved by an Arbitration tribunal. The
Tribunal shall be composed of three (3) arbitrators who shall be appointed by
the Chamber of Commerce of Santafe de Bogota, through a drawing among the
arbitrators in the lists maintained by the Chamber, unless the parties appoint
such arbitrators by mutual agreement. The Tribunal thus constituted shall be
subject to the provisions of Decree 2279/89 and all other legal provisions
that amend it or add to it.
CHAPTER IX
OTHER PROVISIONS
ARTICLE 65th. The appraisal of the assets that have been contributed in kind
by Corelca was duly approved by the shareholders in the preliminary Assembly
carried out on the third (3rd) day of August, 1994 (Minute Number 1) whose
copy containing the breakdown and value of the assets is attached for purposes
of the official record.
TEMPORARY ARTICLE. If on December Twentieth (20th), 1994, the corporation has
not legalized the contracts for the financing of the project, under similar
terms to those presented by the Series B Shareholders in their offer to
Corelca, the corporation shall be declared dissolved and shall enter into a
period of liquidation, unless the shareholders in a meeting of the General
Assembly and with the favorable vote of 70% of subscribed shares decide
otherwise. For purposes of liquidation, the designated Liquidator shall take
into account the following rules to perform his work: a) The assets that
Corelca has contributed in kind as payment shall be returned to Corelca as a
single and total payment of its participation in the liquidation; b) the
remainder, once the external liabilities of the corporation have been paid,
shall be distributed exclusively among the Series B shareholders, in
proportion to their contributions, as a single and total payment of their
participation in the liquidation. The above mentioned rules shall not be
applicable and, therefore, the applicable rules shall be those indicated in
Article 63 of these bylaws, if the impossibility of legalizing the contracts
with the financial entities is due to the occurrence of any of the following:
a) Corelca does not obtain the guarantee required to execute the project in
terms that are acceptable to the financial entities; b) the dissolution is
caused by an order from a valid authority.
Once this Deed was read, it was signed by all those present and in attendance,
following entry in the corresponding Register. It causes Notary Fees in the
amount of $17,947.00. Notary Fund $1,000.00. Superintendency of Notary and
Registry $1,000.00, Decree 1677 of 1994. VAT $1,019,115.00. It was drafted
in Notary Pages Numbers AB37262722, AB37262724, AB37262725, AB37262726,
AB37262728, AB37262729, AB37262730, AB37262731, AB37262732, AB37262733,
AB37262734, AB37262735, AB37262736, AB37262737, AB37262738, AB37262739,
AB37262740, AB37262743, AB37262744, AB37262745, AB37262746.
Base of the liquidation $3,268,000,000.00 AMENDED: "October". VALID.
<PAGE>
TAKEN FROM PUBLIC DEED NUMBER 9,994 DATED OCTOBER 14, 1994. ORIGINATING FROM
NOTARIAL PAGE NUMBER AB3670-3245.
/s/ Edgardo Sojo Gonalez
EDGARDO SOJO GONZALEZ
/s/ Vytautas Didziulis A.
VYTAUTAS DIDZIULIS A.
/s/ Vytis Jurgis Didziulis Garigaulinas
VYTIS JURGIS DIDZIULIS GRIGAULINAS
/s/ Algis Didziulis Antanaitus
ALGIS DIDZIULIS ANTANAITUS
/s/ Luis Carlos Neira Mejia
LUIS CARLOS NEIRA MEJIA
NOTARIZING SIGNATURES.
/s/ Jorge Educardo Lock Londono
JORGE EDUCARDO LOCK LONDONO.
/s/ Illegible Signature
NOTARY IN CHARGE
<PAGE>
NOTARY OFFICE OF SOLEDAD
This page corresponds to the last page of the FIFTH Copy of the Public Deed of
Record number 9994, dated October 14, 1994, issued at the Single Notary Office
of the Soledad Circle, and is true and FIFTH copy, taken from its original,
which I issue in 117 pages duly signed and valid to the CONCERNED PARTY.
Soledad, October 14th Nineteen Hundred and Ninety-Four (1994).
NOTARY OFFICE OF SOLEDAD. There is an illegible signature and below it,
typewritten, it reads: NOTARY IN CHARGE. There is a stamp that reads: SINGLE
NOTARY OFFICE OF THE SOLEDAD CIRCLE. Jose M. Herrera Iranzo. PUBLIC NOTARY.
<PAGE>
Exhibit B-85
CERTIFICATE OF INCORPORATION
OF
BARRANQUILLA LEASE HOLDING, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter
called the "corporation") is Barranquilla Lease Holding, 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
Michael S. Shenberg c/o Berlack, Israels & Liberman LLP
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 7th day of August, 1995.
Michael S. Shenberg
Sole Incorporator<PAGE>
Exhibit B-86
CERTIFICATE OF INCORPORATION
I hereby in accordance with the provisions of section 14 of the
Companies Act, 1981, issue this Certificate of Incorporation and
do certify that on the 18th day of August 1995
LOS AMIGOS LEASING COMPANY LTD.
was registered by me in the Register maintained by me under the
provisions of the said section and that the status of the said
company is that of an exempted company
Given under my hand this 18th day of August 1995.
for Registrar of Companies<PAGE>
Exhibit B-87
CERTIFICATE OF INCORPORATION
OF
INTERNATIONAL POWER ADVISORS, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is International Power Advisors, 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
Michael S. Shenberg c/o Berlack, Israels & Liberman LLP
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 nay of its stock.
IN WITNESS WHEREOF, I have hereunto set my hand this 14th
day of August, 1995.
Michael S. Shenberg
Sole Incorporator<PAGE>
Exhibit B-88
CERTIFICATE OF INCORPORATION
OF
COLOMBIAN INSTALLATIONS, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is Colombian Installations, 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
Kelly A. Tomblin c/o EI Power, Inc.
One Upper Pond Road
Parsippany, NJ 07054
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 8th day
of September, 1995.
Kelly A. Tomblin
Sole Incorporator<PAGE>
Exhibit B-89
CERTIFICATE OF INCORPORATION
OF
EI ENERGY, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is EI Energy, 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
Michael S. Shenberg c/o Berlack, Israels & Liberman LLP
120 West 45th Street
New York, New York 10036
SIXTH: 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.
SEVENTH: The board of directors of the corporation is
expressly authorized to adopt, amend or repeal by-laws of the
corporation.<PAGE>
EIGHTH: Elections of directors need not be by written
ballot except and to the extent provided in the by-laws of the
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th
day of October, 1995.
Michael S. Shenberg
Sole Incorporator<PAGE>
Exhibit B-90
CERTIFICATE OF INCORPORATION
OF
VICTORIA ELECTRIC, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is Victoria Electric, 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
Michael S. Shenberg c/o Berlack, Israels & Liberman LLP
120 West 45th Street
New York, New York 10036
SIXTH: 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.
SEVENTH: The board of directors of the corporation is
expressly authorized to adopt, amend or repeal by-laws of the
corporation.<PAGE>
EIGHTH: Elections of directors need not be by written
ballot except and to the extent provided in the by-laws of the
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this 18th
day of October, 1995.
Michael S. Shenberg
Sole Incorporator<PAGE>
Exhibit B-91
CERTIFICATE OF INCORPORATION
OF
EI SERVICES, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is EI Services, 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
Michael S. Shenberg c/o Berlack, Israels & Liberman LLP
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 precribed 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 receivewd
no payment for any of its stock.
IN WITNESS WHEREOF, I have hereunto set my hand this 7th day
of October, 1993.
Michael S. Shenberg
Sole Incorporator<PAGE>
Exhibit B-92
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
EI SERVICES, INC.
EI Services, Inc., a Delaware corporation (the a
"Corporation"), hereby certifies as follows:
FIRST: The Corporation has not received any payment for any
of its stock, and this amendment has been duly adopted in
accordance with the provisions of Section 241 of the General
Corporation Law of the State of Delaware.
SECOND: The following is added as a new Article Tenth of
the Corporation's certificate of incorporation:
"TENTH: The board of directors of the
corporation is expressly authorized to adopt,
amend or repeal by-laws of the corporation."
IN WITNESS WHEREOF, EI Services, Inc. has caused this
certificate to be signed by its sole incorporator, Michael S.
Shenberg, on this 7th day of August, 1995.
EI SERVICES, INC.
By:
Michael S. Shenberg
Sole Incorporator<PAGE>
Exhibit B-123
AUSTIN COGENERATION CORPORATION
BY-LAWS
Offices
1. AUSTIN COGENERATION CORPORATION, (the "Corporation")
shall have offices at such 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 on such
date and time as shall be determined by the Board of Directors.
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 <PAGE>
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. 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. 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>
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:<PAGE>
(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 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, and a
Secretary, and may include a Chairman, Comptroller, 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<PAGE>
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 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
Corporation 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
Secretaries 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
Corporation, 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.<PAGE>
(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
31. (a) If and when elected by the Board of Directors,
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.<PAGE>
(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
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<PAGE>
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
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 <PAGE>
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 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.<PAGE>
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
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.<PAGE>
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.
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. (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.<PAGE>
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
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<PAGE>
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.
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-124
GUARACACHI AMERCIA, INC.
BY-LAWS
Offices
1. The Corporation shall have offices at such 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 on such
date and time as shall be determined by the Board of Directors.
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:<PAGE>
(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 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<PAGE>
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.
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.<PAGE>
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
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, and a
Secretary, and may include a Chairman, Comptroller, 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 <PAGE>
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.
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:<PAGE>
(i) he shall have supervision, direction and
control of the conduct of the business of the Cor-
poration, 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;
(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;<PAGE>
The President
(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.
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.
(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:<PAGE>
(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 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;
(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.<PAGE>
(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 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
28. (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.<PAGE>
(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 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.<PAGE>
(e) He shall render an account of all his transac-
tions 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
31. (a) If and when elected by the Board of Directors,
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.<PAGE>
(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 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.<PAGE>
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
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. <PAGE>
(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 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.<PAGE>
(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
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.<PAGE>
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.
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 <PAGE>
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 (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 personsv. 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
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.<PAGE>
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.
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.<PAGE>
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-125
EI BARRANQUILLA, INC.
BY-LAWS
Adopted December 29, 1995
Offices
1. The Corporation shall have offices at such 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 on such
date and time as shall be determined by the Board of Directors.
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 <PAGE>
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. 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
contract or transaction by a vote sufficient for such purposes
without counting the vote of the interested director or
directors; or <PAGE>
(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.
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 <PAGE>
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
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.<PAGE>
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, and a
Secretary, and may include a Chairman, Comptroller, 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.
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.<PAGE>
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
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; <PAGE>
(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.
(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;<PAGE>
(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;
(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; <PAGE>
(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.
(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.<PAGE>
(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
Corporation 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 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.<PAGE>
(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
Corporation, 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
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.<PAGE>
(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) If and when elected by the Board of Directors,
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.
(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.<PAGE>
(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
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.<PAGE>
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
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 <PAGE>
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
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 <PAGE>
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. (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.
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 <PAGE>
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.
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 <PAGE>
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.
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-126
BARRANQUILLA LEASE HOLDING, INC.
BY-LAWS
Adopted December 29, 1995
Offices
1. The Corporation shall have offices at such 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 on such
date and time as shall be determined by the Board of Directors.
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<PAGE>
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. 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<PAGE>
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
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 <PAGE>
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 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 <PAGE>
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.
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.<PAGE>
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
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, and a
Secretary, and may include a Chairman, Comptroller, 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 <PAGE>
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.
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:<PAGE>
(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 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;<PAGE>
(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.
(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:<PAGE>
(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 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.<PAGE>
(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 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.<PAGE>
(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 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.<PAGE>
(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
31. (a) If and when elected by the Board of Directors,
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.<PAGE>
(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 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.<PAGE>
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
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. <PAGE>
(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 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 <PAGE>
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
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 <PAGE>
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.
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.<PAGE>
Checks, Notes, Bonds and Other Instruments
43. (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.
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
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.<PAGE>
Fiscal Year
46. The fiscal year shall begin the first day of January
in each year.
Dividends
47. (a) individends 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.
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.<PAGE>
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-127
B Y - L A W S
of
LOS AMIGOS LEASING COMPANY LTD.
I HEREBY CERTIFY that the within-written
By-Laws are a true copy of the By-Laws of
LOS AMIGOS LEASING COMPANY LTD.
as subscribed by the subscribers to the
Memorandum of Association and approved at the
Statutory Meeting of the above Company on the
18th day of August 1995.
Director
Prepared by
Messrs. Appleby, Spurling & Kempe
Cedar House
41 Cedar Avenue
Hamilton, Bermuda<PAGE>
INDEX
By-Law Subject Page
1 Interpretation 1-2
2 Registered Office 2
3,4 Share Rights 2
5,6 Modification of Rights 2-3
7-9 Shares 3
10-12 Certificates 3,4
13-15 Lien 4,5
16-21 Calls on Shares 5
22-28 Forfeiture of Shares 5-7
29 Register of Shareholders 7
30 Register of Directors and Officers 7
31-34 Transfer of Shares 7,8
35-38 Transmission of Shares 8,9
39-41 Increase of Capital 9
42,43 Alteration of Capital 9,10
44,45 Reduction of Capital 10,11
46 General Meetings and Written 11
Resolutions
47,48 Notice of General Meetings 12
49-55 Proceedings at General Meetings 12,13
56-67 Voting 14,15
68-73 Proxies and Corporate Representatives 16,17
74-76 Appointment and Removal of Directors 17
77 Resignation and Disqualification of
Directors 17,18
78-80 Alternate Directors 18,19
81 Directors' Fees and Additional 19
Remuneration and Expenses
82 Directors' Interests 19,20
83-87 Powers and Duties of the Board 20,21
88-90 Delegation of the Board s Powers 21,22
91-99 Proceedings of the Board 22,23
100 Officers 23,24
101 Minutes 24
103 Secretary 24
104 The Seal 24,25
105-111 Dividends and Other Payments 25,26
112 Reserves 26
113,114 Capitalization of Profits 26,27
115 Record Dates 27
116-118 Accounting Records 27,28
119 Audit 28
120-122 Service of Notices and Other Documents 28,29
123 Winding Up 29
124-126 Indemnity 29,30
127 Alteration of By-Laws 30<PAGE>
B Y E - L A W S
of
LOS AMIGOS LEASING COMPANY LTD.
INTERPRETATION
1. In these By-Laws unless the context otherwise requires -
"Bermuda" means the Islands of Bermuda;
"Board" means the Board of Directors of the Company or the
Directors present at a meeting of Directors at which there is a
quorum;
"the Companies Acts" means every Bermuda statute from time
to time in force concerning companies insofar as the same applies
to the Company;
"Company" means the company incorporated in Bermuda under
the name of on the 16th day of August 1995;
"paid up" means paid up or credited as paid up;
"Register" means the Register of Shareholders of the
Company;
"Registered Office" means the registered office for the time
being of the Company;
"Resolution" means a resolution of the Shareholders or,
where required, of a separate class or separate classes of
Shareholders, adopted either in general meeting or by written
resolution, in accordance with the provisions of these By-Laws;
"Seal" means the common seal of the Company and includes any
duplicate thereof;
"Secretary" includes a temporary or assistant Secretary and
any person appointed by the Board to perform any of the duties of
the Secretary;
"Shareholder" means a shareholder or member of the Company;
"these By-Laws" means these By-Laws in their present form or
as from time to time amended;
for the purposes of these By-Laws a corporation shall be
deemed to be present in person if its representative duly
authorised pursuant to the Companies Acts is present;
words importing only the singular number include the plural
number and vice versa;
words importing only the masculine gender include the
feminine and neuter genders respectively;
1<PAGE>
words importing persons include companies or associations or
bodies of persons, whether corporate or un-incorporate;
reference to writing shall include typewriting, printing,
lithography, photography and other modes of representing or
reproducing words in a legible and non-transitory form;
any words or expressions defined in the Companies Acts in
force at the date when these By-Laws or any part thereof are
adopted shall bear the same meaning in these By-Laws or such part
(as the case may be).
REGISTERED OFFICE
2. The Registered Office shall be at such place in Bermuda as
the Board shall from time to time appoint.
SHARE RIGHTS
3. Subject to any special rights conferred on the holders of
any share or class of shares, any share in the Company may be
issued with or have attached thereto such preferred, deferred,
qualified or other special rights or such restrictions, whether
in regard to dividend, voting, return of capital or otherwise, as
the Company may by Resolution determine or, if there has not been
any such determination or so far as the same shall not make
specific provision, as the Board may determine.
4. Subject to the Companies Acts, any preference shares may,
with the sanction of a Resolution, be issued on terms:
(a) that they are to be redeemed on the happening of a
specified event or on a given date; and/or,
(b) that they are liable to be redeemed at the option of
the Company; and/or,
(c) if authorised by the memorandum/Incorporating Act of
the Company, that they are liable to be redeemed at the
option of the holder.
The terms and manner of redemption shall be provided for by
way of amendment of these By-Laws.
MODIFICATION OF RIGHTS
5. Subject to the Companies Acts, all or any of the special
rights for the time being attached to any class of shares for the
time being issued may from time to time (whether or not the
Company is being wound up) be altered or abrogated with the
consent in writing of the holders of not less than seventy five
percent of the issued shares of that class or with the sanction
of a resolution passed at a separate general meeting of the
holders of such shares voting in person or by proxy. To any such
2<PAGE>
separate general meeting, all the provisions of these By-Laws as
to general meetings of the Company shall mutatis mutandis apply,
but so that the necessary quorum shall be two or more persons
holding or representing by proxy any of the shares of the
relevant class, that every holder of shares of the relevant class
shall be entitled on a poll to one vote for every such share held
by him and that any holder of shares of the relevant class
present in person or by proxy may demand a poll; provided,
however, that if the Company or a class of Shareholders shall
have only one Shareholder present in person or by proxy, one
Shareholder shall constitute the necessary quorum.
6. The special rights conferred upon the holders of any shares
or class of shares shall not, unless otherwise expressly provided
in the rights attaching to or the terms of issue of such shares,
be deemed to be altered by the creation or issue of further
shares ranking pari passu therewith.
SHARES
7. Subject to the provisions of these By-Laws, the unissued
shares of the Company (whether forming part of the original
capital or any increased capital) shall be at the disposal of the
Board, which may offer, allot, grant options over or otherwise
dispose of them to such persons, at such times and for such
consideration and upon such terms and conditions as the Board may
determine.
8. The Board may in connection with the issue of any shares
exercise all powers of paying commission and brokerage conferred
or permitted by law.
9. Except as ordered by a court of competent jurisdiction or as
required by law, no person shall be recognised by the Company as
holding any share upon trust and the Company shall not be bound
by or required in any way to recognise (even when having notice
thereof) any equitable, contingent, future or partial interest in
any share or any interest in any fractional part of a share or
(except only as otherwise provided in these By-Laws or by law)
any other right in respect of any share except an absolute right
to the entirety thereof in the registered holder.
CERTIFICATES
10. The preparation, issue and delivery of certificates shall be
governed by the Companies Acts. In the case of a share held
jointly by several persons, delivery of a certificate to one of
several joint holders shall be sufficient delivery to all.
11. If a share certificate is defaced, lost or destroyed it may
be replaced without fee but on such terms (if any) as to evidence
and indemnity and to payment of the costs and out of pocket
expenses of the Company in investigating such evidence and
3<PAGE>
preparing such indemnity as the Board may think fit and, in case
of defacement, on delivery of the old certificate to the Company.
12. All certificates for share or loan capital or other
securities of the Company (other than letters of allotment, scrip
certificates and other like documents) shall, except to the
extent that the terms and conditions for the time being relating
thereto otherwise provide, be issued under the Seal. The Board
may by resolution determine, either generally or in any
particular case, that any signatures on any such certificates
need not be autographic but may be affixed to such certificates
by some mechanical means or may be printed thereon or that such
certificates need not be signed by any persons.
LIEN
13. The Company shall have a first and paramount lien on every
share (not being a fully paid share) for all moneys, whether
presently payable or not, called or payable, at a date fixed by
or in accordance with the terms of issue of such share in respect
of such share, and the Company shall also have a first and
paramount lien on every share (other than a fully paid share)
standing registered in the name of a Shareholder, whether singly
or jointly with any other person, for all the debts and
liabilities of such Shareholder or his estate to the Company,
whether the same shall have been incurred before or after notice
to the Company of any interest of any person other than such
Shareholder, and whether the time for the payment or discharge of
the same shall have actually arrived or not, and notwithstanding
that the same are joint debts or liabilities of such Shareholder
or his estate and any other person, whether a Shareholder or not.
The Company's lien on a share shall extend to all dividends
payable thereon. The Board may at any time, either generally or
in any particular case, waive any lien that has arisen or declare
any share to be wholly or in part exempt from the provisions of
this By-Law.
14. The Company may sell, in such manner as the Board may think
fit, any share 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 the sum
presently payable and giving notice of the intention to sell in
default of such payment, has been served on the holder for the
time being of the share.
15. The net proceeds of sale by the Company of any shares on
which it has a lien shall be applied in or towards payment or
discharge of the debt or liability in respect of which the lien
exists so far as the same is presently payable, and any residue
shall (subject to a like lien for debts or liabilities not
presently payable as existed upon the share prior to the sale) be
paid to the holder of the share immediately before such sale.
For giving effect to any such sale the Board may authorise some
4<PAGE>
person to transfer the share sold to the purchaser thereof. The
purchaser shall be registered as the holder of the share and he
shall not be bound to see to the application of the purchase
money, nor shall his title to the share be affected by any
irregularity or invalidity in the proceedings relating to the
sale.
CALLS ON SHARES
16. The Board may from time to time make calls upon the
Shareholders in respect of any moneys unpaid on their shares
(whether on account of the par value of the shares or by way of
premium) and not by the terms of issue thereof made payable at a
date fixed by or in accordance with such terms of issue, and each
Shareholder shall (subject to the Company serving upon him at
least fourteen days notice specifying the time or times and place
of payment) pay to the Company at the time or times and place so
specified the amount called on his shares. A call may be revoked
or postponed as the Board may determine.
17. A call may be made payable by instalments and shall be
deemed to have been made at the time when the resolution of the
Board authorizing the call was passed.
18. The joint holders of a share shall be jointly and severally
liable to pay all calls in respect thereof.
19. If a sum called in respect of the share shall not be paid
before or on the day appointed for payment thereof the person
from whom the sum is due shall pay interest on the sum from the
day appointed for the payment thereof to the time of actual
payment at such rate as the Board may determine, but the Board
shall be at liberty to waive payment of such interest wholly or
in part.
20. Any sum which, by the terms of issue of a share, becomes
payable on allotment or at any date fixed by or in accordance
with such terms of issue, whether on account of the nominal
amount of the share or by way of premium, shall for all the
purposes of these By-Laws be deemed to be a call duly made,
notified and payable on the date on which, by the terms of issue,
the same becomes payable and, in case of non-payment, all the
relevant provisions of these By-Laws as to payment of interest,
forfeiture or otherwise shall apply as if such sum had become
payable by virtue of a call duly made and notified.
21. The Board may on the issue of shares differentiate between
the allottees or holders as to the amount of calls to be paid and
the times of payment.
FORFEITURE OF SHARES
22. If a Shareholder fails to pay any call or instalment of a
call on the day appointed for payment thereof, the Board may at
5<PAGE>
any time thereafter during such time as any part of such call or
instalment remains unpaid serve a notice on him requiring payment
of so much of the call or instalment as is unpaid, together with
any interest which may have accrued.
23. The notice shall name a further day (not being less than 14
days from the date of the notice) on or before which, and the
place where, the payment required by the notice is to be made and
shall state that, in the event of non-payment on or before the
day and at the place appointed, the shares in respect of which
such call is made or instalment is payable will be liable to be
forfeited. The Board may accept the surrender of any share
liable to be forfeited hereunder and, in such case, references in
these By-Laws to forfeiture shall include surrender.
24. If the requirements of any such notice as aforesaid are not
complied with, any share in respect of which such notice has been
given may at any time thereafter, before payment of all calls or
instalments and interest due in respect thereof has been made, be
forfeited by a resolution of the Board to that effect. Such
forfeiture shall include all dividends declared in respect of the
forfeited shares and not actually paid before the forfeiture.
25. When any share has been forfeited, notice of the forfeiture
shall be served upon the person who was before forfeiture the
holder of the share; but no forfeiture shall be in any manner
invalidated by any omission or neglect to give such notice as
aforesaid.
26. A forfeited share shall be deemed to be the property of the
Company and may be sold, re-offered or otherwise disposed of
either to the person who was, before forfeiture, the holder
thereof or entitled thereto or to any other person upon such
terms and in such manner as the Board shall think fit, and at any
time before a sale, re-allotment or disposition the forfeiture
may be cancelled on such terms as the Board may think fit.
27. A person whose shares have been forfeited shall thereupon
cease to be a Shareholder in respect of the forfeited shares but
shall, notwithstanding the forfeiture, remain liable to pay to
the Company all moneys which at the date of forfeiture were
presently payable by him to the Company in respect of the shares
with interest thereon at such rate as the Board may determine
from the date of forfeiture until payment, and the Company may
enforce payment without being under any obligation to make any
allowance for the value of the shares forfeited.
28. An affidavit in writing that the deponent is a Director or
the Secretary and that a share has been duly forfeited on the
date stated in the affidavit 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 the sale, re-allotment or
6<PAGE>
disposition thereof and the Board may authorise some person to
transfer the share to the person to whom the same is sold, re-
allotted 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 relating to the forfeiture, sale, re-allotment or
disposal of the share.
REGISTER OF SHAREHOLDERS
29. The Secretary shall establish and maintain the Register of
Shareholders at the Registered Office in the manner prescribed by
the Companies Acts. Unless the Board otherwise determines, the
Register of Shareholders shall be open to inspection in the
manner prescribed by the Companies Acts between 10.00 a.m. and
12.00 noon on every working day. Unless the Board so determines,
no Shareholder or intending Shareholder shall be entitled to have
entered in the Register any indication of any trust or any
equitable, contingent, future or partial interest in any share or
any interest in any fractional part of a share and if any such
entry exists or is permitted by the Board it shall not be deemed
to abrogate any of the provisions of By-Law 9.
REGISTER OF DIRECTORS AND OFFICERS
30. The Secretary shall establish and maintain a register of the
Directors and Officers of the Company as required by the
Companies Acts. The register of Directors and Officers shall be
open to inspection in the manner prescribed by the Companies Acts
between 10:00 a.m. and 12:00 noon on every working day.
TRANSFER OF SHARES
31. Subject to the Companies Acts and to such of the
restrictions contained in these By-Laws as may be applicable, any
Shareholder may transfer all or any of his shares by an
instrument of transfer in the usual common form or in any other
form which the Board may approve.
32. The instrument of transfer of a share shall be signed by or
on behalf of the transferor and where any share is not fully-paid
the transferee, and the transferor shall be deemed to remain the
holder of the share until the name of the transferee is entered
in the Register in respect thereof. All instruments of transfer
when registered may be retained by the Company. The Board may, in
its absolute discretion and without assigning any reason
therefor, decline to register any transfer of any share which is
not a fully-paid share.
The Board may also decline to register any transfer unless:-
(a) the instrument of transfer is duly stamped and lodged
with the Company, accompanied by the certificate for
7<PAGE>
the shares to which it relates, and such other evidence
as the Board may reasonably require to show the right
of the transferor to make the transfer,
(b) the instrument of transfer is in respect of only one
class of share,
(c) where applicable, the permission of the Bermuda
Monetary Authority with respect thereto has been
obtained.
Subject to any directions of the Board from time to time in
force, the Secretary may exercise the powers and discretions of
the Board under this By-Law and By-Laws 31 and 33.
33. If the Board declines to register a transfer it shall,
within three months after the date on which the instrument of
transfer was lodged, send to the transferee notice of such
refusal.
34. No fee shall be charged by the Company for registering any
transfer, probate, letters of administration, certificate of
death or marriage, power of attorney, distringas or stop notice,
order of court or other instrument relating to or affecting the
title to any share, or otherwise making an entry in the Register
relating to any share.
TRANSMISSION OF SHARES
35. In the case of the death of a Shareholder, the survivor or
survivors, where the deceased was a joint holder, and the estate
representative, where he was sole holder, shall be the only
person recognised by the Company as having any title to his
shares; but nothing herein contained shall release the estate of
a deceased holder (whether the sole or joint) from any liability
in respect of any share held by him solely or jointly with other
persons. For the purpose of this By-Law, estate representative
means the person to whom probate or letters of administration has
or have been granted in Bermuda or, failing any such person, such
other person as the Board may in its absolute discretion
determine to be the person recognised by the Company for the
purpose of this By-Law.
36. Any person becoming entitled to a share in consequence of
the death of a Shareholder or otherwise by operation of
applicable law may, subject as hereafter provided and upon such
evidence being produced as may from time to time be required by
the Board as to his entitlement, either be registered himself as
the holder of the share or elect to have some person nominated by
him registered as the transferee thereof. If the person so
becoming entitled elects to be registered himself, he shall
deliver or send to the Company a notice in writing signed by him
stating that he so elects. If he shall elect to have his nominee
8<PAGE>
registered, he shall signify his election by signing an
instrument of transfer of such share in favour of his nominee.
All the limitations, restrictions and provisions of these By-Laws
relating to the right to transfer and the registration of
transfer of shares shall be applicable to any such notice or
instrument of transfer as aforesaid as if the death of the
Shareholder or other event giving rise to the transmission had
not occurred and the notice or instrument of transfer was an
instrument of transfer signed by such Shareholder.
37. A person becoming entitled to a share in consequence of the
death of a Shareholder or otherwise by operation of applicable
law shall (upon such evidence being produced as may from time to
time be required by the Board as to his entitlement) be entitled
to receive and may give a discharge for any dividends or other
moneys payable in respect of the share, but he shall not be
entitled in respect of the share to receive notices of or to
attend or vote at general meetings of the Company or, save as
aforesaid, to exercise in respect of the share any of the rights
or privileges of a Shareholder until he shall have become
registered as the holder thereof. The Board may at any time give
notice requiring such person to elect either to be registered
himself or to transfer the share and if the notice is not
complied with within sixty days the Board may thereafter withhold
payment of all dividends and other moneys payable in respect of
the shares until the requirements of the notice have been
complied with.
38. Subject to any directions of the Board from time to time in
force, the Secretary may exercise the powers and discretions of
the Board under By-Laws 35, 36 and 37.
INCREASE OF CAPITAL
39. The Company may from time to time increase its capital by
such sum to be divided into shares of such par value as the
Company by Resolution shall prescribe.
40. The Company may, by the Resolution increasing the capital,
direct that the new shares or any of them shall be offered in the
first instance either at par or at a premium or (subject to the
provisions of the Companies Acts) at a discount to all the
holders for the time being of shares of any class or classes in
proportion to the number of such shares held by them respectively
or make any other provision as to the issue of the new shares.
41. The new shares shall be subject to all the provisions of
these By-Laws with reference to lien, the payment of calls,
forfeiture, transfer, transmission and otherwise.
ALTERATION OF CAPITAL
42. The Company may from time to time by Resolution:-
9<PAGE>
(a) divide its shares into several classes and attach
thereto respectively any preferential, deferred,
qualified or special rights, privileges or conditions;
(b) consolidate and divide all or any of its share capital
into shares of larger par value than its existing
shares;
(c) sub-divide its shares or any of them into shares of
smaller par value than is fixed by its memorandum, so,
however, that in the sub-division 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;
(d) make provision for the issue and allotment of shares
which do not carry any voting rights;
(e) 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; and
(f) change the currency denomination of its share capital.
Where any difficulty arises in regard to any division,
consolidation, or sub-division under this By-Law, the Board may
settle the same as it thinks expedient and, in particular, may
arrange for the sale of the shares representing fractions and the
distribution of the net proceeds of sale in due proportion
amongst the Shareholders who would have been entitled to the
fractions, and for this purpose the Board may authorise some
person to transfer the shares representing fractions to the
purchaser thereof, who 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 relating to the sale.
43. Subject to the Companies Acts and to any confirmation or
consent required by law or these By-Laws, the Company may by
Resolution from time to time convert any preference shares into
redeemable preference shares.
REDUCTION OF CAPITAL
44. Subject to the Companies Acts, its memorandum and any
confirmation or consent required by law or these By-Laws, the
Company may from time to time by Resolution authorise the
reduction of its issued share capital or any capital redemption
reserve fund or any share premium or contributed surplus account
in any manner.
10<PAGE>
45. In relation to any such reduction, the Company may by
Resolution determine the terms upon which such reduction is to be
effected including in the case of a reduction of part only of a
class of shares, those shares to be affected.
GENERAL MEETINGS AND WRITTEN RESOLUTIONS
46. (a) The Board shall convene and the Company shall hold
general meetings as Annual General Meetings in
accordance with the requirements of the Companies Acts
at such times and places as the Board shall appoint.
The Board may, whenever it thinks fit, and shall, when
required by the Companies Acts, convene general
meetings other than Annual General Meetings which shall
be called Special General Meetings.
(b) Except in the case of the removal of auditors and
Directors, anything which may be done by resolution of
the Company in general meeting or by resolution of a
meeting of any class of the Shareholders of the Company
may, without a meeting and without any previous notice
being required, be done by resolution in writing,
signed by all of the Shareholders or their proxies, or
in the case of a Shareholder that is a corporation
(whether or not a company within the meaning of the
Companies Acts) on behalf of such Shareholder, being
all of the Shareholders of the Company who at the date
of the resolution in writing would be entitled to
attend a meeting and vote on the resolution. Such
resolution in writing may be signed by, or in the case
of a Shareholder that is a corporation (whether or not
a company within the meaning of the Companies Acts), on
behalf of, all the Shareholders of the Company, or any
class thereof, in as many counterparts as may be
necessary.
(c) For the purposes of this By-Law, the date of the
resolution in writing is the date when the resolution
is signed by, or in the case of a Shareholder that is a
corporation (whether or not a company within the
meaning of the Companies Acts), on behalf of, the last
Shareholder to sign and any reference in any enactment
to the date of passing of a resolution is, in relation
to a resolution in writing made in accordance with this
section, a reference to such date.
(d) A resolution in writing made in accordance with this
By-Law is as valid as if it had been passed by the
Company in general meeting or, if applicable, by a
meeting of the relevant class of Shareholders of the
Company, as the case may be. A resolution in writing
made in accordance with this section shall constitute
minutes for the purposes of the Companies Acts and
these By-Laws.
11<PAGE>
NOTICE OF GENERAL MEETINGS
47. An Annual General Meeting shall be called by not less than
five days notice in writing and a Special General Meeting shall
be called by not less than five days notice in writing. The
notice shall be exclusive of the day on which it is served or
deemed to be served and of the day for which it is given, and
shall specify the place, day and time of the meeting, and, in the
case of a Special General Meeting, the general nature of the
business to be considered. Notice of every general meeting shall
be given in any manner permitted by By-Laws 120 and 121 to all
Shareholders other than such as, under the provisions of these
By-Laws or the terms of issue of the shares they hold, are not
entitled to receive such notice from the Company.
Notwithstanding that a meeting of the Company is called by
shorter notice than that specified in this By-Law, it shall be
deemed to have been duly called if it is so agreed:-
(a) in the case of a meeting called as an Annual General
Meeting, by all the Shareholders entitled to attend and
vote thereat;
(b) in the case of any other meeting, by a majority in
number of the Shareholders having the right to attend
and vote at the meeting, being a majority together
holding not less than 95 percent in nominal value of
the shares giving that right.
48. The accidental omission to give notice of a meeting or (in
cases where instruments of proxy are sent out with the notice)
the accidental omission to send such instrument of proxy to, or
the non-receipt of notice of a meeting or such instrument of
proxy by, any person entitled to receive such notice shall not
invalidate the proceedings at that meeting.
PROCEEDINGS AT GENERAL MEETINGS
49. No business shall be transacted at any general meeting
unless a quorum is present when the meeting proceeds to business,
but the absence of a quorum shall not preclude the appointment,
choice or election of a chairman which shall not be treated as
part of the business of the meeting. Save as otherwise provided
by these By-Laws, at least two Shareholders present in person or
by proxy and entitled to vote shall be a quorum for all purposes;
provided, however, that if the Company shall have only one
Shareholder, one Shareholder present in person or by proxy shall
constitute the necessary quorum.
50. If within five minutes (or such longer time as the chairman
of the meeting may determine to wait) after the time appointed
for the meeting, a quorum is not present, the meeting, if
convened on the requisition of Shareholders, shall be dissolved.
In any other case, it shall stand adjourned to such other day and
12<PAGE>
such other time and place as the chairman of the meeting may
determine and at such adjourned meeting two Shareholders present
in person or by proxy (whatever the number of shares held by
them) shall be a quorum provided that if the Company shall have
only one Shareholder, one Shareholder present in person or by
proxy shall constitute the necessary quorum. The Company shall
give not less than five days notice of any meeting adjourned
through want of a quorum and such notice shall state that the
sole Shareholder or, if more than one, two Shareholders present
in person or by proxy (whatever the number of shares held by
them) shall be a quorum.
51. A meeting of the Shareholders or any class thereof may be
held by means of such telephone, electronic or other
communication facilities as permit all persons participating in
the meeting to communicate with each other simultaneously and
instantaneously and participation in such a meeting shall
constitute presence in person at such meeting.
52. Each Director shall be entitled to attend and speak at any
general meeting of the Company.
53. The Chairman (if any) of the Board or, in his absence, the
President shall preside as chairman at every general meeting. If
there is no such Chairman or President, or if at any meeting
neither the Chairman nor the President is present within five
minutes after the time appointed for holding the meeting, or if
neither of them is willing to act as chairman, the Directors
present shall choose one of their number to act or if one
Director only is present he shall preside as chairman if willing
to act. If no Director is present, or if each of the Directors
present declines to take the chair, the persons present and
entitled to vote on a poll shall elect one of their number to be
chairman.
54. The chairman of the meeting 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 except business which might lawfully have been
transacted at the meeting from which the adjournment took place.
When a meeting is adjourned for three months or more, notice of
the adjourned meeting shall be given as in the case of an
original meeting.
55. Save as expressly provided by these By-Laws, it shall not be
necessary to give any notice of an adjournment or of the business
to be transacted at an adjourned meeting.
13<PAGE>
VOTING
56. Save where a greater majority is required by the Companies
Acts or these By-Laws, any question proposed for consideration at
any general meeting shall be decided on by a simple majority of
votes cast.
57. At any general meeting, a resolution put to the vote of the
meeting shall be decided on a show of hands unless (before or on
the declaration of the result of the show of hands or on the
withdrawal of any other demand for a poll) a poll is demanded
by:-
(a) the chairman of the meeting; or
(b) at least three Shareholders present in person or
represented by proxy; or
(c) any Shareholder or Shareholders present in person or
represented by proxy and holding between them not less
than one tenth of the total voting rights of all the
Shareholders having the right to vote at such meeting;
or
(d) a Shareholder or Shareholders present in person or
represented by proxy holding shares conferring the
right to vote at such meeting, being shares on which an
aggregate sum has been paid up equal to not less than
one tenth of the total sum paid up on all such shares
conferring such right.
Unless a poll is so demanded and the demand is not withdrawn, 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 not carried by a particular majority or lost shall be
final and conclusive, and an entry to that effect in the minute
book of the Company shall be conclusive evidence of the fact
without proof of the number of votes recorded for or against such
resolution.
58. If a poll is duly demanded, the result of the poll shall be
deemed to be the resolution of the meeting at which the poll is
demanded.
59. 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 in such manner and
either forthwith or at such time (being not later than three
months after the date of the demand) and place as the chairman
shall direct. It shall not be necessary (unless the chairman
otherwise directs) for notice to be given of a poll.
14<PAGE>
60. The demand for a poll shall not prevent the continuance of a
meeting for the transaction of any business other than the
question on which the poll has been demanded and it may be
withdrawn at any time before the close of the meeting or the
taking of the poll, whichever is the earlier.
61. On a poll, votes may be cast either personally or by proxy.
62. A person entitled to more than one vote on a poll need not
use all his votes or cast all the votes he uses in the same way.
63. In the case of an equality of votes at a general meeting,
whether on a show of hands or on a poll, the chairman of such
meeting shall not be entitled to a second or casting vote.
64. In the case of joint holders of a share, 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 in respect of
the joint holding.
65. A Shareholder who is a patient for any purpose of any
statute or applicable law relating to mental health or in respect
of whom an order has been made by any Court having jurisdiction
for the protection or management of the affairs of persons
incapable of managing their own affairs may vote, whether on a
show of hands or on a poll, by his receiver, committee, curator
bonis or other person in the nature of a receiver, committee or
curator bonis appointed by such Court and such receiver,
committee, curator bonis or other person may vote on a poll by
proxy, and may otherwise act and be treated as such Shareholder
for the purpose of general meetings.
66. No Shareholder shall, unless the Board otherwise determines,
be entitled to vote at any general meeting unless all calls or
other sums presently payable by him in respect of shares in the
Company have been paid.
67. If (i) any objection shall be raised to the qualification of
any voter or (ii) any votes have been counted which ought not to
have been counted or which might have been rejected or (iii) any
votes are not counted which ought to have been counted, the
objection or error shall not vitiate the decision of the meeting
or adjourned meeting on any resolution unless the same is raised
or pointed out at the meeting or, as the case may be, the
adjourned meeting at which the vote objected to is given or
tendered or at which the error occurs. Any objection or error
shall be referred to the chairman of the meeting and shall only
vitiate the decision of the meeting on any resolution if the
chairman decides that the same may have affected the decision of
the meeting. The decision of the chairman on such matters shall
be final and conclusive.
15<PAGE>
PROXIES AND CORPORATE REPRESENTATIVES
68. The instrument appointing a proxy shall be in writing under
the hand of the appointor or of his attorney authorised by him in
writing or, if the appointor is a corporation, either under its
seal or under the hand of an officer, attorney or other person
authorised to sign the same.
69. Any Shareholder may appoint a standing proxy or (if a
corporation) representative by depositing at the Registered
Office a proxy or (if a corporation) an authorisation and such
proxy or authorisation shall be valid for all general meetings
and adjournments thereof or, resolutions in writing, as the case
may be, until notice of revocation is received at the Registered
Office. Where a standing proxy or authorisation exists, its
operation shall be deemed to have been suspended at any general
meeting or adjournment thereof at which the Shareholder is
present or in respect to which the Shareholder has specially
appointed a proxy or representative. The Board may from time to
time require such evidence as it shall deem necessary as to the
due execution and continuing validity of any such standing proxy
or authorisation and the operation of any such standing proxy or
authorisation shall be deemed to be suspended until such time as
the Board determines that it has received the requested evidence
or other evidence satisfactory to it.
70. Subject to By-Law 69, the instrument appointing a proxy
together with such other evidence as to its due execution as the
Board may from time to time require, shall be delivered at the
Registered Office (or at such place as may be specified in the
notice convening the meeting or in any notice of any adjournment
or, in either case or the case of a written resolution, in any
document sent therewith) prior to the holding of the relevant
meeting or adjourned meeting at which the person named in the
instrument proposes to vote or, in the case of a poll taken
subsequently to the date of a meeting or adjourned meeting,
before the time appointed for the taking of the poll, or, in the
case of a written resolution, prior to the effective date of the
written resolution and in default the instrument of proxy shall
not be treated as valid.
71. Instruments of proxy shall be in any common form or in such
other form as the Board may approve and the Board may, if it
thinks fit, send out with the notice of any meeting or any
written resolution forms of instruments of proxy for use at that
meeting or in connection with that written resolution. The
instrument of proxy shall be deemed to confer authority to demand
or join in demanding a poll and to vote on any amendment of a
written resolution or amendment of a resolution put to the
meeting for which it is given as the proxy thinks fit. The
instrument of proxy shall unless the contrary is stated therein
be valid as well for any adjournment of the meeting as for the
meeting to which it relates.
16<PAGE>
72. A vote given in accordance with the terms of an instrument
of proxy shall be valid notwithstanding the previous death or
insanity of the principal, or revocation of the instrument of
proxy or of the authority under which it was executed, provided
that no intimation in writing of such death, insanity or
revocation shall have been received by the Company at the
Registered Office (or such other place as may be specified for
the delivery of instruments of proxy in the notice convening the
meeting or other documents sent therewith) one hour at least
before the commencement of the meeting or adjourned meeting, or
the taking of the poll, or the day before the effective date of
any written resolution at which the instrument of proxy is used.
73. Subject to the Companies Acts, the Board may at its
discretion waive any of the provisions of these By-Laws related
to proxies or authorisations and, in particular, may accept such
verbal or other assurances as it thinks fit as to the right of
any person to attend and vote on behalf of any Shareholder at
general meetings or to sign written resolutions.
APPOINTMENT AND REMOVAL OF DIRECTORS
74. The number of Directors shall be such number not less than
two as the Company by Resolution may from time to time determine
and, subject to the Companies Acts and these By-Laws, shall serve
until re-elected or their successors are appointed at the next
Annual General Meeting.
75. The Company shall at the Annual General Meeting and may by
Resolution determine the minimum and the maximum number of
Directors and may by Resolution determine that one or more
vacancies in the Board shall be deemed casual vacancies for the
purposes of these By-Laws. Without prejudice to the power of the
Company by Resolution in pursuance of any of the provisions of
these By-Laws to appoint any person to be a Director, the Board,
so long as a quorum of Directors remains in office, shall have
power at any time and from time to time to appoint any individual
to be a Director so as to fill a casual vacancy.
76. The Company may in a Special General Meeting called for that
purpose remove a Director provided notice of any such meeting
shall be served upon the Director concerned not less than 14 days
before the meeting and he shall be entitled to be heard at that
meeting. Any vacancy created by the removal of a Director at a
Special General Meeting may be filled at the Meeting by the
election of another Director in his place or, in the absence of
any such election, by the Board.
RESIGNATION AND DISQUALIFICATION OF DIRECTORS
77. The office of a Director shall be vacated upon the happening
of any of the following events:
17<PAGE>
(a) if he resigns his office by notice in writing delivered
to the Registered Office or tendered at a meeting of
the Board;
(b) if he becomes of unsound mind or a patient for any
purpose of any statute or applicable law relating to
mental health and the Board resolves that his office is
vacated;
(c) if he becomes bankrupt or compounds with his creditors;
(d) if he is prohibited by law from being a Director;
(e) if he ceases to be a Director by virtue of the
Companies Acts or is removed from office pursuant to
these By-Laws.
ALTERNATE DIRECTORS
78. The Company may by Resolution elect any person or persons to
act as Directors in the alternative to any of the Directors or
may authorise the Board to appoint such Alternate Directors and a
Director may appoint and remove his own Alternate Director. Any
appointment or removal of an Alternate Director by a Director
shall be effected by depositing a notice of appointment or
removal with the Secretary at the Registered Office, signed by
such Director, and such appointment or removal shall become
effective on the date of receipt by the Secretary. Any Alternate
Director may be removed by Resolution of the Company and, if
appointed by the Board, may be removed by the Board. Subject as
aforesaid, the office of Alternate Director shall continue until
the next annual election of Directors or, if earlier, the date on
which the relevant Director ceases to be a Director. An
Alternate Director may also be a Director in his own right and
may act as alternate to more than one Director.
79. An Alternate Director shall be entitled to receive notices
of all meetings of Directors, to attend, be counted in the quorum
and vote at any such meeting at which any Director to whom he is
alternate is not personally present, and generally to perform all
the functions of any Director to whom he is alternate in his
absence.
80. Every person acting as an Alternate Director shall (except
as regards powers to appoint an alternate and remuneration) be
subject in all respects to the provisions of these By-Laws
relating to Directors and shall alone be responsible to the
Company for his acts and defaults and shall not be deemed to be
the agent of or for any Director for whom he is alternate. An
Alternate Director may be paid expenses and shall be entitled to
be indemnified by the Company to the same extent mutatis mutandis
as if he were a Director. Every person acting as an Alternate
Director shall have one vote for each Director for whom he acts
18<PAGE>
as alternate (in addition to his own vote if he is also a
Director). The signature of an Alternate Director to any
resolution in writing of the Board or a committee of the Board
shall, unless the terms of his appointment provides to the
contrary, be as effective as the signature of the Director or
Directors to whom he is alternate.
DIRECTORS' FEES AND ADDITIONAL REMUNERATION AND EXPENSES
81. The amount, if any, of Directors' fees shall from time to
time be determined by the Company by Resolution and in the
absence of a determination to the contrary in general meeting,
such fees shall be deemed to accrue from day to day. Each
Director may be paid his reasonable travelling, hotel and
incidental expenses in attending and returning from meetings of
the Board or committees constituted pursuant to these By-Laws or
general meetings and shall be paid all expenses properly and
reasonably incurred by him in the conduct of the Company's
business or in the discharge of his duties as a Director. Any
Director who, by request, goes or resides abroad for any purposes
of the Company or who performs services which in the opinion of
the Board go beyond the ordinary duties of a Director may be paid
such extra remuneration (whether by way of salary, commission,
participation in profits or otherwise) as the Board may
determine, and such extra remuneration shall be in addition to
any remuneration provided for by or pursuant to any other By-Law.
DIRECTORS' INTERESTS
82. (a) A Director may hold any other office or place of profit
with the Company (except that of auditor) in conjunction with his
office of Director for such period and upon such terms as the
Board may determine, and may be paid such extra remuneration
therefor (whether by way of salary, commission, participation in
profits or otherwise) as the Board may determine, and such extra
remuneration shall be in addition to any remuneration provided
for by or pursuant to any other By-Law.
(b) A Director may act by himself or his firm in a
professional capacity for the Company (otherwise than as auditor)
and he or his firm shall be entitled to remuneration for
professional services as if he were not a Director.
(c) Subject to the provisions of the Companies Acts, a
Director may notwithstanding his office be a party to, or
otherwise interested in, any transaction or arrangement with the
Company or in which the Company is otherwise interested; and be a
Director or other officer of, or employed by, or a party to any
transaction or arrangement with, or otherwise interested in, any
body corporate promoted by the Company or in which the Company is
interested. The Board may also cause the voting power conferred
by the shares in any other company held or owned by the Company
to be exercised in such manner in all respects as it thinks fit,
19<PAGE>
including the exercise thereof in favour of any resolution
appointing the Directors or any of them to be directors or
officers of such other company, or voting or providing for the
payment of remuneration to the directors or officers of such
other company.
(d) So long as, where it is necessary, he declares the
nature of his interest at the first opportunity at a meeting of
the Board or by writing to the Directors as required by the
Companies Acts, a Director shall not by reason of his office be
accountable to the Company for any benefit which he derives from
any office or employment to which these By-Laws allow him to be
appointed or from any transaction or arrangement in which these
By-Laws allow him to be interested, and no such transaction or
arrangement shall be liable to be avoided on the ground of any
interest or benefit.
(e) Subject to the Companies Acts and any further
disclosure required thereby, a general notice to the Directors by
a Director or officer declaring that he is a director or officer
or has an interest in a person and is to be regarded as
interested in any transaction or arrangement made with that
person, shall be a sufficient declaration of interest in relation
to any transaction or arrangement so made.
POWERS AND DUTIES OF THE BOARD
83. Subject to the provisions of the Companies Acts and these
By-Laws and to any directions given by the Company by
Resolution, the Board shall manage the business of the Company
and may pay all expenses incurred in promoting and incorporating
the Company and may exercise all the powers of the Company. No
alteration of these By-Laws and no such direction shall
invalidate any prior act of the Board which would have been valid
if that alteration had not been made or that direction had not
been given. The powers given by this By-Law shall not be limited
by any special power given to the Board by these By-Laws and a
meeting of the Board at which a quorum is present shall be
competent to exercise all the powers, authorities and discretions
for the time being vested in or exercisable by the Board.
84. The Board may exercise all the powers of the Company to
borrow money and to mortgage or charge all or any part of the
undertaking, property and assets (present and future) and
uncalled capital of the Company and to issue debentures and other
securities, whether outright or as collateral security for any
debt, liability or obligation of the Company or of any other
persons.
85. All cheques, promissory notes, drafts, bills of exchange and
other instruments, whether negotiable or transferable or not, and
all receipts for money paid to the Company shall be signed,
drawn, accepted, endorsed or otherwise executed, as the case may
20<PAGE>
be, in such manner as the Board shall from time to time by
resolution determine.
86. The Board on behalf of the Company may provide benefits,
whether by the payment of gratuities or pensions or otherwise,
for any person including any Director or former Director who has
held any executive office or employment with the Company or with
any body corporate which is or has been a subsidiary or affiliate
of the Company or a predecessor in the business of the Company or
of any such subsidiary or affiliate, and to any member of his
family or any person who is or was dependent on him, and may
contribute to any fund and pay premiums for the purchase or
provision of any such gratuity, pension or other benefit, or for
the insurance of any such person.
87. The Board may from time to time appoint one or more of its
body to be a managing director, joint managing director or an
assistant managing director or to hold any other employment or
executive office with the Company for such period and upon such
terms as the Board may determine and may revoke or terminate any
such appointments. Any such revocation or termination as
aforesaid shall be without prejudice to any claim for damages
that such Director may have against the Company or the Company
may have against such Director for any breach of any contract of
service between him and the Company which may be involved in such
revocation or termination. Any person so appointed shall receive
such remuneration (if any) (whether by way of salary, commission,
participation in profits or otherwise) as the Board may
determine, and either in addition to or in lieu of his
remuneration as a Director.
DELEGATION OF THE BOARD'S POWERS
88. The Board may by power of attorney appoint any company, firm
or person or any fluctuating body of persons, whether nominated
directly or indirectly by the Board, to be the attorney or
attorneys of the Company for such purposes and with such powers,
authorities and discretions (not exceeding those vested in or
exercisable by the Board under these By-Laws) and for such period
and subject to such conditions as it may think fit, and any such
power of attorney may contain such provisions for the protection
and convenience of persons dealing with any such attorney and of
such attorney as the Board may think fit, and may also authorise
any such attorney to sub-delegate all or any of the powers,
authorities and discretions vested in him.
89. The Board may entrust to and confer upon any Director or
officer any of the powers exercisable by it upon such terms and
conditions with such restrictions as it thinks fit, and either
collaterally with, or to the exclusion of, its own powers, and
may from time to time revoke or vary all or any of such powers
but no person dealing in good faith and without notice of such
revocation or variation shall be affected thereby.
21<PAGE>
90. The Board may delegate any of its powers, authorities and
discretions to committees, consisting of such person or persons
(whether a member or members of its body or not) as it thinks
fit. Any committee so formed shall, in the exercise of the
powers, authorities and discretions so delegated, conform to any
regulations which may be imposed upon it by the Board.
PROCEEDINGS OF THE BOARD
91. The Board may meet for the despatch of business, adjourn and
otherwise regulate its meetings as it thinks fit. Questions
arising at any meeting shall be determined by a majority of
votes. In the case of an equality of votes the motion shall be
deemed to have been lost. A Director may, and the Secretary on
the requisition of a Director shall, at any time summon a meeting
of the Board.
92. Notice of a meeting of the Board shall be deemed to be duly
given to a Director if it is given to him personally or by word
of mouth or sent to him by post, cable, telex, telecopier or
other mode of representing or reproducing words in a legible and
non-transitory form at his last known address or any other
address given by him to the Company for this purpose. A Director
may waive notice of any meeting either prospectively or
retrospectively.
93. (a) The quorum necessary for the transaction of the
business of the Board may be fixed by the Board and, unless so
fixed at any other number, shall be two individuals. Any Director
who ceases to be a Director at a meeting of the Board may
continue to be present and to act as a Director and be counted in
the quorum until the termination of the meeting if no other
Director objects and if otherwise a quorum of Directors would not
be present.
(b) A Director who to his knowledge is in any way, whether
directly or indirectly, interested in a contract or proposed
contract, transaction or arrangement with the Company and has
complied with the provisions of the Companies Acts and these By-
Laws with regard to disclosure of his interest shall be entitled
to vote in respect of any contract, transaction or arrangement in
which he is so interested and if he shall do so his vote shall be
counted, and he shall be taken into account in ascertaining
whether a quorum is present.
94. So long as a quorum of Directors remains in office, the
continuing Directors may act notwithstanding any vacancy in the
Board but, if no such quorum remains, the continuing Directors or
a sole continuing Director may act only for the purpose of
calling a general meeting.
22<PAGE>
95. The Chairman (if any) of the Board or, in his absence, the
President shall preside as chairman at every meeting of the
Board. If there is no such Chairman or President, or if at any
meeting the Chairman or the President is not present within five
minutes after the time appointed for holding the meeting, or is
not willing to act as chairman, the Directors present may choose
one of their number to be chairman of the meeting.
96. The meetings and proceedings of any committee consisting of
two or more members shall be governed by the provisions contained
in these By-Laws for regulating the meetings and proceedings of
the Board so far as the same are applicable and are not
superseded by any regulations imposed by the Board.
97. A resolution in writing signed by all the Directors for the
time being entitled to receive notice of a meeting of the Board
or by all the members of a committee for the time being shall be
as valid and effectual as a resolution passed at a meeting of the
Board or, as the case may be, of such committee duly called and
constituted. Such resolution may be contained in one document or
in several documents in the like form each signed by one or more
of the Directors or members of the committee concerned.
98. A meeting of the Board or a committee appointed by the Board
may be held by means of such telephone, electronic or other
communication facilities as permit all persons participating in
the meeting to communicate with each other simultaneously and
instantaneously and participation in such a meeting shall
constitute presence in person at such meeting.
99. All acts done by the Board or by any committee or by any
person acting as a Director or member of a committee or any
person duly authorised by the Board or any committee, shall,
notwithstanding that it is afterwards discovered that there was
some defect in the appointment of any member of the Board or such
committee or person acting as aforesaid or that they or any of
them were disqualified or had vacated their office, be as valid
as if every such person had been duly appointed and was qualified
and had continued to be a Director, member of such committee or
person so authorised.
OFFICERS
100. The officers of the Company shall include a President and a
Vice-President or a Chairman and a Deputy Chairman who shall be
Directors and shall be elected by the Board as soon as possible
after the statutory meeting and each Annual General Meeting. In
addition, the Board may appoint any person whether or not he is a
Director to hold such office as the Board may from time to time
determine. Any person elected or appointed pursuant to this By-
Law shall hold office for such period and upon such terms as the
Board may determine and the Board may revoke or terminate any
such election or appointment. Any such revocation or termination
23<PAGE>
shall be without prejudice to any claim for damages that such
officer may have against the Company or the Company may have
against such officer for any breach of any contract of service
between him and the Company which may be involved in such
revocation or termination. Save as provided in the Companies
Acts or these By-Laws, the powers and duties of the officers of
the Company shall be such (if any) as are determined from time to
time by the Board.
MINUTES
101. The Directors shall cause minutes to be made and books kept
for the purpose of recording -
(a) all appointments of officers made by the Directors;
(b) the names of the Directors and other persons (if any)
present at each meeting of Directors and of any
committee;
(c) of all proceedings at meetings of the Company, of the
holders of any class of shares in the Company, and of
committees;
(d) of all proceedings of managers (if any).
SECRETARY
102. The Secretary shall be appointed by the Board at such
remuneration (if any) and upon such terms as it may think fit and
any Secretary so appointed may be removed by the Board.
The duties of the Secretary shall be those prescribed by the
Companies Acts together with such other duties as shall from time
to time be prescribed by the Board.
103. A provision of the Companies Acts or these By-Laws requiring
or authorising a thing to be done by or to a Director and the
Secretary shall not be satisfied by its being done by or to the
same person acting both as Director and as, or in the place of,
the Secretary.
THE SEAL
104. (a) The Seal shall consist of a circular metal device with
the name of the Company around the outer margin thereof and the
country and year of incorporation across the centre thereof.
Should the Seal not have been received at the Registered Office
in such form at the date of adoption of this By-Law then, pending
such receipt, any document requiring to be sealed with the Seal
shall be sealed by affixing a red wafer seal to the document with
the name of the Company, and the country and year of
incorporation type written across the centre thereof.
24<PAGE>
(b) The Board shall provide for the custody of every Seal.
A Seal shall only be used by authority of the Board or of a
committee constituted by the Board. Subject to these By-laws,
any instrument to which a Seal is affixed shall be signed by two
Directors or the Secretary and one Director, or by any two
persons whether or not Directors or the Secretary, who have been
authorised either generally or specifically to attest to the use
of a Seal; provided that the Secretary or a Director may affix a
Seal attested with his signature only to authenticate copies of
these By-Laws, the minutes of any meeting or any other documents
requiring authentication.
DIVIDENDS AND OTHER PAYMENTS
105. The Board may from time to time declare cash dividends or
distributions out of contributed surplus to be paid to the
Shareholders according to their rights and interests including
such interim dividends as appear to the Board to be justified by
the position of the Company. The Board may also pay any fixed
cash dividend which is payable on any shares of the Company half
yearly or on such other dates, whenever the position of the
Company, in the opinion of the Board, justifies such payment.
106. Except insofar as the rights attaching to, or the terms of
issue of, any share otherwise provide:-
(a) all dividends or distributions out of contributed
surplus may be declared and paid according to the
amounts paid up on the shares in respect of which the
dividend or distribution is paid, and an amount paid up
on a share in advance of calls may be treated for the
purpose of this By-Law as paid-up on the share;
(b) dividends or distributions out of contributed surplus
may be apportioned and paid pro rata according to the
amounts paid-up on the shares during any portion or
portions of the period in respect of which the dividend
or distribution is paid.
107. The Board may deduct from any dividend, distribution or
other moneys payable to a Shareholder by the Company on or in
respect of any shares all sums of money (if any) presently
payable by him to the Company on account of calls or otherwise in
respect of shares of the Company.
108. No dividend, distribution or other moneys payable by the
Company on or in respect of any share shall bear interest against
the Company.
109. Any dividend, distribution, interest or other sum payable in
cash to the holder of shares may be paid by cheque or warrant
sent through the post addressed to the holder at his address in
the Register or, in the case of joint holders, addressed to the
holder whose name stands first in the Register in respect of the
25<PAGE>
shares at his registered address as appearing in the Register or
addressed to such person at such address as the holder or joint
holders may in writing direct. Every such cheque or warrant
shall, unless the holder or joint holders otherwise direct, be
made payable to the order of the holder or, in the case of joint
holders, to the order of the holder whose name stands first in
the Register in respect of such shares, and shall be sent at his
or their risk and payment of the cheque or warrant by the bank on
which it is drawn shall constitute a good discharge to the
Company. Any one of two or more joint holders may give effectual
receipts for any dividends, distributions or other moneys payable
or property distributable in respect of the shares held by such
joint holders.
110. Any dividend or distribution out of contributed surplus
unclaimed for a period of six years from the date of declaration
of such dividend or distribution shall be forfeited and shall
revert to the Company and the payment by the Board of any
unclaimed dividend, distribution, interest or other sum payable
on or in respect of the share into a separate account shall not
constitute the Company a trustee in respect thereof.
111. With the sanction of a Resolution the Board may direct
payment or satisfaction of any dividend or distribution out of
contributed surplus wholly or in part by the distribution of
specific assets, and in particular of paid-up shares or
debentures of any other company, and where any difficulty arises
in regard to such distribution or dividend the Board may settle
it as it thinks expedient, and in particular, may authorise any
person to sell and transfer any fractions or may ignore fractions
altogether, and may fix the value for distribution or dividend
purposes of any such specific assets and may determine that cash
payments shall be made to any Shareholders upon the footing of
the values so fixed in order to secure equality of distribution
and may vest any such specific assets in trustees as may seem
expedient to the Board.
RESERVES
112. The Board may, before recommending or declaring any dividend
or distribution out of contributed surplus, set aside such sums
as it thinks proper as reserves which shall, at the discretion of
the Board, be applicable for any purpose of the Company and
pending such application may, also at such discretion, either be
employed in the business of the Company or be invested in such
investments as the Board may from time to time think fit. The
Board may also without placing the same to reserve carry forward
any sums which it may think it prudent not to distribute.
CAPITALIZATION OF PROFITS
113. The Company may, upon the recommendation of the Board, at
any time and from time to time pass a Resolution to the effect
that it is desirable to capitalize all or any part of any amount
26<PAGE>
for the time being standing to the credit of any reserve or fund
which is available for distribution or to the credit of any share
premium account or any capital redemption reserve fund and
accordingly that such amount be set free for distribution amongst
the Shareholders or any class of Shareholders who would be
entitled thereto if distributed by way of dividend and in the
same proportions, on the footing that the same be not paid in
cash but be applied either in or towards paying up amounts for
the time being unpaid on any shares in the Company held by such
Shareholders respectively or in payment up in full of unissued
shares, debentures or other obligations of the Company, to be
allotted and distributed credited as fully paid amongst such
Shareholders, or partly in one way and partly in the other, and
the Board shall give effect to such Resolution, provided that for
the purpose of this By-Law, a share premium account and a capital
redemption reserve fund may be applied only in paying up of
unissued shares to be issued to such Shareholders credited as
fully paid and provided further that any sum standing to the
credit of a share premium account may only be applied in
crediting as fully paid shares of the same class as that from
which the relevant share premium was derived.
114. Where any difficulty arises in regard to any distribution
under the last preceding By-Law, the Board may settle the same as
it thinks expedient and, in particular, may authorise any person
to sell and transfer any fractions or may resolve that the
distribution should be as nearly as may be practicable in the
correct proportion but not exactly so or may ignore fractions
altogether, and may determine that cash payments should be made
to any Shareholders in order to adjust the rights of all parties,
as may seem expedient to the Board. The Board may appoint any
person to sign on behalf of the persons entitled to participate
in the distribution any contract necessary or desirable for
giving effect thereto and such appointment shall be effective and
binding upon the Shareholders.
RECORD DATES
115. Notwithstanding any other provisions of these By-Laws, the
Company may by Resolution or the Board may fix any date as the
record date for any dividend, distribution, allotment or issue
and for the purpose of identifying the persons entitled to
receive notices of general meetings. Any such record date may be
on or at any time before or after any date on which such
dividend, distribution, allotment or issue is declared, paid or
made or such notice is despatched.
ACCOUNTING RECORDS
116. The Board shall cause to be kept accounting records
sufficient to give a true and fair view of the state of the
Company's affairs and to show and explain its transactions, in
accordance with the Companies Acts.
27<PAGE>
117. The records of account shall be kept at the Registered
Office or at such other place or places as the Board thinks fit,
and shall at all times be open to inspection by the Directors:
PROVIDED that if the records of account are kept at some place
outside Bermuda, there shall be kept at an office of the Company
in Bermuda such records as will enable the Directors to ascertain
with reasonable accuracy the financial position of the Company at
the end of each three month period. No Shareholder (other than
an officer of the Company) shall have any right to inspect any
accounting record or book or document of the Company except as
conferred by law or authorised by the Board or by Resolution.
118. A copy of every balance sheet and statement of income and
expenditure, including every document required by law to be
annexed thereto, which is to be laid before the Company in
general meeting, together with a copy of the auditors' report,
shall be sent to each person entitled thereto in accordance with
the requirements of the Companies Acts.
AUDIT
119. Save and to the extent that an audit is waived in the manner
permitted by the Companies Acts, auditors shall be appointed and
their duties regulated in accordance with the Companies Acts, any
other applicable law and such requirements not inconsistent with
the Companies Acts as the Board may from time to time determine.
SERVICE OF NOTICES AND OTHER DOCUMENTS
120. Any notice or other document (including a share certificate)
may be served on or delivered to any Shareholder by the Company
either personally or by sending it through the post (by airmail
where applicable) in a pre-paid letter addressed to such
Shareholder at his address as appearing in the Register or by
delivering it to or leaving it at such registered address. In
the case of joint holders of a share, service or delivery of any
notice or other document on or to one of the joint holders shall
for all purposes be deemed as sufficient service on or delivery
to all the joint holders. Any notice or other document if sent by
post shall be deemed to have been served or delivered seven days
after it was put in the post, and in proving such service or
delivery, it shall be sufficient to prove that the notice or
document was properly addressed, stamped and put in the post.
121. Any notice of a general meeting of the Company shall be
deemed to be duly given to a Shareholder if it is sent to him by
cable, telex, telecopier or other mode of representing or
reproducing words in a legible and non-transitory form at his
address as appearing in the Register or any other address given
by him to the Company for this purpose. Any such notice shall be
deemed to have been served twenty-four hours after its despatch.
122. Any notice or other document delivered, sent or given to a
Shareholder in any manner permitted by these By-Laws shall,
notwithstanding that such Shareholder is then dead or bankrupt or
28<PAGE>
that any other event has occurred, and whether or not the Company
has notice of the death or bankruptcy or other event, be deemed
to have been duly served or delivered in respect of any share
registered in the name of such Shareholder as sole or joint
holder unless his name shall, at the time of the service or
delivery of the notice or document, have been removed from the
Register as the holder of the share, and such service or delivery
shall for all purposes be deemed as sufficient service or
delivery of such notice or document on all persons interested
(whether jointly with or as claiming through or under him) in the
share.
WINDING UP
123. If the Company shall be wound up, the liquidator may, with
the sanction of a Resolution of the Company and any other
sanction required by the Companies Acts, divide amongst the
Shareholders 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 purposes set such values
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 Shareholders or different classes of Shareholders. The
liquidator may, with the like sanction, vest the whole or any
part of such assets in trustees upon such trust for the benefit
of the contributories as the liquidator, with the like sanction,
shall think fit, but so that no Shareholder shall be compelled to
accept any shares or other assets upon which there is any
liability.
INDEMNITY
124. Subject to the proviso below, every Director, officer of the
Company and member of a committee constituted under By-Law 90
shall be indemnified out of the funds of the Company against all
civil liabilities, loss, damage or expense (including but not
limited to liabilities under contract, tort and statute or any
applicable foreign law or regulation and all reasonable legal and
other costs and expenses properly payable) incurred or suffered
by him as such Director, officer or committee member and the
indemnity contained in this By-Law shall extend to any person
acting as a Director, officer or committee member in the
reasonable belief that he has been so appointed or elected
notwithstanding any defect in such appointment or election
PROVIDED ALWAYS that the indemnity contained in this By-Law shall
not extend to any matter which would render it void pursuant to
the Companies Acts.
125. Every Director, officer and member of a committee duly
constituted under By-Law 90 of the Company shall be indemnified
out of the funds of the Company against all liabilities incurred
by him as such Director, officer or committee member in defending
any proceedings, whether civil or criminal, in which judgment is
given in his favour, or in which he is acquitted, or in
connection with any application under the Companies Acts in which
relief from liability is granted to him by the court.
29<PAGE>
126. To the extent that any Director, officer or member of a
committee duly constituted under By-Law 90 is entitled to claim
an indemnity pursuant to these By-Laws in respect of amounts paid
or discharged by him, the relative indemnity shall take effect as
an obligation of the Company to reimburse the person making such
payment or effecting such discharge.
ALTERATION OF BY-LAWS
127. These By-Laws may be amended from time to time in the manner
provided for in the Companies Acts.
30<PAGE>
Exhibit B-128
INTERNATIONAL POWER ADVISORS, INC.
BY-LAWS
Offices
1. The Corporation shall have offices at such 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 on such
date and time as shall be determined by the Board of Directors.
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, <PAGE>
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. 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<PAGE>
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
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:<PAGE>
(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 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 <PAGE>
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 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, and a
Secretary, and may include a Chairman, Comptroller, 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 <PAGE>
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.
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;<PAGE>
(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 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.<PAGE>
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.
(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;<PAGE>
(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 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.<PAGE>
(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 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.<PAGE>
(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
Corporation 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 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
Secretaries 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
Corporation, 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.<PAGE>
(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
31. (a) If and when elected by the Board of Directors,
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.<PAGE>
(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
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.<PAGE>
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
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. <PAGE>
(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 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 <PAGE>
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
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 <PAGE>
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.
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.<PAGE>
Checks, Notes, Bonds and Other Instruments
43. (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.
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
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.<PAGE>
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.
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.<PAGE>
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-129
COLOMBIAN INSTALLATIONS, INC.
BY-LAWS
Offices
1. The Corporation shall have offices at such 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 on such
date and time as shall be determined by the Board of Directors.
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 <PAGE>
represented at the meeting, to adjourn the meeting from time to
time without notice other than announcement at the meeting,
untilthe 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. 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 <PAGE>
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 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, and a
Secretary, and may include a Chairman, Comptroller, 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 <PAGE>
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.
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;<PAGE>
(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 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.<PAGE>
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.
(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;<PAGE>
(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 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 <PAGE>
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 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.<PAGE>
(d) Any records kept by the Secretary shall be the
property of the Corporation and shall be restored to the
Corporation 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 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
Secretaries 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
Corporation, 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<PAGE>
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
31. (a) If and when elected by the Board of Directors,
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.<PAGE>
(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
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.<PAGE>
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
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. <PAGE>
(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 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 <PAGE>
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
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 <PAGE>
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.
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.<PAGE>
Checks, Notes, Bonds and Other Instruments
43. (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.
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
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.<PAGE>
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.
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.<PAGE>
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-130
EI ENERGY, INC.
By-Laws
(October 20, 1995)
<PAGE>
BY-LAWS
Offices
1. The principal office of EI ENERGY, 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 <PAGE>
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. 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:<PAGE>
(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 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 <PAGE>
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 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, and a
Secretary, and may include a Chairman, Comptroller, 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 <PAGE>
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.
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;<PAGE>
(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 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.<PAGE>
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.
(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;<PAGE>
(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 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.<PAGE>
(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 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.
(c) 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.<PAGE>
(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
Corporation 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 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
Secretaries 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
Corporation, 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.<PAGE>
(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
31. (a) If and when elected by the Board of Directors,
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.<PAGE>
(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
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.<PAGE>
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
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. <PAGE>
(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 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 <PAGE>
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
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 <PAGE>
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.
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.<PAGE>
Checks, Notes, Bonds and Other Instruments
43. (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.
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
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.<PAGE>
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.
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.<PAGE>
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-131
BY-LAWS
OF
VICTORIA ELECTRIC, INC.
Offices
1. Victoria Electric, Inc., (the "Corporation") shall
have offices at such 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 on such
date and time as shall be determined by the Board of Directors.
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 <PAGE>
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. 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<PAGE>
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
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:<PAGE>
(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 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<PAGE>
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.
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.<PAGE>
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
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, and a
Secretary, and may include a Chairman, Comptroller, 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 <PAGE>
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.
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:<PAGE>
(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 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;<PAGE>
(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.
(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:<PAGE>
(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 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.<PAGE>
(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 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.<PAGE>
(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
Corporation 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 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
Secretaries 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
Corporation, 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.<PAGE>
(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
31. (a) If and when elected by the Board of Directors,
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.<PAGE>
(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
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.<PAGE>
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
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. <PAGE>
(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 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 <PAGE>
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
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 <PAGE>
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.
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.<PAGE>
Checks, Notes, Bonds and Other Instruments
43. (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.
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
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.<PAGE>
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.
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.<PAGE>
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-141
SOLARIS POWER
An Unlimited Company
MEMORANDUM OF ASSOCIATION
1. Name of Company
The name of the company is Solaris Power
2. (No paragraph).
3. Unlimited liability of members
The liability of the members is unlimited.
WE the subscribers listed below wish to form a company pursuant
to this memorandum of association and we respectively agree to
take the number of shares in the capital of the company set out
opposite our respective names.
Full names, address Number of shares
and occupations of taken by each
subscribers subscriber Signature
Jill Elizabeth O'Rourke one share J. O'Rourke (sgd)
9 Napthali Close
Charnwood ACT 2615
Office Manager
Susan Lee McCarthy one share S. McCarthy (sgd)
29 Rafferty Street
Chapman ACT 2611
Solicitor
Robert John Walsh one share R. Walsh (sgd)
17 Canning Street
Ainslie ACT 2602
Co-ordinator
Bettie Anne McNee one share B. McNee (sgd)
32 Holmes Crescent
Campbell ACT 2601
Solicitor
Daniel Moulis one share D. Moulis (sgd)
87 Jacka Crescent
Campbell ACT 2601
Solicitor<PAGE>
DATED: November 22, 1995
Singed by each of the above
subscribers in the presence of: C. Cameron (sgd)
Cheryl Cameron
"Silbverbirch"
Barton Highway
Murrumbateman NSW 2582<PAGE>
Exhibit B-142
AUSTRALIAN SECURITIES COMMISSION
MEMORANDUM OF ASSOCIATION
OF
EI AUSTRALIA SERVICES
PTY LTD A.C.N. 071 514 255
CORRS CHAMBERS WESTGARTH
SOLICITORS
600 BOURKE STREET
MELBOURNE
VICTORIA 3000
03 9672 3000<PAGE>
Corporations Law
Company Limited by Shares
MEMORANDUM OF ASSOCIATION
OF
EI AUSTRALIA SERVICES PTY LTD
1. The name of the company is EI AUSTRALIA SERVICES PTY LTD
2. Subject to the Corporations Law of the Commonwealth of
Australia and th Corporations Act 1990 of the State or
Territory of incorporation (or an statutory modification
amendment or re-enactment thereof for the tim being in
force) the Company has the rights the powers and privileges
of natural person and, without limiting the generality of
the foregoing has power:
2.1 to issue and allot fully or partly paid shares in the
Company
2.2 to issue debentures of the Company
2.3 to distribute any of the property of the Company among the
membersrwise
2.4 to give security by charging uncalled capital
2.5 to rant a floating charge on property of the Compan
2.6 to procure the Company to be registered or recognised as a
bod cor orate in any lace outside the Jurisdiction
2.7 to grant a power of attorney to a person, firm or
corporation and
2.8 to do any other act that it is authorised to do by any other
law.
3. The liability of the members is limited.
4. The share capital with which the Company proposes to be
registered is Ten Million Dollars ($10,000,000.00) divided
into Ten Million (10,000,000) shares with power to increase
or reduce the capital and to divide the shares in the
original or increased capital for the time being into
several classes and to issue any part or parts of the
original capital or increased capital for the time being
with such deferred qualified or special rights privileges or
conditions with reference to preferential guaranteed fixed
fluctuating redeemable or to other dividend or interest or
with such priority in the distribution of assets otherwiise
as shall from time to time be determined by the Company.<PAGE>
5. The full names addresses and occupations of the subscribers
to this orandum of Association are as follows:
PETER DEAN and BRENDA DEAN
37 Jones Road 37 Jones Road
Tyabb 3913 Tyabb 3913
Consultant Consultant
WE, the several persons whose names are subscribed hereto are
desirous o being formed into a Company in pursuance of the
Memorandum of Association an respectively agree to take the
number of shares in the capital of the Company set out opposite
our res ective names.
Signature of Subscriber Number of Shares Signature and Address
of Witness
PETER DEAN
37 Jones Road
Tyabb 3913 (Consultant) One Share
SUSAN MARGARET McLEAN
74 Moorooduc Road
Frankston 3199
(Executive)
BRENDA DEAN
37 Jones Road
Tyabb 3913 (Consultant) One Share<PAGE>
Exhibit B-147
CORPORATIONS LAW
UNLIMITED COMPANY
ARTICLES OF ASSOCIATION
OF
SOLARIS POWER
(ACN 064 651 083)
Adopted with effect on and from 1995
by a special resolution passed on November 1995
1. PRELIMINARY
1.1 In these Articles:
'Adoption Date' means the date these Articles first bind
the Company;
'A Share' means one A Share (as defined in Article 2.1(a))
and includes one ordinary shares which is an A Share under
Article 2.2(a), 3.7 or 3.8;
'Alternate Director' means a person appointed as an
alternate director under Article 63;
'Articles' means the articles of association of the
Company as amended from time to time;
'Auditor' means the Company's auditor;
'B Share' means one B Share (as defined in Article 2.1(b))
and includes one ordinary share which is a B Share under
Article 2.2(b), 3.7 or 3.8;
'business day' has the same meaning as in the Corporations
Law;
'C Share' means one C Share (as defined in Article 2.1(c))
and includes one preference share which is a C Share under
Article 2.2(c), 3.7 or 3.8;
'Company' means Solaris Power ACN 064 651 083;
'D Share' means one D Share (as defined in Article 2.1(d))
and includes one preference share which is a D Share under
Article 2.2(d), 3.7 or 3.8;
'Director' includes any person occupying the position of
director of the Company and, where appropriate, includes
an Alternate Director;
'Directors' means all or some of the Directors acting as a
board;
'dividend' includes bonus;
<PAGE>
'Executive Director' means a person appointed as an
executive director under Article 71.1;
'Managing Director' means a person appointed as managing
director under Article 71.1;
'Member' means a person entered in the Register or any
branch register as the holder of shares;
'Memorandum' means the memorandum of association of the
Company;
'Office' means the Company's registered office;
'Register' means the register of Members of the Company;
'registered address' means the last known address of a
Member as noted in the Register;
'Representative' means a person authorized by a Member to
act as its representative under Article 49.1;
'Seal' means the Company's common seal;
'Secretary' means any person appointed by the Directors to
perform any of the duties of a secretary of the Company;
'shares' means shares in the capital of the Company.
'Transfer Restrictions' means restrictions on the transfer
of the A Shares and C Shares under Article 23.
1.2 In these Articles, unless the context otherwise requires,
headings are for ease of reference only and do not affect
the construction of these Articles.
1.3 Division 10 of Part 1.2 of the Corporations Law applies in
relation to these Articles as if they were an instrument
made under the Corporations Law as in force on the day
when these Articles become binding on the Company.
1.4 An expression in an Article has the same meaning as in a
provision of the Corporations Law that deals with the same
matter as the Article, unless the contrary intention
appears in these Articles.
1.5 The regulations contained in Table A in Schedule 1 to the
Corporations Law do not apply to the Company.
2. CAPITAL AND SHARES - Authorized Capital
2.1 The share capital of the Company is $500,000,000 divided
into 500,000,000 shares of $1.00 each of which 200,000,000
shares are classified as follows:
(a) 50,000,000 A Class ordinary shares ('A Shares');
(b) 50,000,000 B Class ordinary shares ('B Shares');
<PAGE>
(c) 50,000,000 C Class preference shares ('C Shares');
and
(d) 50,000,000 D Class preference shares ('D Shares').
2.2 By force of this Article 2.2, but subject to these
Articles:
(a) all ordinary shares in the Company which are issued
as at the Adoption Date, other than B class ordinary
shares, are A Shares;
(b) all B class ordinary shares which are issued as at
the Adoption Date, are B Shares;
(c) all preference shares in the Company which are
issued as at the Adoption Date, other than D class
preference shares, are C Shares; and
(d) all D class preference shares in the Company which
are issued as at the Adoption Date, are D Shares.
2.3 Despite any other provision of these Articles:
(a) the rights and restrictions attaching to the
A Shares and the B Shares are the same except that
the A Shares are subject to the Transfer
Restrictions; and
(b) the rights and restrictions attaching to the
C Shares and the D Shares are the same, except that
the C Shares are subject to the Transfer
Restrictions.
3. CAPITAL AND SHARES - issue of shares
3.1 'Subject to these Articles, all unissued shares are under
the control of the Directors who may issue and allot, or
dispose of, the shares to persons:
(a) on terms determined by the Directors; and
(b) at par or, subject to the Corporations Law, at a
premium or discount.
3.2 Directors must not issue or allot any shares if,
immediately after the issue or allotment:
(a) the number of issued A Shares would be 20% or less
of the total number of issued A Shares and issued
B Shares; or
(b) the number of issued C Shares would be 20% or less
of the total number of issued C Shares and issued
D Shares.
3.3 Any purported issue or allotment of shares otherwise than
in accordance with Article 3.2 is null, void and of no
force or effect whatever, and any purported holder of such
<PAGE>
shares (including any purported transferee of any of such
shares) acknowledges and agrees that the purported holder
or (purported transferee) has no right to such shares
notwithstanding any rule of law or equity and agrees to
use its best endeavors, if required by the Directors or
the Company, to cause such issue or allotment to be set
aside and the rectification of the Register to remove the
name of the holder as the holder of such shares.
3.4 Subject to the Corporations Law and Article 3.5, the
Directors' power under Article 3.1 includes the power to
issue options over unissued shares and the power to issue
and allot preference shares that are, or at the option of
the Company are, liable to be redeemed.
3.5 The Directors must not issue options over unissued shares
if, assuming all those options, together with all options
previously issued (and not exercised), were exercised,
shares would be issued otherwise than in accordance with
Article 3.2.
3.6 Article 3.3 applies to any issue of options to take up
unissued shares otherwise than in accordance with Article
3.5 as if the references in Article 3.3 to shares were
references to such options and the reference to the
Register was a reference to the register of option
holders.
3.7 Subject to Articles 3.1, 3.2, 3.3 and 3.8 and the
Corporations Law, the Directors may issue and allot shares
with:
(a) any preferential, deferred or special rights,
privileges or conditions; or
(b) any restrictions in regard to dividend, voting,
return of capital or otherwise,
if on the issue of the shares, the shares are designated
as A Shares, B Shares, C Shares or D Shares.
3.8 If, subject to Article 3.2 and notwithstanding Article
3.7, shares are issued without being designated as
A Shares, B Shares, C Shares or D Shares, then whichever
is relevant of the following paragraphs apply:
(a) if the shares have attached rights and restrictions
which are the same as the rights and restrictions
attaching to the A Shares, the shares will be A
Shares;
(b) if the shares have attached rights and restrictions
which are the same as the rights and restrictions
attaching to the C Shares, the shares will be C
Shares;
(c) if neither paragraph (a) nor paragraph (b) applies,
the shares will be:
<PAGE>
(i) if the shares are preference shares,
D Shares; or
(ii) otherwise, B Shares,
for the purposes of these Articles.
3.9 Subject to Articles 3.1 to 3.8 inclusive and the
Corporations Law, the Company may issue and allot
preference shares that are, or at the option of the
Company are to be, liable to be redeemed.
3A. CAPITAL AND SHARES - Issue of C Shares and D Shares
3A.1 C Shares and D Shares rank equally with all other classes
of shares with respect to the payment of dividends
including any interim dividends. The right to dividend
attached to C Shares and D Shares is non-cumulative.
3A.2 On a reduction of capital (other than on a redemption of C
Shares or D Shares) or on a winding up of the Company,
each C Share and D Share will rank equally but in priority
to all other shares or classes of shares as regards return
of par value and any premium paid on the C Shares and D
Shares respectively, but will otherwise have no right to
participate for the payment of any remaining amounts
(whether on account of surplus assets, capital, profits or
otherwise).
3A.3 Subject to the Corporations Law, each C Share and D Share
held by the holder may be redeemed but only if:
(a) the Directors, having given not less than 10
business days notice of their intention to redeem
any C Share or D Share, resolve to redeem those
shares; or
(b) the holder requests and both the Directors and all
other holders of C Shares and D Shares consent in
writing, which consent may be given or withheld
(unreasonably or otherwise) in their respective
absolute discretions,
PROVIDED THAT no redemption of C Shares may occur if,
following that redemption, the number of issued C Shares
would be 20% or less of the total number of issued
C Shares and issued D Shares.
3A.4 The amount payable on an authorized redemption of a C
Share or D Share will equal the aggregate of the par value
of that share and any premium paid on the issue of that
share and must be paid at the time of the redemption.
3A.5 on redemption of a C Share or D Share, its holder must
surrender to the Company the relevant share certificate
but failure to deliver the certificate will not prejudice
or affect the redemption of the share.
<PAGE>
3A.6 The holder of a C Share or D Share (or both) will be
entitled to participate in the profits or assets of the
Company only as provided in this Article 3A.
3A.7 Other than as provided in Article 3A.2, the C Shares and D
Shares will not participate in distributions of surplus
assets, capital, profits or other amounts of the Company.
3A.8 The holders of C Shares and D Shares are entitled to
attend and speak at general meetings and to vote at such
meetings as provided for in these Articles and the voting
rights are as set out in Articles 40 to 49 inclusive.
3A.9 Subject to Article 3A.10,.after the initial issue of C
Shares and D Shares, no further shares may be created or
issued ranking equally with or in priority to the C Shares
and D Shares or providing for or allowing redemption on or
prior to the redemption of all the C Shares and D Shares
without the prior written consent of all of the holders of
the C Shares and D Shares, which consent may be given or
withheld (unreasonably or otherwise) in their respective
absolute discretions.
3A.10 Shares ranking equally with existing C Shares and D Shares
may be issued to the holders of existing C Shares and D
Shares in the same proportions as those shares are held
immediately prior to the time of that issue.
3A.11 Other than as provided in this Article 3A, the rights
attaching to C Shares and D Shares may not be varied or
abrogated in any way (whether directly or indirectly)
without the written consent of the holders of all C Shares
and D Shares, which consent may be given or withheld
(unreasonably or otherwise) in their respective absolute
discretions.
3A.12 If any provision of this Article 3A is inconsistent with
any other provision in these Articles, this Article 3A
prevails to the extent of the inconsistency.
4. CAPITAL AND SHARES - Buy-backs
4.1 Subject to the Corporations Law as it exists from time to
time and Article 4.2, the Company may buy back its own
shares (other than redeemable preference shares) on terms
and at times determined from time to time by the Directors
in their absolute direction (which may be exercised
unreasonably).
4.2 The Company may not buy back its own shares or agree or
offer to buy back its own shares, if, immediately after
the cancellation of the shares bought back:
(a) the number of issued A Shares would be 20% or less
of the total number of issued A Shares and issued
B Shares; or
<PAGE>
b) the number of issued C Shares would be 20% or less
of the total number of issued C Shares and issued
D Shares.
5. CAPITAL AND SHARES - Commission and brokerage
5.1 The Company may exercise the power conferred by the
Corporations Law to make payments by way of brokerage or
commission in respect of subscriptions for shares in the
Company.
5.2 Payments in accordance with this Article may be made in
cash, by the allotment of shares, by the grant of options
over shares, or by a combination of any of those methods,
or otherwise.
5.3 The Company may pay interest in accordance with section
202 of the Corporations Law on so much of its share
capital as is for the time being paid up.
6. CAPITAL AND SHARES - Trusts not recognized
6.1 Except as required by law, the Company will not recognize
any person as holding a share on trust and the Company
will not recognize any equitable, contingent, future or
partial interest or any other right in respect of a share
except the registered holder's absolute right of
ownership.
6.2 Subject to the other Articles, this Article 6 applies even
if the Company has notice of the relevant trust, interest
or right.
7. CAPITAL AND SHARES - Joint holders
7.1 If two or more persons are registered as the holders of a
share, they are taken to hold the share as joint tenants
with benefits of survivorship and the person whose name
appears first on the Register is the only joint holder
entitled to receive notices from the Company.
7.2 Any one of the joint holders of a share may give effectual
receipts for any dividend or return of capital payable to
the joint holders.
8. CAPITAL AND SHARES - Right to certificate
8.1 Subject to the conditions of allotment of any shares or
any class of shares:
(a) every Member is entitled free of charge to one
certificate for all shares registered in its name;
and
(b) a Member may request several certificates in
reasonable denominations for different portions of
its holding.
<PAGE>
8.2 (a) Subject to the conditions of allotment of any shares
or any class of shares, joint holders are entitled
to a single certificate in their joint names in
respect of each portion of their holding.
(b) The certificate will be sent to the joint holder
whose name appears first in the Register.
8.3 The Company must issue a replacement certificate for
shares in accordance with the Corporations Law if:
(a) the holder of the shares is entitled to a
certificate for those shares;
(b) satisfactory evidence has been received by the
Company that the certificate for shares previously
issued has been stolen, lost or destroyed and has
not been pledged, charged, sold or otherwise
disposed of; and
(c) the Member has undertaken in writing to the Company
to return the certificate to the Company if it is
found or received by the Member.
8.4 Every certificate for shares must be issued and despatched
in accordance with the Corporations Law.
9. CAPITAL AND SHARES - Replacement of certificate
The Directors may order worn out or defaced certificates
to be cancelled and replaced by new certificates.
10. CAPITAL AND SHARES Variation of class rights
10.1 Subject to Article 10.4, the rights attached to any class
of shares may, unless their terms of issue state
otherwise, be varied:
(a) with the written consent of the holders of 75% of
the issued shares of the class; or
(b) with the sanction of a special resolution passed at
a separate general meeting of the holders of shares
of the class.
10.2 The provisions of the Articles relating to general
meetings apply, with necessary changes, to separate class
meetings as if they were general meetings except that:
(a) a quorum is two persons holding or representing by
proxy at least one-third of the issued shares of the
class or, if there is one holder of shares in a
class, that person; and
(b) any holder of shares of the class, present in person
or by proxy, may demand a poll.
<PAGE>
10.3 The rights conferred on the holders of shares which are
not ordinary shares and which have preferential or other
special rights will, unless otherwise expressly provided
in these Articles by the respective terms of issue of the
shares, be taken to be varied by:
(a) the issue of more shares; or
(b) the conversion of securities to new securities,
which rank equally with or in priority to those shares.
10.4 No amendment to the rights attaching to any class of
shares may be authorized under these Articles or otherwise
if, assuming the amendment was made, the requirements of
Article 3.2 would be breached.
11. CALLS - Calls
11.1 Subject to the terms on which partly paid shares are
issued, the Directors may make calls on the holders of the
shares for any money unpaid on them (whether on account of
the nominal value of the shares or by way of premium on
the shares or both).
11.2 A call is made when the resolution of the Directors
authorizing it is passed. The Directors may require it to
be paid by installments.
11.3 The Directors may revoke or postpone a call before its due
date for payment.
11.4 At least 10 business days before the due date for payment
of a call the Company must send to Members on whom the
call is made a notice specifying:
(a) the amount of the call;
(b) the due date for payment; and
(c) the place for payment.
11.5 A Member to whom notice of a call is given in accordance
with this Article 11 must pay to the Company the amount
called in accordance with the notice.
11.6 Failure to send a notice of a call to any Member or the
non-receipt of a notice by any Member does not invalidate
the call.
11.7 Joint holders of shares are jointly and severally liable
to pay all calls in respect of their shares.
<PAGE>
12. CALLS - Installments
12.1 Where the Directors require a call to be payable by
installments:
(a) the amount of an installment is payable as if it were
a call made by the Directors and as if they had
given notice of it; and
(b) the consequences of late payment or non-payment of
an instalment are the same as the consequences of
late payment or non-payment of a call.
12.2 Any sum that by the terms of issue of a share, becomes
payable on allotment or at a fixed date, whether on
account of the nominal value of the share or by way of
premium will for the purposes of these Articles be deemed
to be a call duly made and payable on the date on which by
the terms of issue the sum becomes payable, and, in the
case of non-payment, all the relevant provisions of these
Articles as to payment of interest and expenses,
forfeiture or otherwise apply as if the sum had become
payable by virtue of a call duly made and notified.
13. CALLS - Interest and expenses on calls
If an amount called is not paid on or before the due date,
the person liable to pay the amount must also pay:
(a) interest on the amount from the due date to the time
of actual payment at a rate determined by the
Directors (not exceeding 20% per annum); and
(b) all expenses incurred by the Company as a
consequence of the non-payment,
but the Directors may waive payment of the interest and
expenses in whole or in part.
14. CALLS - Recovery of amounts due
On the hearing of any action for the recovery of money due
for any call, proof that:
(a) the name of the person sued was, when the call was
made, entered in the Register as a holder or the
holder of shares in respect of which the call was
made;
(b) the resolution making the call is duly recorded in
the Directors' minute book; and
(c) notice of the call was given to the person sued,
will be conclusive evidence of the debt.
<PAGE>
15. CALLS - Differentiation
The Directors may, on the issue of shares, differentiate
between the holders as to the amount of calls to be paid
and the times of payment.
16. CALLS - Payment of calls in advance
16.1 The Directors may accept from a member the whole or part
of the amount unpaid on a share before the amount accepted
has been called.
16.2 The Company may:
(a) pay interest on any amount accepted, until the
amount is payable under a call and at a rate (not
exceeding 20% per annum) agreed between the Member
and the Directors; and
(b) subject to any contract between the Company and the
member, repay all or any of the amount accepted in
excess of the amount called on the share.
16.3 Payment of an amount in advance of a call does not entitle
the paying Member to any dividend, benefit or advantage,
other than the payment of interest under this Article 16,
to which the Member would not have been entitled if it had
paid the amount when it became due.
17. LIEN AND FORFEITURE - Lien
17.1 The Company has a first and paramount lien on every partly
paid share for all.money:
(a) due and unpaid to the Company at a fixed time, in
respect of the share;
(b) presently payable by the holder of the share, or the
holder's estate, to the Company in respect of the
share; or
(c) which the Company is required by law to pay in
respect of the share.
17.2 The Company's lien extends to all dividends payable in
respect of the share.
17.3 Unless the Directors determine otherwise, the registration
of a transfer of a share operates as a waiver of the
Company's lien on the share.
17.4 The Directors may declare a share to be wholly or partly
exempt from a lien.
<PAGE>
18. LIEN AND FORFEITURE - Lien sale
If:
(a) the Company has a lien on a share for money
presently payable; and
(b) the Company has given the Member who holds the share
written notice demanding payment of the money,
then 14 or more days after giving the notice, the
Directors may sell the share in any manner determined by
them.
19. LIEN AND FORFEITURE - Forfeiture notice
19.1 The Directors may at any time after a call or installment
becomes payable and remains unpaid by a Member, serve a
notice on the Member requiring the Member to pay:
(a) the unpaid amount;
(b) any interest that has accrued; and
(c) all expenses incurred by the Company as a
consequence of the non-payment.
19.2 The notice under Article 19.1 must:
(a) specify a day (not earlier than 14 days after the
date of the notice) on or before which the payment
required by the notice must be made; and
(b) state that if a Member does not comply with the
notice, the shares in respect of which the call was
made or instalment is payable will be liable to be
forfeited.
20. LIEN AND FORFEITURE - Forfeiture
20.1 If a Member does not comply with a notice served under
Article 19, then any or all of the.shares in respect of
which the notice was given may be forfeited pursuant to a
resolution of the Directors.
20.2 Dividends declared and unpaid in respect of forfeited
shares will also be forfeited.
20.3 On forfeiture, shares become the property of the Company
and forfeited shares may be sold, disposed of or cancelled
on terms determined by the Directors PROVIDED THAT no
cancellation of A Shares or C Shares may occur if,
following that cancellation:
(a) the number of issued A Shares would be 20% or less
of the total number of issued A Shares and issued
B Shares; or
<PAGE>
(b) the number of issued C Shares would be 20% or less
of the total number of issued C Shares and issued
D Shares.
20.4 The Directors may, at any time before a forfeited share is
sold, disposed of or cancelled, annul the forfeiture of
the share on conditions determined by them.
20.5 Promptly after a share has been forfeited:
(a) notice of the forfeiture must be given to the Member
in whose name the share was registered immediately
before its forfeiture; and
(b) the forfeiture and its date must be noted in the
Register.
21. LIEN AND FORFEITURE - Liability of former Member
21.1 The interest of a person who held shares which are
forfeited is extinguished but the former Member remains
liable to pay:
(a) all money (including interest and expenses) that was
payable by the Member to the Company at the date of
forfeiture in respect of the forfeited shares; and
(b) interest from the date of forfeiture until payment
at a rate determined by the Directors (not exceeding
20% per annum).
21.2 A former Member's liability to the Company ceases if and
when the Company receives payment in full of all money
(including interest and expenses) payable by the person in
respect of the shares.
22. LIEN AND FORFEITURE - Sale
22.1 The Company may:
(a) receive the consideration (if any) given for a
forfeited share on any sale or disposition of the
share; and
(b) execute a transfer of the share in favor of a
person to whom the share is sold or disposed of.
22.2 The purchaser of the share:
(a) is not bound to check the regularity of the sale or
the application of the purchase price;
(b) obtains title to the share despite any irregularity
in the sale; and
(c) will not be subject to complaint or remedy by the
former holder of the share in respect of the
purchase.
<PAGE>
22.3 A statement signed by a Director and the Secretary that
the share has been regularly forfeited and sold or
re-allotted, or regularly sold without forfeiture to
enforce a lien, is conclusive evidence of the matters
stated as against all persons claiming to be entitled to
the share.
22.4 The net proceeds of any sale made to enforce a lien or on
forfeiture must be applied by the Company in the following
order:
(a) in payment of the costs of the sale;
(b) in payment of all amounts secured by the lien or all
money that was payable in respect of the forfeited
share; and
(c) in payment of any surplus to the former Member whose
share was sold.
23. TRANSFER OF SHARES - Transfer
23.1 Subject to these Articles, a Member may transfer the
shares held by that Member.
23.2 All transfers of A Shares and C Shares are subject to the
following restrictions:
(a) subject to paragraphs (b) and (c), a Member which is
the holder of A Shares or C Shares (or both)
('Transferring Member') may only transfer all or any
of those shares so held ('Subject Shares') where:
(i) the Transferring Member gives notice in
writing to all other Members, setting out the
number and class or classes of Subject Shares
which the Transferring Member proposes to
transfer ('Transferring Shares'), the name
and address of the proposed transferee or
transferees and the number and class or
classes of Transferring Shares to be
transferred to each such transferee (such
notice, 'Transferor Notice'); and
(ii) each of the Members other than the
Transferring Member ('Other Members')
consents in writing, which consent may be
given or withheld by any of the Other Members
(unreasonably or otherwise) in each other
Member's absolute discretion, to either:
(A) the transfers of shares proposed in the
Transferor Notice; or
(B) the transfers of a lesser number of
shares (of any class or classes or all
classes) to that set out in the
<PAGE>
Transferor Notice (such fewer shares,
'Consent Shares'),
and any such consent may be subject to such
conditions as any of such Other Members may
determine in its absolute discretion
('Consent Conditions'); and
(iii) the Transferring Member:
(A) transfers not more than the
Transferring Shares or, if there are
Consent Shares, not more than the
lowest number of Consent Shares; and
(B) complies with each condition set out in
the consents of each of the Other
Members;
(b) paragraph (a) does not restrict the transfer of A
Shares or C Shares from one Member to another Member
in circumstances where the transferee of those
shares holds them legally and beneficially PROVIDED
THAT, for the purposes of this Article 23.2(b),
where a Member is currently or, following a
transfer, will be absolutely entitled to A Shares or
C Shares as against a nominee of the Member
registered as the holder of those shares (in
circumstances where that Member has not created any
equitable interest in its right to the shares held
by the nominee), the nominee will be deemed to be a
Member holding those shares legally and
beneficially; and
(c) if paragraph (a) is, by rule or operation of any law
or any principle of equity, interpreted so as to
require that consent to a transfer of A Shares or C
Shares can only be withheld in circumstances where
the withholding is reasonable, paragraph (a) has no
force or effect, is deemed never to have had any
force or effect, and transfers of A Shares and C
Shares are absolutely prohibited except in
accordance with paragraph (b).
23.3 Any purported transfer of A Shares or C Shares otherwise
than in accordance with Article 23.2 will be null and void
and will have no effect whatever, and:
(a) the purported transferor will continue to be a
Member and have all rights and be subject to all
restrictions attaching to the shares which were
purported to be transferred; and
(b) the purported transferee will neither have any
rights nor be subject to any restrictions attaching
to the shares and will not be a Member unless
entered in the Register in accordance with these
Articles as the holder of other shares.
23.4 Subject to Articles 23.2 and 23.3, shares may be
transferred by:
<PAGE>
(a) a written transfer instrument in any usual or common
form; or
(b) any other form approved by the Directors.
23.5 A written transfer instrument referred to in Article 23.4
must be executed by or on behalf of the transferor and the
transferee.
23.6 (a) A transferor of shares remains the holder of the
shares transferred until the transfer is registered
and the name of the transferee is entered in the
Register in respect of the shares.
(b) A transfer of shares does not pass the right to any
dividends declared on the shares until such
registration.
24. TRANSFER OF SHARES - Transfer procedure
24.1 For a transfer of shares:
(a) the written transfer instrument must be left at the
Office or the office of the Company's share
registrar, together with any fee (of $1.00 or less)
the Directors require;
(b) the instrument must be accompanied by a certificate
for the shares dealt with in the transfer, unless
the Directors waive production of the certificate on
receiving satisfactory evidence of the loss or
destruction of the certificate; and
(c) the Directors may require other evidence of the
transferor's right to transfer the shares.
24.2 Subject to the powers vested in the Directors by these
Articles, the Company must register all registrable
transfer forms relating to transfers of shares in
accordance with these Articles and issue certificates
without charge, except where the issue of a certificate is
to replace a lost or destroyed certificate.
25. TRANSFER OF SHARES - Right to refuse registration
25.1 The Directors:
(a) must refuse to register any transfer of shares which
is, or which they consider to be, in breach of any
of the Articles and any purported registration of
such a transfer will have no effect and the Register
will be deemed not to have been amended or altered
by that purported registration; and
<PAGE>
(b) without in any way limiting paragraph (a), may in
their absolute discretion and without assigning any
reason decline to register any transfer of shares or
other securities.
25.2 Subject to Article 25.1, the Directors may in their
absolute discretion refuse to register any transfer of
shares or other securities on which stamp duty is payable
but unpaid.
26. TRANSFER OF SHARES - Closure of register
The transfer books and the Register may be closed for up
to 30 days in each year.
27. TRANSMISSION OF SHARES - Title on death
27.1 Notwithstanding the succeeding provisions of this Article
27, the Company will not recognize any person as having
any rights in relation to a deceased Member's shares
unless that person has first satisfied the Transfer
Restrictions, as appropriate.
27.2 The legal personal representative of a deceased Member who
was the sole holder of shares is the only person whom the
Company will recognize as having any title to the deceased
Member's shares.
27.3 If a deceased Member was a joint holder of shares, the
other joint holder is the only person whom the Company
will recognize as having any title to the deceased
Member's shares.
27.4 The estate of the deceased Member will not be released
from any liability to the Company in respect of the
shares.
27.5 The Company may register a transfer to a transferee who
dies before the transfer is registered.
28. TRANSMISSION OF SHARES - Transmission
28.1 Notwithstanding the succeeding provisions of this Article
28, the Company will not recognize any person as having
any rights in relation to a deceased, lunatic or bankrupt
Member's shares unless that person has first satisfied the
Transfer Restrictions, as appropriate.
28.2 Subject to these Articles, a person who becomes entitled
to a share in consequence of the death, lunacy or
bankruptcy of a Member may, subject to producing to the
Directors evidence of its entitlement which is
satisfactory to the Directors, elect to:
(a) be registered as the holder of the share; or
(b) transfer the share to some other person nominated by
it.
<PAGE>
28.3 If the person who has become entitled to a share:
(a) elects to be registered as the holder, then the
person must deliver or send to the Company a written
notice of election signed by it; or
(b) elects to transfer the share, then the person must
execute a transfer of the share.
28.4 An election to be registered as a holder of a share under
paragraph 28.1(a) or a transfer of a share from a Member
or deceased Member under this Article 28 is subject to the
same limitations, restrictions and provisions of these
Articles as would apply if the election were a transfer or
the transfer were made by the Member or deceased Member
itself.
28.5 A person who:
(a) has become entitled to a share by operation of law;
and
(b) has produced evidence of its entitlement which is
satisfactory to the Directors,
is entitled to the dividends and other rights of the
registered holder of the share.
28.6 Where two or more persons are jointly entitled to any
share in consequence of the death of the registered
holder, they will be considered to be joint holders of the
share.
28.7 Any person who is registered under this clause must
indemnify the Company against all liabilities, costs,
losses and expenses incurred by the Company as a result of
registering the person.
29. CHANGES TO SHARE CAPITAL - Changes to share capital
29.1 Subject to Article 29.2, the Company may by resolution:
(a) increase its authorized share capital by creating
new shares of the amount specified in the
resolution;
(b) consolidate and divide all or any of its share
capital into shares of larger amount than its
existing shares;
(c) convert, or provide for the conversion of, all or
any of its fully paid shares into stock, or
reconvert or provide for the reconversion of that
stock into paid up shares of any denomination;
(d) subdivide its shares or any of them into shares of
smaller amount than its existing shares but so that,
in the subdivision, the proportion between the
<PAGE>
amount paid and the amount (if any) unpaid on each
share of a smaller amount is the same as it was in
the case of the share from which the share of the
smaller amount is derived; and
(e) cancel shares that, at the date of the resolution,
no person has taken or agreed to take or that have
been forfeited, and reduce the amount of its share
capital by the amount of the shares cancelled.
29.2 The Company must not by resolution or otherwise alter the
provisions of the Memorandum in any of the ways mentioned
in section 193(l) of the Corporations Law if immediately
after the alteration:
(a) the number of issued A Shares would be 20% or less
of the total number of issued A Shares and issued
B Shares; or
(b) the total number of issued C Shares would be 20% or
less of the total number of issued C Shares and
issued D Shares.
29.3 Subject to Article 29.2, for the purpose of giving effect
to a consolidation or subdivision of all or any of the
share capital of the Company, the Directors may settle any
difficulty which arises as they think expedient and in
particular may:
(a) issue fractional certificates;
(b) vest any fractions of shares in trustees on such
trusts for the persons entitled to the fractions of
shares as may seem expedient to the Directors; or
(c) sell the shares representing the fractions for the
best price reasonably obtainable to any person and
distribute the net proceeds of sale (subject to
retention by the Company of small amounts where the
cost of distribution would be disproportionate to
the amounts involved) in due proportion among those
Members and, for such sale, any Director may execute
an instrument of transfer of the shares to the
purchaser.
29.4 Subject to Article 29.5, the Company may reduce in any way
its share capital, including any amount in its share
premium account.
29.5 The Company must not reduce its share capital if after
such reduction:
(a) the number of issued A Shares would be 20% or less
of the total number of issued A Shares and issued
B Shares; or
(b) the number of issued C Shares would be 20% or less
of the total number of issued C Shares and issued
D Shares.
<PAGE>
30. CHANGES TO SHARE CAPITAL - New shares
Subject to their terms of issue and the Articles, new
shares are considered part of the original capital and are
subject to these Articles.
31. GENERAL MEETINGS - Convening general meeting
31.1 Any Director may, at any time, convene a general meeting.
31.2 (a) A Member may only requisition the Directors to
convene a general meeting in accordance with section
246 of the Corporations Law.
(b) A Member may not convene or join in convening a
general meeting except under section 247 of the
Corporations Law.
32. GENERAL MEETINGS - Notice of general meeting
32.1 Subject to the provisions of the Corporations Law allowing
meetings to be convened with shorter notice:
(a) at least 21 days written notice (exclusive of the
day on which the notice is served or taken to be
served and of the day for which notice is given)
must be given to Members of any general meeting at
which a special resolution will be considered; and
(b) at least 14 days written notice (exclusive of the
day on which the notice is served or taken to be
served and of the day for which notice is given)
must be given to Members of all other general
meetings.
32.2 A notice convening a general meeting must:
(a) specify the place, date and hour of the meeting; and
(b) state the general nature of the business to be
transacted at the meeting.
32.3 A notice of an annual general meeting need not state that
the business to be transacted at the meeting includes:
(a) the consideration of accounts and the reports of the
directors and auditors;
(b) the election of directors in the place of those
retiring; or
(c) the appointment and fixing of the remuneration of
the Auditor.
<PAGE>
32.4 (a) The Directors may postpone or cancel any general
meeting whenever they think fit (other than a
meeting convened as the result of a requisition
under Article 31-2).
(b) The Directors must give notice of the postponement
or cancellation to all persons entitled to receive
notices from the Company.
32.5 The failure or accidental omission to send a notice of a
general meeting or the postponement of a general meeting
to any Member or the non-receipt of a notice by any member
does not invalidate the proceedings at or any resolution
passed at the general meeting.
33. PROCEEDINGS AT GENERAL MEETINGS - Member
In Articles 34, 35, 37 and 40, 'Member' includes a Member
present in person or by proxy, attorney or Representative.
34. PROCEEDINGS AT GENERAL MEETINGS - Quorum
34.1 No business may be transacted at a general meeting unless
a quorum of Members is present when the meeting proceeds
to business.
34.2 A quorum of Members is 2 Members.
34.3 If a quorum is not present within 30 minutes after the
time appointed for a meeting:
(a) if the meeting was convened on the requisition of
Members, it is automatically dissolved; or
(b) in any other case:
(i) it will stand adjourned to the same time and
place seven days after the meeting, or to
another day, time and place determined by the
Directors; and
(ii) if at the adjourned meeting a quorum is not
present within 30 minutes after the time
appointed for the meeting, it is
automatically dissolved.
35. PROCEEDINGS AT GENERAL MEETINGS - Chairperson
35.1 The chairperson, or in the chairperson's absence the
deputy chairperson, of Directors' meetings will be the
chairperson at every general meeting.
35.2 If:
(a) there is no chairperson or deputy chairperson; or
<PAGE>
(b) neither the chairperson nor deputy chairperson is
present within 15 minutes after the time appointed
for holding the meeting; or
(c) the chairperson and deputy chairperson are unwilling
to act as chairperson of the meeting,
the Directors present may elect a chairperson.
35.3 If no appointment is made under Article 35.2, then:
(a) the Members may elect one of the Directors present
as chairperson; or
(b) if no Director is present or is willing to take the
chair, the Members may elect one of the Members
present as chairperson.
35.4 If there is a dispute at a general meeting about a
question of procedure, the chairperson may determine the
question.
36. PROCEEDINGS AT GENERAL MEETINGS - Adjournment
36.1 The chairperson of a meeting at which a quorum is present:
(a) in his or her discretion may adjourn a meeting with
the meeting's consent; and
(b) must adjourn a meeting if the meeting directs him or
her to do so.
36.2 An adjourned meeting may take place at a different venue
to the initial meeting.
36.3 The only business that can be transacted at an adjourned
meeting is the unfinished business of the initial meeting.
36.4 If a general meeting has been adjourned for more than
21 days, at least three days written notice (exclusive of
the day on which the notice is served or taken to be
served and of the day for which notice is given) of the
adjourned meeting must be given to Members.
37. PROCEEDINGS AT GENERAL MEETINGS - Decision of questions
37.1 Subject to the Corporations Law in relation to special
resolutions, a resolution is carried if a majority of the
votes cast on the resolution are in favor of the
resolution.
37.2 A resolution put to the vote of a meeting is decided on a
show of hands unless a poll is demanded, before or on the
declaration of the result of the show of hands, by:
(a) the chairperson;
<PAGE>
(b) at least 2 Members who have the right to vote at the
meeting;
(c) any Member or Members who can vote not less than 10%
of all votes held by Members who have the right to
vote at the meeting; or
(d) any Member or Members who can vote shares on which
an amount has been paid up equal to not less than
10% of the total amount paid up on all shares
conferring the right to vote at the meeting.
37.3 The chairperson has a casting vote on a show of hands and
on a poll in addition to the chairperson's votes as a
Member, proxy, attorney or Representative.
37.4 Unless a poll is demanded:
(a) a declaration by the chairperson that a resolution
has been carried, carried by a specified majority,
or lost; and
(b) an entry to that effect in the minutes of the
meeting,
are conclusive evidence of the fact without proof of the
number or proportion of the votes in favor of or against
the resolution.
37.5 The demand for a poll may be withdrawn
37.6 A decision of a general meeting may not be impeached or
invalidated on the ground that a person voting at the
meeting was not entitled to do so.
38. PROCEEDINGS AT GENERAL MEETINGS - Taking a poll
38.1 A poll will be taken when and in the manner that the
chairperson directs.
38.2 The result of the poll will be the resolution of the
meeting at which the poll was demanded.
38.3 The chairperson may determine any dispute about the
admission or rejection of a vote.
38.4 The chairperson's determination, if made in good faith,
will be final and conclusive.
38.5 A poll demanded on the election of the chairperson or the
adjournment of a meeting must be taken immediately.
38.6 After a poll has been demanded at a meeting, the meeting
may continue for the transaction of business other than
the question on which the poll was demanded.
<PAGE>
39. PROCEEDINGS AT GENERAL MEETINGS - Written resolutions
39.1 Subject to the Corporations Law, if all the Members have
signed a document containing a statement that they are in
favor of a resolution in terms set out in the document,
then a resolution in those terms is taken to have been
passed at a general meeting held on the day on which the
document was last signed by a Member.
39.2 For the purposes of Article 39.1, two or more identical
documents, each of which is signed by one or more Members,
together constitute one document signed by those Members
on the days on which they signed the separate documents.
39.3 Any document referred to in this Article may be in the
form of a telex or facsimile transmission.
40. VOTES OF MEMBERS - Entitlement to vote
Subject to these Articles and to any rights or
restrictions attaching to any class of shares:
(a) every Member may vote;
(b) subject to Article 45.2, on a show of hands every
Member has one vote; and
(c) on a poll every Member has one vote for each fully
paid share.
41. VOTES OF MEMBERS - Unpaid calls
A Member is not entitled to vote or to be counted in a
quorum unless all calls and other sums payable by the
Member in respect of shares have been paid.
42. VOTES OF MEMBERS - Joint holders
If two or more joint holders purport to vote, the vote of
the joint holder whose name appears first in the Register
will be accepted, to the exclusion of the other joint
holder or holders.
43. VOTES OF MEMBERS - Objections
43.1 An objection to the qualification of a voter may only be
raised at the meeting or adjourned meeting at which the
voter tendered its vote.
43.2 An objection must be referred to the chairperson of the
meeting, whose decision is final.
43.3 A vote which the chairperson does not disallow pursuant to
an objection is valid for all purposes.
<PAGE>
44. VOTES OF MEMBERS - Votes by operation of law
A person who has satisfied the Directors not less than
24 hours before a general meeting that it is entitled to a
share by operation of law may exercise all rights attached
to the share in relation to a general meeting, as if the
person were the registered holder of the share.
45. VOTES OF MEMBERS - Votes by proxy
45.1 If a Member appoints one proxy, that proxy may vote on a
show of hands.
45.2 If a Member appoints two proxies, neither proxy may vote
on a show of hands.
45.3 A proxy may demand or join in demanding a poll.
46. VOTES OF MEMBERS - Instrument appointing proxy
46.1 A natural person may appoint one or two proxies by a
written appointment signed by the appointor or the
appointor's attorney.
46.2 A corporation may appoint one or two proxies by a written
appointment under the appointor's common seal or signed by
a director, secretary or attorney of the appointor.
46.3 A proxy need not be a Member.
46.4 If a Member appoints two proxies, that appointment is of
no effect unless each proxy is appointed to represent a
specified proportion of the appointor's voting rights.
46.5 (a) An appointment of a proxy must be in a form approved
by the Directors.
(b) Schedule I sets out a form which will be taken to be
approved by the Directors unless they resolve to use
a different form.
46.6 A proxy may vote or abstain as he or she chooses except to
the extent that an appointment of the proxy indicates the
manner in which the proxy will vote on any resolution.
The proxy must vote or abstain on a poll or show of hands
in accordance with any instructions on the appointment.
46.7 A proxy's appointment is valid at an adjourned meeting.
47. VOTES OF MEMBERS - Lodgment of proxy
47.1 The written appointment of a proxy or attorney must be
deposited at the office, or another address nominated by
the Company, not less than 48 hours (unless otherwise
specified in the notice of meeting to which the proxy
relates) before:
<PAGE>
(a) the time for holding the meeting or adjourned
meeting at which the appointee proposes to vote; or
(b) the taking of a poll on which the appointee proposes
to vote.
47.2 If the appointment purports to be executed under a power
of attorney or other authority, then the original
document, or an office copy or a notarially certified copy
of it, must be deposited with the appointment.
47.3 A facsimile of a written appointment of a proxy is
invalid.
48. VOTES OF MEMBERS - Validity
A vote cast in accordance with an appointment of proxy or
power of attorney is valid even if before the vote was
cast the appointor:
(a) died;
(b) became of unsound mind;
(c) revoked the proxy or power; or
(d) transferred the shares in respect of which the vote
was cast,
unless any written notification of the death, unsoundness
of mind, revocation or transfer was received at the Office
before the relevant meeting or adjourned meeting.
49. VOTES OF MEMBERS Representatives of corporations
49.1 Any Member which is a corporation may authorize a natural
person to act as its representative at any general meeting
of the Company or any class of Members. If a Member
corporation does so:
(a) its representative may exercise at the relevant
general meeting all the powers which the Member
corporation could exercise if it were a natural
person; and
(b) when its representative is present at a meeting, the
Member corporation will be considered to be
personally present at the meeting.
49.2 A certificate under the common seal of the corporation is
rebuttable evidence of the appointment or of the
revocation of the appointment (as appropriate) of the
Representative.
49.3 The chairperson of a general meeting may permit a person
claiming to be a Representative to exercise his or her
powers even if he or she has not produced a certificate
evidencing his or her appointment, or may allow the
<PAGE>
Representative to vote on the condition that he or she
subsequently establishes to the satisfaction of the
chairperson of the general meeting his or her status as a
Representative within a period prescribed by the
chairperson of the general meeting.
50. APPOINTMENT AND REMOVAL OF DIRECTORS - Number of Directors
50.1 There will be:
(a) a minimum of 3 Directors; and
(b) a maximum of 6 Directors, unless the Company in
general meeting by ordinary resolution changes the
maximum number.
50.2 The Directors in office at the date these Articles are
adopted by the Company continue in office subject to these
Articles.
51. APPOINTMENT AND REMOVAL OF DIRECTORS - Qualification
Neither a Director nor an Alternate Director has to hold
any shares.
52. APPOINTMENT AND REMOVAL OF DIRECTORS - Appointment and
removal of Directors
The Company may, subject to the Corporations Law, by
resolution passed in general meeting:
(a) remove any Director; and
(b) appoint another person in the Director's place.
53. APPOINTMENT AND REMOVAL OF DIRECTORS - Additional and
casual Directors
Subject to Article 50, the Directors may appoint any
person as a Director to fill a casual vacancy or as an
addition to the existing Directors.
54. APPOINTMENT AND REMOVAL OF DIRECTORS - Period of office
A Director will continue to hold office until he or she
dies or until his or her office is vacated pursuant to
Article 55.
<PAGE>
55. APPOINTMENT AND REMOVAL OF DIRECTORS - Vacation of Office
The office of a Director immediately becomes vacant if the
Director:
(a) is prohibited by the Corporations Law from
continuing as a Director;
(b) becomes of unsound mind or a person whose estate is
liable to be dealt with in any way under the law
relating to mental health;
(c) resigns by notice in writing to the Company; or
(d) is removed by a resolution of the Company.
56. REMUNERATION OF DIRECTORS - Remuneration of non-executive
Directors
56.1 The Directors (other than the Managing Director or an
Executive Director) may be paid as remuneration for their
services the aggregate maximum sum from time to time
determined by the Company in general meeting.
56.2 The remuneration will be divided between the non-executive
Directors in such proportion and manner as the Directors
agree and, in default of agreement, equally.
56.3 If a non-executive Director is required to perform
services for the Company which in the opinion of the
Directors are outside the scope of the ordinary duties of
a Director, then the Company may pay the Director a fixed
sum determined by the Directors in addition to or instead
of the Director's remuneration under Article 56.1.
56.4 The non-executive Directors may also be paid all
traveling, hotel and other expenses properly incurred by
them in attending and returning from meetings of the
Directors or any committee of the Directors or general
meetings of the Company or otherwise in connection with
the Company's business.
56.5 The Company may also pay a premium in respect of a
contract insuring a person who is or has been a non-
executive Director against a liability incurred by the
person as a Director, except in circumstances prohibited
by the Corporations Law.
57. REMUNERATION OF DIRECTORS - Remuneration of Executive
Directors
57.1 The remuneration of a Managing Director or of an Executive
Director may from time to time be fixed by the Directors.
57.2 The Company may also pay a premium in respect of a
contract insuring a person who is or has been an Executive
Director against a liability incurred by the person as a
<PAGE>
Director, except in circumstances prohibited by the
Corporations Law.
58. REMUNERATION OF DIRECTORS - Payment to former Directors
Subject to the Corporations Law, the Directors may:
(a) pay a gratuity, pension or allowance, on retirement
or other vacation of office, to a Director or to any
relative of a Director; and
(b) make contributions to any fund and pay any premiums
for the purchase or provision of any such gratuity,
pension or allowance.
59. POWERS AND DUTIES OF DIRECTORS - Directors to manage
Company
59.1 The business of the Company is managed by the Directors
who may exercise all powers of the Company that these
Articles and the Corporations Law do not require to be
exercised by the Company in general meeting.
59.2 Without limiting the generality of Article 59.1, the
Directors may exercise all the powers of the Company to:
(a) borrow money;
(b) charge any property or business of the Company or
all or any of its uncalled capital; and
(c) issue debentures or give any other security for a
debt, liability or obligation of the Company or of
any other person.
59.3 Every Director and other agent or officer of the Company
must:
(a) keep secret all aspects of all transactions of the
Company, except:
(i) to the extent necessary to enable the person
to perform his or her duties to the Company;
(ii) as required by law;
(iii) when requested to disclose information by the
Directors, to the auditors of the Company or
a general meeting of the Company;
(b) if requested by the Directors, sign and make a
declaration that he.or she.will not disclose or
publish any aspect of any transaction of the
Company.
59.4 All checks, promissory notes, bankers drafts, bills of
exchange and other negotiable instruments, and all
receipts for money paid to the Company, must be signed,
<PAGE>
drawn, accepted, endorsed or otherwise executed, as the
case may be, by any two Directors or in such other manner
as the Directors determine.
60. PROCEEDINGS OF DIRECTORS - Directors' meetings
60.1 A Director may at any time, and the Secretary must on the
requisition of a Director, convene a Directors' meeting.
60.2 (a) A Directors' meeting may be held by the Directors
communicating with each other by any technological
means by which they are able simultaneously to hear
each other and to participate in discussion.
(b) The Directors need not all be physically present in
the same place for a Directors' meeting to be held.
(c) A Director who participates in a meeting held in
accordance with this Article 60.2 is taken to
present and entitled to vote at the meeting.
60.3 Article 60.2 applies to meetings of Directors' committees
as if all committee members were Directors.
60.4 The Directors may meet together, adjourn and regulate
their meetings as they think fit.
60.5 At a meeting of Directors, a quorum is two Directors.
61. PROCEEDINGS OF DIRECTORS - Decision of questions
61.1 Subject to the Articles, questions arising at a meeting of
Directors are to be decided by a majority of votes of the
Directors present and voting.
61.2 The chairperson of a meeting does not have a casting vote
in addition to his or her deliberative vote if there is an
equality of votes.
61.3 (a) An Alternate Director has one vote for each Director
for whom he or she is an alternate.
(b) If the Alternate Director is a Director, he or she
also has a vote as a Director.
62. PROCEEDINGS OF DIRECTORS - Directors' interests
62.1 A Director and any firm, body or entity in which a
Director has a direct or indirect interest may in any
capacity:
(a) enter into any contract or arrangement with the
Company;
(b) be appointed to and hold any office or place of
profit under the Company, other than the office of
auditor; and
<PAGE>
(c) act in a professional capacity, other than as
auditor, for the Company,
and may receive and retain for his or her own benefit any
remuneration, profits or benefits as if he or she were not
a Director.
62.2 Each Director must disclose his or her interests to the
Company in accordance with the Corporations Law and the
Secretary must record all declarations in the minutes of
the relevant Directors' meeting.
62.3 A Director's failure to make disclosure under this Article
does not render void or voidable a contract or arrangement
in which the Director has a direct or indirect interest.
62.4 (a) A Director must not vote in respect of a contract or
arrangement or proposed contract or arrangement in
which the Director has a direct or indirect material
interest.
(b) If the Director does purport to vote, the Director's
vote will not be counted.
(c) The requirement in paragraph (a) is in addition to
any requirements of the Corporations Law in relation
to voting by an interested director of a public
company.
62.5 A Director may attest the affixing of the Seal to any
document relating to a contract or arrangement or proposed
contract or arrangement in which the Director has an
interest.
63. PROCEEDINGS OF DIRECTORS - Alternate Directors
63.1 A Director may appoint any person as his or her alternate
for a period determined by that Director.
63.2 An Alternate Director is entitled to notice of Directors'
meetings and, if the appointor is not present at a
meeting, is entitled to attend, be counted in a quorum and
vote as a Director.
63.3 An Alternate Director is an officer of the Company and is
not an agent of the appointor.
63.4 The provisions of these Articles which apply to Directors
also apply to Alternate Directors, except that Alternate
Directors are not entitled to any remuneration from the
Company.
63.5 (a) The appointment of an Alternate Director may be
revoked at any time by the appointor.
(b) An Alternate Director's appointment ends
automatically when his or her appointor ceases to be
a Director.
<PAGE>
63.6 Any appointment or revocation under this Article must be
effected by written notice delivered to the Secretary.
64. PROCEEDINGS OF DIRECTORS - Associate directors
64.1 The Directors may appoint a person to be an associate
director and may remove a person so appointed.
64.2 The Directors may define and limit the duties and powers
of associate directors and their remuneration for their
services as associate directors.
64.3 A person appointed as an associate director is not a
Director for any of the purposes of these Articles or of
the Corporations Law and accordingly:
(a) is not a member of the board of Directors or of any
committee of Directors;
(b) is not entitled to be present at any meeting of the
Directors or of any committee of the Directors
except at the request of the Directors or of a
committee of Directors; and
(c) if present at such request, may not vote or form
part of a quorum.
65. PROCEEDINGS OF DIRECTORS - Remaining Directors
65.1 The Directors may act even if there are vacancies on the
board.
65.2 If the number of Directors is not sufficient to constitute
a quorum at a Directors' meeting, the Directors may act
only to:
(a) appoint a Director; or
(b) convene a general meeting.
66. PROCEEDINGS OF DIRECTORS - Chairperson
66.1 The Directors may elect a Director as chairperson of
Directors' meetings and may determine the period for which
the chairperson will hold office.
66.2 If no chairperson is elected or if the chairperson is not
present at any Directors' meeting within 10 minutes after
the time appointed for the meeting to begin, the Directors
present must elect a Director to be chairperson of the
meeting.
66.3 The Directors may elect a Director as deputy chairperson
to act as chairperson in the chairperson's absence.
<PAGE>
67. PROCEEDINGS OF DIRECTORS - Directors' committees
67.1 (a) The Directors may delegate any of their powers to a
Committee or committees.
(b) A committee must include at least one Director.
(c) The Directors may at any time revoke any delegation
of power to a committee.
67.2 A committee must exercise its powers in accordance with
any directions of the Directors and a power exercised in
that way is taken to have been exercised by the Directors.
67.3 A committee may be authorized to sub-delegate all or any
of the powers for the time being vested in it.
67.4 Meetings of any committee will be governed by the
provisions of these Articles which deal with Directors,
meetings so far as they are applicable and are not
inconsistent with any directions of the Directors.
68. PROCEEDINGS OF DIRECTORS - Written resolutions
68.1 If all the Directors who are eligible to vote on a
resolution have signed a document containing a statement
that they are in favor of a resolution in terms set out
in the document, then a resolution in those terms is taken
to have been passed at a Directors' meeting held on the
day on which the document was last signed by a Director.
68.2 For the purposes of Article 68.1, two or more identical
documents, each of which is signed by one or more
Directors, together constitute one document signed by
those Directors on the days on which they signed the
separate documents.
68.3 Any document referred to in this Article may be in the
form of a telex or facsimile transmission.
68.4 This Article applies to meetings of Directors' committees
as if all members of the committee were Directors.
69. PROCEEDINGS OF DIRECTORS - Validity of acts of Directors
If it is discovered that:
(a) there was a defect in the appointment of a person as
a Director, Alternate Director or member of a
Directors' committee; or
(b) a person appointed to one of those positions was
disqualified;
all acts of the Directors or the Directors' committee
before the discovery was made are as valid as if the
person had been duly appointed and was not disqualified.
<PAGE>
70. PROCEEDINGS OF DIRECTORS - Minutes and registers
70.1 The Directors must cause minutes to be made of:
(a) the names of the Directors present at all general
meetings, Directors' meetings and meetings of
Directors' committees;
(b) all resolutions and proceedings of general meetings,
Directors' meetings and meetings of Directors'
committees;
(c) all orders made by the Directors and Directors'
committees; and
(d) all disclosures of interests made pursuant to
Article 62.
70.2 Minutes must be signed by the chairperson of the meeting
or by the chairperson of the next meeting of the relevant
body.
70.3 The Company must keep all registers required by these
Articles and the Corporations Law.
71. MANAGING OR EXECUTIVE DIRECTOR - Appointment of Managing
or Executive Director
71.1 (a) The Directors may appoint a Director to the office
of Managing Director or any other office (other than
auditor) or employment under the Company for any
period (but not for life) and on any terms as they
think fit.
(b) A Director (other than a Managing Director) so
appointed is referred to in these Articles as an
Executive Director.
71.2 The Directors may, subject to the terms of a Managing
Director's or Executive Director's employment contract,
suspend, remove or dismiss him or her from that office and
appoint another Director in that place.
71.3 If a Managing or Executive Director ceases to be a
Director, his or her appointment as Managing or Executive
Director terminates automatically.
71.4 If a Managing or Executive Director is suspended from
office, he or she will not be entitled to attend or vote
at any meeting of Directors.
71.5 A Managing Director:
(a) is not subject to the retirement provisions
applicable to other Directors; and
(b) is subject to the same provisions as to resignation
and removal as the other Directors.
<PAGE>
72. MANAGING OR EXECUTIVE DIRECTOR - Powers
72.1 The Directors may confer on a Managing Director or
Executive Director any powers exercisable by the
Directors, subject to any terms and restrictions
determined by the Directors.
72.2 The Managing Director and other Executive Directors are
authorized to sub-delegate all or any of the powers vested
in them.
72.3 Any power conferred pursuant to this Article may be
concurrent with or to the exclusion of the Directors'
powers.
72.4 The Directors may at any time withdraw or vary any of the
powers conferred on a Managing Director or Executive
Director.
73. LOCAL MANAGEMENT - Local management
73.1 The Directors may provide for the management and
transaction of the affairs of the Company in any places
and in such manner as they think fit.
73.2 Without limiting Article 73.1 the Directors may:
(a) establish local boards or agencies for managing any
of the affairs of the Company in a specified place
and appoint any persons to be members of those local
boards or agencies; and
(b) delegate to any person appointed under paragraph
73.2(a) any of the powers, authorities and
discretions which may be exercised by the Directors
under these Articles,
on any terms and subject to any conditions determined by
the Directors.
73.3 The Directors may at any time revoke or vary any
delegation under this Article 73.
74. LOCAL MANAGEMENT - Appointment of attorneys and agents
74.1 The Directors may from time to time by resolution or power
of attorney under the Seal appoint any person to be the
attorney or agent of the Company:
(a) for the purposes;
(b) with the powers, authorities and discretions (not
exceeding those exercisable by the Directors under
these Articles);
(c) for the period; and
<PAGE>
(d) subject to the conditions,
determined by the Directors.
74.2 An appointment by the Directors of an attorney or agent of
the Company may be made in favor of:
(a) any member of any local board established under
these Articles;
(b) any company;
(c) the members, directors, nominees or managers of any
company or firm; or
(d) any fluctuating body of persons whether nominated
directly or indirectly by the Directors.
74.3 A power of attorney may contain such provisions for the
protection and convenience of persons dealing with an
attorney as the Directors think fit.
74.4 The Directors may appoint attorneys or agents by telex,
facsimile transmission, telegraph or cable to act for and
on behalf of the Company.
74.5 An attorney or agent appointed under this Article 74 may
be authorized by the Directors to sub-delegate all or any
of the powers authorities. and discretions for the time
being vested in it.
75. SECRETARY - Secretary
75.1 There must be at least one secretary of the Company
appointed by the Directors for a term and at remuneration
and on conditions determined by them.
75.2 The Secretary is entitled to attend and be heard on any
matter at all Directors' and general meetings.
75.3 The Directors may, subject to the terms of the Secretary's
employment contract, suspend, remove or dismiss the
Secretary.
76. SEALS - Common seal
76.1 The Directors must provide for the safe custody of the
Seal.
76.2 The Seal must not be used without the authority of the
Directors or a Directors' committee authorized to use the
Seal.
76.3 Every document to which the Seal is affixed must be signed
by a Director and be countersigned by another Director,
the Secretary or another person appointed by the Directors
to countersign the document.
<PAGE>
77. SEALS - Official seal
77.1 The Company may have one or more official seals for use
outside the State or Territory where the Seal is kept.
77.2 Each official seal must be a facsimile of the Seal with
the addition on its face of the name of every place where
it may be used.
77.3 An official seal must not be used except with the
authority of the Directors.
78. SEALS - Share seal
78.1 The Company may have a share seal which may be affixed to
share certificates.
78.2 The share seal must be a facsimile of the Seal with 'Share
Seal' or 'Certificate Seal' on its face.
79. INSPECTION OF RECORDS - Times for inspection
79.1 Except as otherwise required by the Corporations Law, the
Directors may determine whether and to what extent, and at
what times and places and under what conditions, the
accounting records and other documents of the Company or
any of them will be open for inspection by Members other
than Directors.
79.2 A Member other than a Director does not have the right to
inspect any accounting records or other documents of the
Company unless the Member is authorized to do so by a
court order or a resolution of the Directors.
80. DIVIDENDS AND RESERVES - Declaration of final dividend
80.1 The Directors may declare a dividend.
80.2 A dividend is payable:
(a) on the date fixed by the Directors' resolution
declaring it; or
(b) if the resolution did not fix a date, on the date
fixed by the Directors.
81. DIVIDENDS AND RESERVES - Interim dividend
The Directors may authorize the Company to pay an interim
dividend which is payable on the date fixed by the
Directors.
<PAGE>
82. DIVIDENDS AND RESERVES - Interest
The Company must not pay interest on any dividend.
83. DIVIDENDS AND RESERVES - Reserves
83.1 Before declaring a dividend, the Directors may set aside
out of profits an amount by way of reserves as they think
appropriate.
83.2 The Directors may apply the reserves for any purpose for
which profits may be properly applied.
83.3 Pending any application of the reserves, the Directors may
invest or use the reserves in the business of the Company
or in other investments as they think fit.
83.4 The Directors may carry forward any undistributed profits
without transferring them to a reserve.
84. DIVIDENDS AND RESERVES - Dividend entitlement
84.1 Subject to the rights of persons (if any) - entitled to
shares with special rights as to dividend, a dividend must
be declared and paid according to the amounts paid or
credited as paid on the shares in respect of which the
dividend is paid.
84.2 All dividends must be apportioned and paid proportionately
to the amounts paid or credited as paid on the shares
during any portion or portions of the period in respect of
which the dividend is paid, but, if a share is issued on
terms providing that it will rank for dividend as from a
particular date, that share ranks for dividend
accordingly.
84.3 An amount paid or credited as paid on a share in advance
of a call is not to be taken as paid or credited as paid
for the purposes of Articles 84.1 and 84.2.
84.4 A transfer of shares does not pass the right to any
dividend declared in respect of those shares before the
registration of a transfer.
85. DIVIDENDS AND RESERVES - Deductions from dividends
The Directors may deduct from a dividend payable to a
Member all sums presently payable by the Member to the
Company on account of calls or otherwise in relation to
shares in the Company.
86. DIVIDENDS AND RESERVES - Distribution of assets
86.1 On declaring a dividend, the Directors may resolve that
the dividend be paid wholly or partly by the distribution
<PAGE>
of specific assets, including fully paid shares in, or
debentures of, any other corporation.
86.2 The Directors, when authorizing the payment of an interim
dividend, may direct payment wholly or partly by the
distribution of specific assets, including fully paid
shares in, or debentures of, any other corporation.
86.3 If a difficulty arises in making a distribution of
specific assets, the Directors may:
(a) deal with the difficulty as they consider expedient;
(b) fix the value of all or any part of the specific
assets for the purposes of the distribution;
(c) determine that cash will be paid to any Members on
the basis of the fixed value in order to adjust the
rights of all the Members; and
(d) vest any such specific assets in trustees as the
Directors consider expedient.
86.4 If a distribution of specific assets to a particular
Member or Members is illegal or, in the Directors'
opinion, impracticable, the Directors may make a cash
payment to the Member or Members on the basis of the cash
amount of the dividend instead of the distribution of
specific assets.
87. DIVIDENDS AND RESERVES - Payment
87.1 Any dividend or other money payable in respect of shares
may be paid by check sent through the mail directed to:
(a) the address of the Member shown in the Register or
to the address of the joint holder of shares shown
first in the Register; or
(b) an address which the Member or joint holders has in
writing notified the Company as the address to which
dividends should be sent.
87.2 Any joint holder may give an effectual receipt for any
dividend or other money paid in respect of shares held by
holders jointly.
88. DIVIDENDS AND RESERVES - Capitalization of profits
88.1 The Directors may resolve:
(a) to capitalize any sum, being the whole or part of
the amount for the time being standing to the credit
of any reserve account or the profit and loss
account or otherwise available for distribution to
Members; and
<PAGE>
(b) that the sum be applied, in any of the ways
mentioned in Article 88.2, for the benefit of
Members, or persons who have applied for shares, in
the proportions determined by the Company.
88.2 The ways in which a sum may be applied for the benefit of
Members under Article 88.1 are:
(a) in paying up any amounts unpaid on shares held or to
be held by Members;
(b) in paying up in full unissued shares or debentures
to be issued to Members as fully paid; or
(c) partly as mentioned in paragraph (a) and partly as
mentioned in paragraph (b).
88.3 To the extent necessary to adjust the rights of the
Members among themselves, the Directors may:
(a) issue fractional certificates or make cash payments
in cases where shares or debentures become issuable
in fractions; and
(b) authorize any person to make, on behalf of all the
Members entitled to a benefit on the capitalization,
an agreement with the Company providing for:
(i) the issue to them, credited as fully paid up,
of any such further shares or debentures; or
(ii) the payment by the Company on their behalf of
the amount or any part of the amount
remaining unpaid on their existing shares by
the application of their respective
proportions of the sum resolved to be
capitalized,
and any agreement made under the authority of paragraph
(b) is effective and binding on all the Members concerned.
89. NOTICES - Service of notices
89.1 Notice may be given by the Company to any person who is
entitled to notice under these Articles by:
(a) serving it on the person;
(b) sending it by post, telex or facsimile transmission
to the person at the person's address shown in the
Register or the address supplied by the person to
the Company for sending notices to the person; or
(c) if the notice is to a Member and the Member has no
registered address, posting it on a notice board at
the Office.
<PAGE>
89.2 A notice sent by post is taken to be served:
(a) by properly addressing, prepaying and posting a
letter containing the notice; and
(b) on the day after the day on which it was posted.
89.3 A notice sent by telex or facsimile transmission is taken
to be served:
(a) by properly addressing the telex or facsimile
transmission and transmitting it; and
(b) on the day after its despatch.
89.4 A notice posted on a notice board is taken to be served
24 hours after it is posted on the board.
89.5 A notice may be given by the Company to joint holders by
giving the notice to the joint holder whose name appears
first in the Register.
89.6 Every person who is entitled to a share by operation of
law and who is not registered as the holder of the share
is taken to receive any notice served in accordance with
this Article on the person from whom it derives its title.
89.7 A share certificate, cheque, warrant or other document may
be delivered by the Company either personally or by
sending it:
(a) in the case of a Member who does not have a
registered address in Australia, by airmail post;
and
(b) in any other case, by ordinary post,
and is at the risk of the addressee as soon as it is given
or posted.
89.8 A Member whose registered address is not in Australia may
specify in writing an address in Australia as the Member's
registered address within the meaning of this Article.
89.9 A certificate in writing signed by a Director, Secretary
or other officer of the Company that a document or its
envelope or wrapper was addressed and stamped and was
posted is conclusive evidence of posting.
89.10 Subject to the Corporations Law the signature to a written
notice given by the Company may be written or printed.
89.11 All notices sent by post outside Australia must be sent by
prepaid airmail post.
<PAGE>
90. NOTICES - persons entitled to notice
90.1 Notice of every general meeting must be given to:
(a) every Member;
(b) every Director and Alternate Director; and
(c) the Auditor.
90.2 No other person is entitled to receive notice of a general
meeting.
91. AUDIT AND ACCOUNTS - Company to keep accounts
91.1 The Directors must cause the Company to keep accounts of
the business of the Company in accordance with the
requirements of the Corporations Law.
91.2 The Directors must cause the accounts of the Company to be
audited in accordance with the requirements of the
Corporations Law.
92. WINDING UP
92.1 Nothing in this Article prejudices the rights of the
holders of shares issued on special terms and conditions.
92.2 If the Company is wound up, the liquidator may, with the
sanction of a special resolution of the Company:
(a) divide among the Members in kind all or any of the
Company's assets;
(b) for that purpose, determine how he or she will carry
out the division between the different classes of
Members,
but may not require a Member to accept any shares or other
securities in respect of which there is any liability.
92.3 The liquidator may, with the sanction of a special
resolution of the Company, vest all or any of the
Company's assets in a trustee on trusts determined by the
liquidator for the benefit of the contributories.
93. INDEMNITY BY COMPANY
93.1 To the extent permitted by law, the Company indemnifies
every person who is or has been an officer or auditor of
the Company against any liability:
(a) incurred by that person as such an officer or
auditor to another person other than the Company or
a related body corporate of the Company unless the
liability arises out of conduct involving a lack of
good faith; and
<PAGE>
(b) for costs and expenses incurred by the person as
such an officer or auditor:
(i) in defending proceedings, whether civil or
criminal, in which judgment is given in
favor of the person or in which the person
is acquitted; or
(ii) in connection with an application, in
relation to such proceedings, in which the
Court grants relief to the person under the
Law.
93.2 The Company may pay or agree to pay a premium in respect
of a contract insuring a person who is or has been an
officer or auditor of the Company against a liability:
(a) incurred by the person as such an officer or auditor
unless the liability arises out of conduct
involving:
(i) a wilful breach of duty in relation to the
Company; or
(ii) without limiting subparagraph (i), a
contravention of subsection 232(5) or (6) of
the Law; or
(b) for costs and expenses incurred by the person as
such an officer or auditor in defending proceedings,
whether civil or criminal and whatever their
outcome.
93.3 In this Article 99:
'indemnify' has the same meaning as in section 241 of the
Law;
'officer' means a Director, secretary or executive officer
of the Company; and
'pay' has the same meaning as in section 241A of the Law.
<PAGE>
SCHEDULE 1
FORM OF PROXY
RULE 1
I/We ............................................................
of ............................................................
am/are a Member of Solaris Power.
I/We appoint as my/our proxy.......................................
of ............................................................
or failing him or her ..........................................
of..............................................................
or failing him or her the chairperson of the general meeting of
the Company to be held on .................. 19.... at .... am/pm
to vote for me/us at that meeting and at any adjournment of it.
This form is to be used in accordance with the directions below.
Unless the proxy is directed, he or she may vote or abstain as he
or she thinks fit.
RESOLUTION FOR AGAINST ABSTAIN
____ ____ ____
| | | | | |
|____| |____| |____|
INSTRUCTIONS
1. To direct the proxy to cast all votes covered by this
instrument in a particular manner place a tick or a cross in
the relevant box.
2. To direct the proxy to cast some only of the votes covered
by this instrument in respect of an item of business in a
particular manner, place in the relevant box either the
number of votes to be cast in that manner on a poll or the
percentage of the total votes covered by this instrument to
be cast in that manner on a poll. This direction, if given,
is also an instruction to the proxy to vote according to the
proxy's discretion on a show of hands.
I/we understand that if I/we have not directed my/our proxy how
to vote, my/our proxy may vote or abstain from voting as he or
she thinks fit.
DATE
........................... ...........................
Signature of Member Signature of Member
<PAGE>
Exhibit B-148
AUSTRALIAN SECURITIES COMMISSION
ARTICLES OF ASSOCIATION
OF
EI AUSTRALIA SERVICES
PTY LTD A.C.N. 071 514 255
CORRS CHAMBERS WESTGARTH
SOLICITORS
600 BOURKE STREET
MELBOURNE
VICTORIA 3000
03 9672 3000<PAGE>
INDEX OF ARTICLES
SECTION & DESCRIPTION Page No.
INTERPRETATION
1 - 2 Meanings assigned to words
and expressions. 1 - 3
PROPRIETARY COMPANY
3 Restrictions conditional to a
Proprietary Company 3
EXEMPT PROPRIETARY COMPANY
4 Exempt status of Company 3 - 4
CAPITAL CLAUSE
5 Nominal capital and division of shares 4 - 7
SHARES
6 - 9 Conditions and rights of shares and
control thereof 7 - 8
10 Modification of rights 8 - 9
11 - 12 Share Certificates 9
13 - 17 Lien on Shares 9 - 10
18 - 27 Calls on Shares 10 - 12
28 - 30 Transfer of Shares 12 - 13
31 - 33 Transmission of Shares 13 - 14
34 - 42 Forfeiture of Shares 14 - 15
CONVERSION OF SHARES INTO STOCK
43 - 46 16
ALTERATION OF CAPITAL
47 - 54 Increases, consolidation and altering
rights to share capital 16 - 17
BORROWING POWERS
55 - 58 Directors borrowing authority on behalf
of Company 18
GENERAL MEETINGS
59 - 62 Requirements to hold annual general
meeting 18 - 19<PAGE>
63 - 74 Proceedings at general meetings 19 - 22
75 - 89 Votes of members 22 - 24
90 Deadlock: Meetings of Members or Directors24
91 - 92 Directors 25
93 Vacation of Office 25 - 26
94 - 95 Director's contracts 26 - 27
96 - 98 Managing and Governing Director 27
99 - 102 Powers of Directors 28 - 29
103 - 104 Minutes of Directors' meetings 29
105 - 112 Proceedings of Directors 29 - 31
113 Alternate Directors 31
BRANCH REGISTER
114 32
SECRETARY
115 32
THE SEAL
116 Signing and countersigning 32 - 33
DIVIDENDS AND RESERVE
117 - 127 33 - 35
ACCOUNTS
128 Proper accounts to be kept in
accordance with Law 35
CAPITALIZATION OF PROFITS
129 - 130 35
AUDITORS
131 36
NOTICES
132 - 136 Servicing of notices by Company 36 - 37
WINDING UP
137 - 138 38
INDEMNITY
139 - 140 Directors and officers indemnified
out of Company Funds 39<PAGE>
Corporations Law
A Company Limited by Shares
ARTICLES OF ASSOCIATION
of
EI AUSTRALIA SERVICES PTY. LTD.
INTERPRETATION
1 1.1 In these Articles unless there be something in the
subject or context inconsistent therewith the following
words and expressions shall have the several meanings
hereby assigned to them that is to say:
"Alternate Director" means any person who for the time
being holds office as an Alternate Director duly
appointed in accordance with Article 113
"The Act" shall mean the "Corporations Act 1990 of the
State or Territory of incorporation" or any statutory
modification amendment or re-enactment thereof for the
time being in force
"These Articles" shall mean these Articles of
Association as originally adopted or as from time to
time duly added to or amended
"The Company" shall mean the abovementioned Company
"Directors" and "Board" shall mean all or any number of
the Directors for the time being of the Company acting
in accordance with these Articles. In the event that
the Company has only a sole Director the word
"Directors" shall mean Director.
"Dividend" shall mean any dividend arising from the
division of the profits of the Company and shall
include "bonus"
"The Law" shall mean the "Corporations Law which
includes the Corporations Act 1989 of the Commonwealth
the Corporations (Victoria) Act 1990 and any other
enactment which applies to Corporations Law to another
State or Territory of the Commonwealth" or any
statutory modification amendment or re-enactment
thereof for the time being in force.
"Member" shall mean a registered holder of any share or
stock of the Company
1<PAGE>
"Office" or "Registered Office" shall mean the
registered office for the time being of the Company
"Paid" shall mean paid or credited as paid
"The Register" shall mean the register of members of
the Company required to be kept by Section 209 of the
Act
"Registered Holder" shall mean any person for the time
being registered in the Register as the holder of any
shares or stock of the Company
"The Seal" or "The Common Seal" shall mean the common
seal of the Company.
"The Secretary" shall mean and include the Secretary
and any assistant or acting Secretary and any other
person for the time being appointed to perform whether
alone or in addition to any other person or persons the
duties of a Secretary of the Company
"Signature" shall mean the impression of a mark by hand
facsimile mechanical electronic or other means which is
properly authorised by the person purported to have
signed the document
"Signed" shall mean the result of a signature produced
by any means defined above
"Special Resolution" shall have the meaning assigned to
that expression by Section 253 of the Act
"Subsidiary" means any company or corporation which for
the time being is deemed to be a subsidiary of the
Company in accordance with Section 46 of the Act
"In writing" and "written" shall include printing and
lithography and other modes of reproducing or
representing words in a visible form
Words or expressions contained in these regulations
shall be interpreted in accordance with the provisions
of the Law as in force at the date at which such
interpretation is required.
1.2 In these Articles unless a different intention shall
appear:
(A) words importing the singular number only shall
include the plural number and vice versa and
2<PAGE>
(B) words importing the masculine gender only shall
include the feminine gender and
(C) words importing persons shall include companies
and corporations.
1.3 Any heading or marginal notes inserted in these
Articles are included for convenience only and shall
not affect the construction thereof.
2. The regulations contained in Table "A" (Schedule 1 of the
Act) shall not apply to the Company except insofar as they
are repeated or contained in these Articles.
PROPRIETARY COMPANY
3. The Company is a Proprietary Company and accordingly:
3.1 The right to transfer shares in the Company is
restricted as hereinafter provided.
3.2 The number of members of the Company (counting joint
holders of shares as one person and not counting any
person in the employment of the Company or of its
subsidiary was and thereafter has continued to be a
member of the Company) shall not exceed fifty.
3.3 Any invitation to the public to subscribe for and any
offer to the public to accept subscriptions for, any
shares in or debentures of the Company is hereby
prohibited.
3.4 Any invitation to the public to deposit money with and
any offer to the public to accept deposits of money
with the Company for fixed periods or payable at call
whether bearing or not bearing interest is hereby
prohibited.
EXEMPT PROPRIETARY COMPANY
4. 4.1 The Directors may as a condition precedent to the
registration of any person as the holder of a share
require that person and in the case of a transfer of
that share the transferor or both to furnish them with
any information supported (if the Directors so require)
by a Statutory Declaration which they may consider
necessary to enable them to determine whether or not
such registration will result in the Company ceasing to
be an exempt proprietary company within the meaning of
the Law and if the Directors shall be of the opinion
that as a result of any such registration the status of
the Company as an exempt proprietary company may or
will be imperilled they may decline to register such
person in respect of such share.
3<PAGE>
4.2 The Directors may at any time require any person whose
name is entered in the Register to furnish them with
any information supported (if the Directors so require)
by a Statutory Declaration which they may consider
necessary for the purpose of determining whether or not
the Company is an exempt proprietary company within the
meaning of the Law.
4.3 If the Directors consider that by reason of the holding
of any share by any person the Company is no longer an
exempt proprietary company they may give notice to such
person in writing calling upon him to take such steps
as shall in their opinion be necessary to ensure the
status of the Company as an exempt proprietary company
provided that if any such notice is not complied with
within three months of the date on which it is given
the Directors may authorise some other person to take
the steps required by such notice so far as may be
necessary to execute a valid transfer of the share to
some person nominated by them at a price equivalent to
the fair market value of the share at that time as
determined by the Company's Auditors. In making any
such determinations the Auditors shall act as experts
and not as arbitrators. The purchaser of any share
under this power shall not be concerned to see to the
application of the purchase money nor shall his title
to the share be affected by any irregularity or
invalidity in the proceedings in reference to the sale.
4.4 If any requirement of paragraph 4.2 or paragraph 4.3 of
this Article is not complied with the Directors may
withhold all dividends or other payments due or
becoming due to the holder (either alone or jointly
with any other person) of the share in respect of which
the requisition or notice as aforesaid is given.
4.5 A requisition or notice referred to in this Article may
include several shares and in such case shall operate
as if it were a separate notice or requisition in
respect of each share so included.
CAPITAL
5. The capital of the Company is Ten Million Dollars
($10,000,000) divided into Ten Million (10,000,000) shares
of various values classified as below
9,499,999 Ordinary Shares of $1.00 each
100,000 "A" Class Shares of $1.00 each
100,000 "B" Class Shares of $1.00 each
100,000 "C" Class Shares of $1.00 each
100,000 "D" Class Shares of $1.00 each
100,000 "E" Class Shares of $1.00 each
2 Subscriber Share of $1.00 each
4<PAGE>
5.1 The Subscriber shares shall be a redeemable preference
share which shall only be issued on the following
terms:
(A) Subscriber's shares shall only be issued upon
incorporation of the Company and shall only be
issued to the Subscriber to the Memorandum and
Articles of Association
(B) Subject to the Law the next issue of shares of any
class or classes after the issue of the Subscriber
share and payment in full thereof shall be deemed
to have been issued for the purposes of redeeming
the Subscriber share provided that the value of
the shares so issued is at least equal to the
value of the Subscriber share on issue. Upon the
issue of such shares the Subscriber share shall
ipso facto be redeemed at par and the issued
Capital of the Company shall then stand at an
amount equal to the par value of the total number
of shares which comprised the next issue of
shares.
(C) Subscriber's shares shall entitle the holder to
receive dividends and to receive notice of
meetings and shall confer on any holder thereof
when present in person or by proxy or by attorney
at any general meeting of the Company the right to
cast one (1) vote upon a show of hands and upon a
poll one vote for each share held.
(D) Upon the redemption of the Subscriber share the
authorised number of Ordinary shares shall
increase by such number of Ordinary shares as is
equal to the number of Subscriber shares redeemed.
5.2 The said Ordinary "A" and "B" class shares shall
entitle the holder or holders thereof to receive
dividends and to receive notice of meetings and shall
confer upon any holder thereof when present in person
or by proxy or by attorney at any general meeting of
the Company the right to cast one (1) vote upon a show
of hands and upon a poll to cast one (1) vote for each
share held.
5.3 (A) The said "C" and "D" class shares shall carry no
voting rights whatsoever.
(B) The said "C", and "D" class shares shall confer on
the holder the right to payment of such non-
cumulative dividends as the Directors of the
Company may from time to time recommend and as the
Company may pursuant to these articles declare.
5<PAGE>
5.4 (A) The said "E" class shares shall be redeemable
preference shares and shall carry no voting rights
whatsoever.
(B) The said "E" class shares shall confer on the
holder the right to payment of such non-cumulative
dividends as the Directors of the Company may from
time to time recommend and as the Company may
pursuant to these articles declare.
(C) Upon reduction of capital or winding up of the
Company the said "E" class shares shall as regards
return of capital rank in priority to all other
shares of the Company but shall not carry the
right to any further participation in the surplus
profits or assets of the Company.
(D) Subject to the provisions of the Law the Company
reserves the right at any time or from time to
time to redeem at par such of the said redeemable
preference shares as it may from time to time
determine provided that any such redemption shall
be effected prior to the 30th June 2050. Any such
redemption shall be effected by notice in writing
to the holders of the shares to be redeemed at
their respective registered addresses and each
notice shall be accompanied by the Company's
cheque or by bank draft or money order for the
amount payable to the holder to whom the notice is
sent. Any redeemable preference shares not
redeemed prior to 30th June 2050 shall not
thereafter be redeemable.
5.5 Where at any time there shall be more than one (1)
class of shares on issue any dividend or distribution
of capitalised profits may be declared by the Company
in general meeting and as the Directors from time to
time recommend.
5.6 All dividends whether interim or otherwise may be paid
and any distribution of capitalised profits made on the
shares of any one or more class or classes of shares to
the exclusion of the shares of any other class or
classes.
5.7 If at any meeting dividends are declared or
distributions made on more than one (1) class of shares
the dividend declared or distribution made on the
shares of any such class may be at a higher lower or at
the same rate as the dividend declared or distribution
made on the shares of the other or others of such
classes provided that the shares in each case shall
inter se participate pari passu in any dividend
6<PAGE>
declared or any distribution made of capitalised
profits in respect of that class.
5.8 There shall be no objection to any resolution which
(A) declares a higher rate of dividend or distribution
of the shares of any class or classes than the
dividend declared or distribution made on the
shares of any other class or classes: or
(B) declares a dividend or makes a distribution for
the shares of any class or classes to the
exclusion of the shares of any other class or
classes that such resolution was passed by the
holder of the shares of the class or classes to
receive the higher rate of dividend or
distribution as the case may be and that such
resolution was opposed by the holders of the
shares of the class or classes to receive the
lower rate of dividend or distribution or to be
excluded from receiving a dividend or distribution
as the case may be.
SHARES
6. 6.1 Subject to the provisions of these Articles and without
prejudice to any special rights previously conferred on
the holders of any shares or class of shares and save
as provided by any contract with the Company 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 at such times and either
at a premium or at par or (subject to the provisions of
Section 190 of the Act) at a discount and with such
preferred deferred or other special rights restrictions
or exclusions whether in regard to dividend voting
return of capital or otherwise and as belonging to the
same class or to different classes as the Directors may
determine with full power to give to any person the
call of any shares either at par or at a premium and
for such time and for such consideration as the
Directors think fit.
6.2 The Company shall have power to issue preference shares
which are or at the option of the Company are to be
liable to be redeemed and subject to the provisions of
Section 192 of the Act the Directors may exercise such
power in any manner they may think fit.
7. 7.1 Where any shares of the Company are issued for the
purpose of raising money to defray the expenses of the
construction of any works or buildings or the provision
7<PAGE>
of any plant which cannot be made profitable for a long
period the Company may subject to the approval of the
Court as required by Section 204 of the Act and to the
conditions and restrictions mentioned in the said
Section pay interest on so much of that share capital
as is for the time being paid up and may charge any sum
so paid by way of interest to capital as part of the
cost of construction of the work or buildings or the
provision of plant as the case may be.
7.2 The Company shall not give whether directly or
indirectly and whether by means of a loan guarantee the
provision of security the release of an obligation the
forgiving of a debt or otherwise any financial
assistance for the purpose of or in connection with the
acquisition or proposed acquisition by any person of
shares or units of shares in the Company or in a
holding company (if any) of the Company nor shall the
Company in any way directly or indirectly acquire
shares or units of shares in the Company or purport to
acquire shares or units of shares in a holding Company
of the Company or lend money on the security of its own
shares or units of shares or shares or units of shares
in a holding Company of the Company but nothing in this
Article shall prohibit or prevent any such transactions
as are mentioned in Section 205 of the Act nor shall
prejudicially affect the power of the Company to
enforce repayment of any loans made to members of the
Company or to exercise any lien arising by virtue of
Article 13.
8. Without prejudice to the right of the Company and/or any
person to do any of the things mentioned in Section 213 of
the Act and except as by some competent Court order or as
otherwise by law required no person shall be recognized by
the Company as holding any share upon any trust and the
Company shall not be bound by or compelled in any way to
recognize (even when having notice thereof) any equitable
contingent future or partial interest in any share or any
interest in any fractional part of a share or any other
rights in respect of any share except an absolute right to
the entirety thereof in the registered holder.
9. The Directors shall ensure that the Company keeps a register
giving with respect to each Director of the Company the
information required by Section 235 of the Act.
MODIFICATION OF RIGHTS
10. If at any time the share capital is 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 whether or not the Company is being wound up
8<PAGE>
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 Articles relating to General Meetings of the Company
shall mutatis mutandis apply but so that the necessary
quorum shall be two persons at least holding or representing
by proxy one-third of the issued shares of the class and so
that if at any adjourned meeting of such holders a quorum as
above defined is not present such of those holders as are
present shall be a quorum and further so that any holder of
shares of the class present in person or by proxy may
demand a poll and on a poll shall have one vote for each
share of that class held by him.
SHARE CERTIFICATES
11. Every person whose name is entered as a member of the
Company in the Register shall be entitled without payment to
receive a certificate under the common seal or (in the case
of a certificate relating to a share or shares on a branch
register) under the common seal or an official seal of the
Company in accordance with the Law but 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 delivery
of a certificate for a share to any one of several joint
holders shall be sufficient delivery to all such holders.
12. If a certificate or any other document of title to shares is
lost defaced or destroyed a duplicate certificate or other
document in lieu thereof shall be issued by the Company upon
and subject to the conditions set out in the Law on
application by the registered holder of the share or shares
represented by the certificate or other document of title so
lost defaced or destroyed or alternatively on application by
any other person who at the relevant time is the owner of
such certificate or other document of title.
LIEN ON SHARES
13. The Company shall have a first and paramount lien on every
share registered in the name of a member (whether solely or
jointly with others) for all moneys (whether presently
payable or not) due by him or his estate whether alone or
jointly with any other person to the Company. The Company's
lien on a share shall extend to all dividends payable
thereon.
14. The Directors may at any time declare any share to be wholly
or in part and conditionally or otherwise exempt from any
lien which has arisen or may arise in favour of the Company.
9<PAGE>
Unless otherwise agreed the registration of a transfer of a
share shall operate as a waiver of the Company's lien if any
on such share.
15. The Directors may sell in such manner as they think fit any
share on which the Company has a lien but no sale shall be
made unless a sum in respect of which the lien exists is
presently payable nor until the expiration of fourteen days
after 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 person
entitled thereto by reason of his death or bankruptcy.
16. To give effect to any sale for enforcing a lien in purported
exercise of the powers hereinbefore conferred the Directors
may appoint some person to execute an instrument of transfer
of the shares sold and may cause the purchaser's name to be
entered in the register in respect of such shares. The
purchaser shall not be bound to see to the application of
the purchase money or to the regularity of the proceedings
in relating to the sale and his title to the shares shall
not be affected by any irregularity or invalidity in such
proceedings and after the purchaser's 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.
17. The net proceeds of any such sale after deduction of the
costs of the sale shall be applied in or towards the payment
of such part of the amount (including all interest) in
respect of which the Company's lien exists as is presently
payable and the residue if any shall (subject to the lien
for sums not presently payable as existed upon the shares
before the sale) be paid to the person who at the date of
sale was the registered holder of the shares or to his legal
personal representative.
CALLS ON SHARES
18. The Directors may from time to time make such calls as they
shall think fit upon the members in respect of any moneys
unpaid on the shares held by them respectively (whether on
account of the nominal value of the shares or by way of
premium) but no such call shall be made either in respect of
any moneys which are by the conditions of allotment of such
shares made payable at fixed times or otherwise contrary to
such conditions of allotment and each member shall pay the
amount of every call so made on him to the persons and at
the times and place specified by the Directors. A call may
be made payable in instalments.
10<PAGE>
19. If by the terms of issue of any share or otherwise any
amount is made payable to the Company at any fixed time or
by instalments whether on account of the amount of the share
or by way or premium every such amount or instalment shall
be payable as if it were a call duly made by the Directors
of which due notice had been given and all the provisions of
these Articles in respect of calls payment of interest and
expenses forfeiture or otherwise shall apply to such amount
or instalment accordingly.
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. The Directors may on the issue of shares differentiate
between such shares or between the holders thereof as to the
amount of calls to be paid and the time of payment of such
calls.
22. The joint holders of a share shall be severally as well as
jointly liable for the payment of all installments and calls
due in respect of such shares.
23. Fourteen days notice of every call shall be given specifying
the time and place of payment and to whom such call shall be
paid PROVIDED THAT before the time for payment of such call
the Directors may by notice in writing to the members revoke
the same or extend the time for payment thereof.
24. If the sum payable in respect of any call or instalment be
not paid on or before the day appointed for the payment
thereof the person from whom the sum is due shall be liable
to pay interest on the sum at such rate not exceeding twenty
dollars per centum per annum as the Directors shall
determine from the day appointed for the payment thereof to
the day of actual payment but the Directors may waive the
payment of interest wholly or in part.
25. 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 in the Register
as the holder or one of the holders of the shares in respect
of which such debt accrued AND that the resolution making
the call is duly recorded in the minute book AND that notice
of such call in pursuance of these Articles was duly given
to the member sued AND it shall not be necessary to prove
the appointment of the Directors who made such call or any
other matters whatsoever but the proof of the matters
aforesaid shall be conclusive evidence of the debt.
26. The Directors may if they think fit receive from any member
willing to advance the same all or any part of the money
unpaid upon the shares held by him beyond the sums actually
11<PAGE>
called up thereon. Upon the moneys so paid in advance or on
so much thereof as from time to time exceeds the amount of
the calls then made the Company may pay or allow interest at
such rate as may be agreed upon between the Directors and
the members paying any such sum in advance but any amount
for the time being paid in advance of calls shall not be
included or taken into account in ascertaining the amount of
any dividend payable upon the shares in respect of which
such advance has been made. The Directors may at any time
repay the amount so advanced upon giving to such member one
month's notice in writing.
27. No member shall be entitled in respect of any of the shares
in the Company held by him whether alone or jointly with any
other person to receive any dividend or to be present or to
vote on any question either personally or by proxy at any
general meeting or upon a poll or to be counted in a quorum
whilst any part of a call or other sum shall be due and
payable to the Company in respect of any of such shares.
TRANSFER OF SHARES
28. 28.1 Subject to these Articles a member may transfer all or
any of his shares by instrument in writing in any usual
or common form or in any other form that the Directors
approve.
28.2 An instrument of transfer referred to in sub-article
28.1 shall be executed by or on behalf of both the
transferor and the transferee.
28.3 Atransferor of shares remains the holder of the shares
transferred until the transfer is registered and the
name of the transferee is entered in the register of
members in respect of the shares.
29. 29.1 The instrument of transfer must be left for
registration at the registered office of the Company
together with such fee (if any) not exceeding $1.00 as
the Directors require accompanied by the certificate of
the shares to which it relates and such other
information as the Directors properly require to show
the right of the transferor to make the transfer and
thereupon the Company shall subject to the powers
vested in the Directors by these regulations register
the transferee as a shareholder.
29.2 Before the directors authorise the transfer of any
share or shares those shares must have been offered to
all other shareholders at a price which represents a
fair market price for a period of 21 days. In the
event of a dispute concerning what constitutes a fair
market price the President of the Institute of Valuers
12<PAGE>
(or his equivalent at the time of the dispute) shall be
asked to arbitrate and his decision shall be final.
30. The registration of transfers may be suspended at such times
and for such periods as the Directors from time to time
determine not exceeding in the whole 30 days in any year.
TRANSMISSION OF SHARES
31. In the case of the death of a member the survivor or
survivors where the deceased was a joint holder and the
legal personal representatives of the deceased where he was
a sole holder shall be the only persons recognised by the
Company as having any title to his interest in the shares
but this Article does not release the estate of a deceased
joint holder from any liability in respect of a share that
had been jointly held by him with other persons.
32. 32.1 Subject to the Bankruptcy Act 1966 a person becoming
entitled to a share in consequence of the death or
bankruptcy of a member may upon such information being
produced as is properly required by the Directors elect
either to be registered himself as holder of the share
or to have some other person nominated by him
registered as the transferee of the share.
32.2 If the person becoming entitled elects to be registered
himself he shall deliver or send to the Company a
notice in writing signed by him stating that he so
elects.
32.3 If he elects to have another person registered he shall
execute a transfer of the share to that other person.
32.4 All the limitations restrictions and provisions of
these Articles relating to the right to transfer and
the registration of transferof shares are applicable to
any such notice or transfer as if thedeath or
bankruptcy of the member had not occurred and the
noticeor transfer were a transfer signed by that
member.
33. 33.1 Where the registered holder of a share dies or becomes
bankrupt his personal representative or the trustee of
his estate as thecase may be is upon the production of
such information as isproperly required by the
Directors entitled to the same dividends and other
advantages and to the same rights (whether in relation
to meetings of the Company or to voting or otherwise)
as the registered holder would have been entitled to if
he had not died or become bankrupt.
13<PAGE>
33.2 Where two or more persons are jointly entitled to any
share in consequence of the death of the registered
holder they shall for the purpose of these regulations
be deemed to be joint holders of the share.
FORFEITURE OF SHARES
34. If any member fails to pay any call or instalment of a call
by the day appointed for the payment thereof the Directors
may at any time thereafter while any part of the call or
instalment remains unpaid serve a notice on such member
requiring him to pay the same together with any interest
that may have accrued and all expenses that may have been
incurred by the Company by reason of such non-payment.
35. The notice shall name a further day (not earlier than the
expiration of fourteen days from the date of service of such
notice) and a place or places on and at which such call or
instalment and such interest and expenses as aforesaid (if
any) are to be paid. The notice shall also state that in
the event of non-payment at or before the time and at the
place appointed the share in respect of which the call was
made or the instalment or other money is payable will be
liable to be forfeited.
36. If the requirements of any such notice as aforesaid are not
complied with any share in respect of which such notice has
been given may at any time thereafter before payment of all
calls or instalments and interest and expenses (if any) 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 share and
not actually paid before the forfeiture.
37. When any share shall have been so forfeited notice of the
forfeiture shall be given to the holder of the share or the
person entitled thereto by transmission immediately prior to
the forfeiture and an entry of the forfeiture with the date
thereof shall forthwith be made in the register but the
failure to give such notice or to make such entry shall not
in any way invalidate the forfeiture.
38. Any share so forfeited shall be deemed to be the property of
the Company and the Directors may sell re-allot and
otherwise dispose of the same in such manner and in such
terms as they think fit.
39. The Directors may at any time before any share so forfeited
shall have been sold re-allotted or otherwise disposed of
annul the forfeiture thereof upon such terms and conditions
as they think fit. In the event of any share so forfeited
being sold re-allotted or otherwise disposed of within
14<PAGE>
twelve months of the date of forfeiture thereof any residue
of moneys remaining after satisfaction of the unpaid calls
or instalments accrued interest and expenses shall be paid
to the person whose share shall have been forfeited or to
his legal personal representative.
40. A person whose share has been forfeited shall
notwithstanding such forfeiture be liable to pay and shall
forthwith pay to the Company all calls instalments interest
and expenses owing and presently payable upon or in respect
of and not paid on such share at the time of forfeiture
together with interest thereon at the rate of twenty dollars
($20.00) per centum per annum from the date of the
forfeiture to the date of payment in the same manner in all
respects as if the share had not been forfeited without any
deduction or allowance for the value of the share at the
time of forfeiture AND the Directors may enforce the payment
of such moneys or any part thereof if they think fit but
shall not be under any obligation so to do. Such liability
of any such person shall cease if and when the Company shall
have received payment in full of all such moneys in respect
of the share so forfeited.
41. A statement in writing declaring that the person making the
statement is a Director or Secretary of the Company or is a
person duly authorized by the Directors to make such a
statement and that a share in the Company has been duly
forfeited on a date stated in the declaration and has been
sold re-allotted or otherwise disposed of in accordance with
the Articles of the Company shall as against all persons
claiming to be entitled to the share be prima facie evidence
given for the share on any sale re-allotment or other
disposition thereof and may (in an appropriate case) execute
or appoint a person to execute a transfer of the share in
favour of the person to whom the share is sold re-allotted
or otherwise disposed of and such person shall thereupon be
registered as the holder of the share which shall thereupon
be deemed to be free and discharged from all calls
instalments interest and expenses due and owing to the
Company in respect thereof prior to such purchase re-
allotment or other disposition and such person 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 relating to
the forfeiture or the sale re-allotment or other disposition
of the share.
42. The provisions of these Articles as to forfeiture shall
apply in the case of non-payment of any sum which by the
terms of issue of a share becomes payable at a fixed time
whether on account of the nominal value of the share or by
way of premium as if the same had been payable by virtue of
a call duly made and notified.
15<PAGE>
CONVERSION OF SHARES INTO STOCK
43. The Company by resolution may convert any paid up shares
into stock and re-convert any stock into paid up shares of
any denomination.
44. The holders of stock may transfer the same or any part
thereof in the same manner and subject to the same
regulations as and subject to which conditions the shares
from which the stock arose might previously 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
the transfer of fractions of that minimum but the minimum
shall not exceed the nominal amount of the shares from which
the stock arose.
45. 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 and in the assets on winding up) shall be conferred
by any such aliquot part of stock which would not if
existing in shares have conferred that privilege or
advantage.
46. 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 "stockholder".
ALTERATION OF CAPITAL
47. The Company may from time to time by resolution:
47.1 increase the share capital by such sum to be divided
into shares of such amount as the resolution shall
prescribe and
47.2 consolidate and divide all or any of its share capital
into shares of larger or smaller amount than its
existing shares.
48. Without prejudice to any special rights or privileges
attached to any then existing shares of the Company the new
shares shall be issued upon such terms and conditions and
with such rights and privileges annexed thereto as the
General Meeting resolving upon the creation thereof shall
direct and insofar as no direction be given as the Directors
shall determine and in particular such new shares may be
issued with a preferential or qualified right to dividends
and in the distribution of the assets of the Company and
with a special or without any right of voting.
16<PAGE>
49. The Company in General Meeting may by special resolution
before the issue of any new shares determine that such
shares or any of them be offered in the first instance
either at par or at a premium to all the existing holders of
any one or more classes of shares in proportion to the
amount of capital held by them respectively or make any
other provisions as to the issue and allotment of the new
shares but in default of any such determination or insofar
as the same shall not extend the new shares may be dealt
with as if they formed part of the shares comprising the
original capital.
50. Except as otherwise provided by the conditions of issue or
by these Articles any capital raised by the creation of new
shares shall be subject to the same provisions with
reference to allotment the payment of calls and instalments
transfer and transmission forfeiture lien surrender and
otherwise as the shares in the original share capital.
Unless it is otherwise determined in accordance with these
Articles the new shares shall be ordinary shares.
51. The Company may from time to time by resolution subdivide
its shares or any of them into shares of a smaller amount so
however that in the subdivision the proportion between the
amount paid and the amount (if any) unpaid on each
subdivided share shall be the same as it was in the case of
the share from which the subdivided share is derived.
52. The 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 others or
other.
53. The Company may by resolution 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 or which
have been forfeited and may diminish the amount of its share
capital by the amount of the shares so cancelled and the
Directors may on behalf of the Company accept surrenders of
shares in any case in which it is lawful for the Company so
to do.
54. The Company may from time to time by special resolution
subject to the provisions of the Law and to the provisions
of Article 10 reduce its capital and any capital redemption
reserve fund or any share premium account by paying off
capital or cancelling capital which has been lost or is
unrepresented by available assets or reducing the liability
on the shares or otherwise as may seem expedient and the
capital may be paid off upon the footing that it may be
called up again or otherwise.
17<PAGE>
BORROWING POWERS
55. The Directors may from time to time at their discretion
borrow with or without giving security therefore any sum or
sums of money for the purposes of the Company.
56. The Directors may raise or secure the repayment of such sum
or sums in such manner and upon such terms and conditions in
all respects as they think fit in particular by the issue of
notes bills (whether bank guaranteed or otherwise) bonds
perpetual or redeemable debentures or debenture stock or any
mortgage charge or other security on the undertaking or the
whole or any part of the property of the Company (both
present and future) including its uncalled capital for the
time being. Debentures debenture stock bonds notes or other
securities may be made assignable free from any equities
between the Company and the person to whom the same may be
issued. Any debentures debenture stock bonds notes 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.
57. If the Directors or any of them or any other person shall
become personally liable for the payment of any sum
primarily due from the Company the Directors may execute or
cause to be executed any mortgage charge or security over or
affecting the whole or any part of the assets of the Company
by way of indemnity to secure the Directors or persons so
becoming liable as aforesaid from any loss in respect of
such liability.
58. The Directors shall cause a proper register to be kept in
accordance with the Act of all charges specifically
affecting the property of the Company and shall duly comply
with the requirements of Division 2 of Part 3.5 of the Act
in regard to the registration of charges.
GENERAL MEETINGS
59. The Company shall in each calendar year hold a General
Meeting as its Annual General Meeting within five months or
if an exempt proprietary company within six months after the
end of its financial year in addition to any other meetings
in that year and sahll specify the meeting as such in the
notices calling it PROVIDED THAT the Company may hold its
first Annual General Meeting within eighteen months after
its incorporation but the Company shall hold such meeting
within five months or if an exempt proprietary company
within six months after the end of its financial year. An
Annual General meeting shall be held at such time and place
as shall be determined by the Directors and indicated in the
18<PAGE>
notice calling it. The Company shall be deem to have held
an Annual General Meeting if it has held a General Meeting
with complies with Section 245 of the Act.
60. Every General Meeting shall be specified as such in the
notices calling it.
61. The Directors may whenever they think fit convene a General
Meeting and General Meetings shall also in accordance with
the provisions of Section 251 of the Act be convened on such
requisition or in default may be convened by such
requisitionists as provided by the said Section.
61.1 Subject to the provisions of Section 253 of the Act
relating to special resolutions and to paragraph 61.2
herein fourteen days' notice at the least of any
General Meeting (exclusive of the day on which the
notice is served or deemed to be served but inclusive
of the day for which the notice is given) specifying
the place day and hour of meeting and in the case of
special business the general nature of such business
shall be given in the manner hereinafter mentioned to
the members or such persons as are entitled under these
Articles to receive notices from the Company.
61.2 With the consent of all the members entitled to attend
and vote thereat in the case of an Annual General
Meeting or in the case of any other General Meeting
with the consent of a majority in number of the members
having the right to attend and vote thereat being a
majority which together holds not less than ninety-five
per centum in nominal value of the shares giving the
right to so attend and vote such Meeting may be
convened on less than fourteen days' notice. Consent
by any one of several joint holders of share shall be
deemed to be consent by all holders of that share.
62. The accidental omission to give notice of any meeting to or
the non-receipt of any notice by any member shall not
invalidate the proceedings at any such meeting or any
resolution passed thereat.
PROCEEDINGS AT GENERAL MEETINGS
63. The business of an Annual General Meeting shall be to
receive and consider the profit and loss account the balance
sheet and the reports of the Directors and of the Auditors
and the Statement of the Directors to elect Directors and
Auditors in place of those retiring and to declare dividends
and to transact any other business which under these
Articles and the Law ought to be transacted at an Annual
General Meeting. All other business transacted at an Annual
General Meeting and all business transacted at a General
Meeting shall be deemed special business.
19<PAGE>
64. No business shall be transacted at any General Meeting
unless the quorum requisite be present at the commencement
of that business. A quorum shall be two persons personally
present or present by proxy.
65. If within fifteen minutes from the time appointed for the
meeting a quorum is not present the meeting if convened upon
the requisition of members 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 or to such other day
time and place as the Directors may by notice to the members
appoint. If at such adjourned meeting a quorum is not
present within fifteen minutes from the time appointed for
the meeting the meeting shall be dissolved.
66. The Chairman of Directors or in his absence the Deputy
Chairman if any shall preside at every General Meeting. If
there be no Chairman or Deputy Chairman of Directors or if
at any meeting he or they shall not be present within
fifteen minutes after the time appointed for holding such
meeting or being present shall be unwilling to act as
Chairman of the meeting the Directors present shall choose a
Chairman and in default of their doing so the members
present shall choose one of the Directors present to be
Chairman of the meeting or if no Director be then present or
if all the Directors then present decline to take the chair
the members personally present shall choose one of their
number to be Chairman of the meeting.
67. The Chairman of a General Meeting 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. If any meeting or adjourned meeting of the
Company shall be adjourned for more than fourteen days
notice of such adjournment shall be given to the members in
the same manner in which the notice is directed to be given
to members in respect of the original meeting but it shall
not be necessary to specify in such notice the nature of the
business to be transacted at such adjourned meeting. Save
as aforesaid it shall not be necessary to give any notice of
an adjournment or of the business to be transacted at any
adjourned meeting.
68. At any General Meeting a resolution put to the vote of the
meeting shall be decided on a show of hands unless a poll is
(before or on the declaration of the result of the show of
hands) demanded:
68.1 By the Chairman of the Meeting.
20<PAGE>
68.2 By any member or members present in person or by proxy
and representing not less than one-tenth of the total
voting rights of all the members having the right to
vote at the meeting or
68.3 By a member or members holding shares in the Company
conferring a right to vote at the meeting being shares
on which an aggregate sum has been paid up equal to not
less than one-tenth of the total sum paid up on all the
shares conferring that right. Unless a poll is so
demanded a declaration by the Chairman of the Meeting
that a resolution has on a show of hands been carried
or carried unanimously or by a particular majority or
lost or not carried by a particular majority and an
entry to that effect in the book containing the minutes
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 favour of or
against the resolution.
69. Except as provided in Article 71 if a poll is duly demanded
it shall be taken in such manner and at such time (within
fourteen days) and place as the Chairman of the Meeting
directs and the result of the poll shall be deemed to be the
resolution of the meeting at which the poll was demanded. No
notice need be given of a poll not taken immediately.
70. The demand for a poll shall not prevent the continuance of a
meeting for the transaction of any business other than the
question for which a poll has been demanded. The demand for
a poll may be withdrawn.
71. No poll shall be demanded on the election of a Chairman of a
meeting. A poll demanded on a question of adjournment shall
be taken at the meeting and without adjournment.
72. 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 not be entitled to a second or casting vote.
73. Subject to the provisions of the Law a resolution signed by
all the members of the Company for the time being entitled
to vote shall be as valid and effectual as if it had been
passed at a duly convened and constituted General Meeting of
the Company. A resolution shall have effect pursuant to
this Article notwithstanding that the members entitled to
vote sign separate copies of the resolution.
74. In accordance with Section 249 of the Act 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 General
21<PAGE>
Meeting of the Company or of 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. When such a
representative of a corporation is present at a meeting of
the Company and is a person not otherwise entitled to be
present at such meeting the corporation which he represents
shall for the purpose of these Articles be deemed to be
personally present at the meeting.
VOTES OF MEMBERS
75. A member shall be entitled to be present and to vote on any
question either personally or by proxy or as proxy for any
other member at any General Meeting or upon a poll or on any
resolution passed in accordance with Article 73 and to be
reckoned in a quorum in respect of any fully paid up share
and any shares upon which all calls or instalments due and
payable to the Company shall have been paid but subject to
any contrary provision of these Articles and to the
conditions of issue of any share not otherwise.
76. Subject to the other provisions of these Articles on a show
of hands every member personally present or present by proxy
or by virtue of Article 74 deemed to be personally present
shall have one vote and upon a poll every member present in
person or by proxy or attorney or being a corporation by a
representative duly appointed pursuant to the said Article
74 shall have one vote for every share held by him.
77. On a poll a member entitled to more than one vote need not
if he votes use all his votes or cast all the votes he uses
in the same way.
78. Where there are joint holders of any share the vote of the
senior of them who tenders a vote whether in person or by
proxy shall be accepted to the exclusion of the votes of the
other joint holders of such share AND for this purpose
seniority shall be determined by the order in which the
names of such joint holders stand in the Register of
members.
79. Any person entitled to a share in consequence of the death
or bankruptcy of a member may attend and vote at any General
Meeting in respect thereof in the same manner as if he were
the registered holder of such share 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 shall satisfy the Directors of his right to
transfer such share or the Directors shall have previously
admitted his right to vote at such meeting in respect
thereof.
22<PAGE>
80. A member who is of unsound mind or whose person or estate is
liable to be dealt with in any way under the law relating to
mental health may vote whether on a show of hands or on a
poll by his committee or by his trustee or by such other
person as properly has the management of his estate and any
such committee trustee or other person may vote by proxy or
attorney.
81. No member shall be entitled to vote at any General Meeting
unless all calls or other sums presently payable by him in
respect of any shares in the Company have been paid.
82. No objection shall be raised to the qualification of any
voter or otherwise to the validity of any vote except at the
meeting or adjourned meeting at which the vote objected to
is given or tendered and every vote not disallowed at such
meeting shall be valid for all purposes. Any such objection
made in due time shall be referred to the Chairman of the
meeting whose decision shall be final and conclusive.
83. On a poll votes may be given personally or by proxy or
attorney or in the case of a corporation by a representative
duly authorized in accordance with Article 74.
84. 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 the appointer is a corporation either under
its seal or under the hand of an officer or attorney duly
authorized. A Proxy need not be a member of the Company.
Every notice convening a meeting of the Company shall note
that a member entitled to attend and vote is entitled to
appoint one or more proxies to attend and vote instead of
him.
85. 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 shall
be deposited at the registered office of the Company or at
such other place as is specified for that purpose in the
notice convening the meeting not less than forty-eight hours
before the time for holding the meeting or adjourned meeting
at which the person named in the instrument proposes to vote
or in the case of a poll not less than twenty-four hours
before the time appointed for the taking of the poll and in
default the instrument of proxy shall not be treated as
valid. No instrument of proxy shall be valid after the
expiration of twelve months from the date of its execution
except at an adjourned meeting or on a poll demanded at a
meeting or adjourned meeting in case where the meeting was
originally held within twelve months from that date.
23<PAGE>
86. An instrument appointing a proxy shall be in the following
form or a form as near thereto as circumstances permit:
_________________________________________________________________
.................................................................
................................................Ltd./Limited*
I/We of
being a member/members of the above-named Company hereby
appoint of
or
failing him of as
my/our proxy to vote for me/us on my/our behalf at the
(annual 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 .
This form is to be used *in favour of the resolution
against
*Strike out whichever is not desired.
________________________________________________________________
87. The instrument appointing a proxy shall be deemed to confer
authority to demand or join in demanding a poll.
88. Any member may by power of attorney duly executed in the
presence of one witness at least appoint an attorney to act
on his behalf at all or any meeting of the Company and such
power of attorney or a properly certified copy thereof shall
at least forty-eight hours before the time for holding the
meeting be deposited with the Secretary at the office
together with such evidence (if any) of the due execution
thereof and the non-revocation thereof as the Directors may
require.
89. A vote at a general meeting in accordance with the terms of
an instrument of proxy or a power of attorney shall be valid
notwithstanding the previous death of the principal or
revocation of the proxy or power of attorney or transfer of
the share in respect of which the vote is given provided no
intimation in writing of the death revocation or transfer
shall have been received at the office before the meeting.
DEADLOCK: MEETINGS OF MEMBERS OR DIRECTORS
90. If upon a poll there is an equality of votes for and against
any motion the Chairman shall be not entitled to any second
or casting vote.
24<PAGE>
DIRECTORS
91. The number of Directors shall not be less than the minimum
specified by the Law nor more than twenty (20) provided that
the Company may from time to time by resolution increase or
reduce the number of Directors but shall not reduce the
minimum number of Directors to below the minimum number
specified by the Law.
92. 92.1 The first Directors of the Company shall be
appointed by the subscribers to the Memorandum and
Articles of Association.
92.2 The Company in General Meeting may by resolution
appoint any person as a Director either to fill a
casual vacancy or as an addition to the number of
Directors but so that the total number of Directors
shall not at any time exceed the maximum number (if
any) fixed in accordance with these Articles.
92.3 The Directors shall have power at any time and from
time to time to appoint any other person as a
Director either to fill a casual vacancy or as an
addition to the Board but so that the total number
of Directors shall not at any time exceed the
maximum number (if any) fixed in accordance with
these Articles.
92.4 Unless otherwise determined by the Company in
General Meeting there shall be no shareholding
requirement for a Director.
92.5 All the Directors of the Company shall be natural
persons.
92.6 The Company in General Meeting may at any time by
resolution remove any Director from office.
VACATION OF OFFICE
93. In addition to the circumstances in which the office of a
Director becomes vacant by virtue of the Law or by virtue of
any order made under the Law the office of a Director shall
ipso facto be vacated:
93. 1 If he becomes bankrupt or insolvent or suspends
payment or compounds with his creditors
93.2 If he be convicted of an indictable offence
93.3 If he becomes of unsound mind or a person whose
person or estate is liable to be dealt with in any
way under any law relating to mental health
25<PAGE>
93.4 If by notice in writing to the Company he resigns
his office.
PROVIDED THAT no proceedings of the Board shall be
invalidated by reason of any Director taking part or
concurring therein being the disqualified.
DIRECTOR'S CONTRACTS
94. No Director shall be disqualified by his office from holding
any office or place of profit (except that of Auditor) under
the Company or under any corporation in which this Company
shall be a shareholder or which is a member of this Company
or otherwise interested or from contracting with the Company
either as vendor purchaser or otherwise nor shall any such
contract or any contract or arrangement entered into by or
on behalf of the Company in which any Director shall be in
any way interested be avoided nor shall any Director be
liable to account to the Company for any profit arising from
any such office or place of profit or realized by any such
contract or arrangement by reason only of such Director
holding that office or of the fiduciary relationship thereby
established but the nature of his interest must be declared
by him in accordance with the provisions of the Law. A
Director may be counted in a quorum and may vote in respect
of any contract or arrangement in which he is interested. A
general notice that a Director is a member of any specified
firm or corporation and is to be regarded as interested in
all transactions with that firm or corporation shall be a
sufficient declaration under this Article as regards such
Director and the said transactions and after such general
notice it shall not be necessary for such Director to give
any special notice relating to any particular transaction
with that firm or corporation. It shall be the duty of the
Secretary to record in the Minutes any declaration made or
any general notice as aforesaid given by Director in
pursuance of this Article.
95. A Director of the Company may be or become a Director or
other officer of or otherwise interested in any corporation
promoted by the Company or which is a subsidiary or parent
of the Company or in which the Company may be interested in
any way whatsoever and no such Director shall be accountable
to the Company for any remuneration or other benefits
received by him as a Director or officer of or from his
interest in such corporation unless the Company otherwise
directs.
The Directors may exercise the voting power conferred by the
shares in any such other corporation held or owned by the
Company or exercisable by them as Directors of such other
corporation in such manner in all respects as they think fit
(including the exercise thereof in favor of any resolution
26<PAGE>
appointing themselves or any of the Directors or other
officers of such corporation) and any Director may vote in
favour of the exercise of such voting rights in manner
aforesaid notwithstanding that he may be or be about to be
appointed a Director or other officer of such corporation
and as such is or may become interested in the exercise of
such voting rights in manner aforesaid.
MANAGING AND GOVERNING DIRECTOR
96. 96.1 The Directors may from time to time appoint one or
more of their body to the office of Managing
Director for such period and on such terms as they
think fit and subject to the terms of any contract
between him and the Company may revoke such
appointment. The appointment of a Managing Director
shall be automatically determined if he cease from
any cause to be a Director.
96.2 The remuneration of a Managing Director and of any
other executive Director shall subject to any
resolution of a General Meeting from time to time be
fixed by the Directors and may be by way of a fixed
salary or of commission on dividends profits or
turnover of the Company or of any corporation in
which the Company is interested or by participation
in any such profits or by way of pension or retiring
allowance or by any or all of those modes.
96.3 The Directors may from time to time entrust to and
confer upon a Managing Director any of the powers
exercisable by them upon such terms and conditions
and with such restrictions as they thin fit and from
time to time revoke withdraw alter or vary all or
any of such powers.
GOVERNING DIRECTOR
97. 97.1 the Members may from time to time appoint one or
more of their body to the office of Governing
Director for such period and on such terms as they
think fit and subject to the terms of any contract
between him and the Company. The appointment of a
Governing Director shall be automatically determined
only if he ceases from any cause to be a Director.
97.2 Whilst there is a Governing Director he shall have
the management and control of the Company and all
the powers authorities and discretions vested in
Directors generally and he may exercise all such
powers and do all such acts and things as may be
exercised or done by the Company except any which by
law are required to be exercised or done in general
27<PAGE>
meeting and all other Directors of the Company shall
be bound to conform with his directions. A vote of
the Directors shall not be valid unless the
Governing Director votes in the affirmative.
98. Without prejudice to the generality of the preceding clause
the Governing Director may appoint any person to be a
Director and may remove that person from office as a
Director but so that the total number of directors shall not
at any time exceed the number fixed in accordance with these
Articles.
POWERS OF DIRECTORS
99. The business of the Company shall be managed by the
Directors who may pay all expenses incurred in promoting and
registering the Company and may exercise all such powers of
the Company as are not by the Law or by these Articles
required to be exercised by the Company in General Meeting
subject nevertheless to any of these Articles and to the
provisions of the Law and also to such regulations (not
being inconsistent with the aforesaid Articles or
provisions) as may be prescribed by the Company in General
Meeting; but no such 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. The general powers given by this Article
shall not be limited or restricted by any special authority
or power given to the Directors by any other Article.
100. Without prejudice to the generality of Article 99 the
Directors may exercise all of the powers of the Company
in respect of borrowing money and securing the repayment
thereof and related matters whether such powers are
derived from these Articles from the Memorandum of
Association of the Company or from any other source.
101. Directors may from time to time by power of attorney
appoint any corporation firm or person or body of
persons fluctuating or otherwise 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 discretions (not
exceeding those vested in or exercisable by the
Directors under these Articles) and for any such period
and 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 think fit and
may also authorize any such attorney to delegate all or
an of the powers authorities and discretions vested in
him.
28<PAGE>
102. All cheques promissory notes drafts bills of exchange
and other negotiable instruments and all receipts for
moneys paid to the Company shall be signed drawn
accepted endorsed or otherwise executed as the case may
be in such manner as the Directors shall from time to
time by resolution determine.
MINUTES
103. The Directors shall cause Minutes to be duly entered in
books provide for the purpose:
103.1 of the names of the Directors present at each
meeting of the Board and of any committee of
Directors
103.2 of all appointments of officers made by the Board
103.3 of all resolutions and proceedings of all meetings
of the Company of the Directors and of committees of
Directors.
104. The Directors shall cause the minutes of every meeting
of the Board or of the Company to be signed by the
Chairman of such meeting or by the Chairman of a
succeeding meeting and if purporting to be so signed all
such minutes shall be evidence of the proceedings to
which such minutes
PROCEEDINGS OF DIRECTOR
105. The Directors may meet together for the despatch of
business adjourn and otherwise regulate their meetings
as they think fit. Questions arising at any meeting
shall be determined by a majority of votes. Each
Director present at a meeting (or if he is absent his
alternate Director if any) and competent to vote shall
have one vote. A Director who is an Alternate Director
for one or more of the other Directors may in addition
to giving his own vote at a Meeting of the Directors
give one vote on behalf of each other Director whom he
represents as an Alternate Director at the meeting and
who is not personally present. Director may and the
Secretary shall at the request of any Director at an
time summon a meeting of the Directors.
106. The quorum necessary for the transaction of the business
of the Directors may be fixed from time to time by the
Directors and unless so fixed shall be two. An
Alternate Director shall be counted in a quorum at a
meeting at which the Director appointing him is not
present and a Director or Alternate Director interested
in any business of the meeting may be counted in a
29<PAGE>
quorum notwithstanding his interest but a quorum shall
not be constituted solely by a Director who is also an
Alternate Director for one or more other Directors.
107. A meeting of the Directors at which a quorum is present
shall be competent to exercise all or any of the
authorities powers and discretions by or under these
Articles for the time being vested in or exercisable by
the Directors generally.
108. The Directors may elect any one of their number to be
Chairman of their meetings and may determine the period
for which he is to hold office. If no Chairman is
elected or if at any meeting the Chairman is not present
within fifteen minutes of the time appointed for holding
the same and willing to act the Directors present shall
choose some one of their number to be Chairman of such
meeting.
109. The Directors may delegate any of their powers to
committees consisting of such member or members of their
body as they think fit. Any committee so formed shall
in the exercise of the powers so delegated conform to an
regulations that may be imposed on it by the Directors.
Save as aforesaid the meetings and proceedings of a
committee consisting of more than one person shall be
governed by the provisions of these Articles regulating
the proceedings and meetings of Directors.
110. 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 shall afterwards
be discovered that there was some defect in the
appointment or continuance in office of any such
Directors or person acting as aforesaid or that they or
any of them were disqualified or had vacated office or
were not entitled to vote be as valid as if every such
person had been duly appointed or had duly continued in
office and was qualified and had continued to be a
Director and had been entitled to be a Director.
111. 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
these Articles as the necessary quorum of Directors the
continuing Directors or Director may act for the purpose
of increasing the number of Directors to that number or
of summoning a General Meeting of the Company and for
no other purpose.
112. 112. 1 A resolution in writing signed by a majority of
the directors for the time being permitted to
vote in respect of that resolution if such
30<PAGE>
resolution had otherwise been proposed and put
to a vote at a meeting of such number of
directors as would constitute a quorum for the
time being of a meeting of Directors shall be
valid and effectual as if it had been passed at
a meeting of the Directors duly convened and
held as at the date on which the resolution was
signed and at the time at which the document was
last signed by a Director or if the Directors
signed the document on different days on the day
on which AND at the time at which the document
was last signed by a Director AND it shall not
be necessary to give notice of such proposed
resolutions in writing to any Director. Any
such resolution in writing may consist of one
or more separate documents containing statements
in identical terms each of which is signed by
one or more Directors and which shall together
be deemed to constitute one document containing
a statement in those terms signed by those
Directors on the respective days on which they
signed the separate documents and any such
resolution shall be deemed to be in writing and
signed by a Director or Directors if a cable
telegram facsimile telex or other form of
visible or electronic communication is received
by the Secretary with the name of the Director
or Directors appearing thereon signifying
his/their approval to that resolution.
112. 2 Without limiting the discretion of the Directors
to regulate their meetings the Directors may if
they think fit confer by radio telephone
television other electronic or optical means of
audio or audio-visual communication and a
resolution passed by such a conference shall
notwithstanding that the Directors are not
present together in one place at the time of the
conference be deemed to have been passed at a
meeting of the Directors held on the day on
which and at the time at which the conference
was held. The provisions of these Articles
regulating the proceedings of Directors apply so
far as they are capable of application to such a
conference.
ALTERNATE DIRECTORS
113. Each Director shall have power from time to time to
appoint any person approved for that purpose by the
majority of the other Directors to be an Alternate
Director in his place during such times and from time to
time as he shall appoint and shall have power at his
31<PAGE>
discretion to remove such Alternate Director. An
Alternate Director may act in the place of the Director
who appointed him and shall be entitled to notice of
every meeting of the Directors as if he were a Director
and may attend any such meeting and except while the
Director who appointed him is also present vote thereat
as a Director (without prejudice to his right to vote on
his own account if he is himself a Director) and shall
exercise and discharge all the rights powers and duties
of the Director he represents including the power hereby
granted for the appointment of an Alternate Director and
shall be subject in all respects to the conditions
existing with reference to the other Directors except
that he shall not be required to hold qualification
shares (if any) and shall not be entitled to be
remunerated otherwise than out of the remuneration of
the Director who appointed him.
In respect of such remuneration (if any) the rights of
the Alternate Director shall be against the Director who
appointed him only and not against the Company. An
Alternate Director shall be an officer of the Company
and shall not be deemed to be the agent of the Director
appointing him. If any Director who has for the time
being an Alternate Director shall cease to be a Director
the Alternate Director shall thereupon cease to be a
Director. Any appointment or removal of an Alternate
Director may be made by notice in writing delivered (by
means including the ordinary postal services) to the
registered office of the Company or to the Secretary
personally and shall take effect upon and from the time
of such notice being so delivered.
BRANCH REGISTER
114. The Directors may exercise all the powers of the Company
in relation to any official seal for use whether inside
or outside the Commonwealth of Australia and in relation
to Branch Registers.
SECRETARY
115. The Secretary of the Company shall be appointed by the
Directors. The Directors may at any time appoint a
person as an additional Secretary or as Acting Secretary
or as a temporary substitute for the Secretary who shall
for the purposes of these Articles be deemed to be and
may be referred to as the Secretary.
THE SEAL
116. The Directors shall provide a Common Seal for the
Company and shall provide for the safe custody of that
32<PAGE>
Seal which shall only be used by the authority of the
Directors or of a committee of the Directors authorised
by the Directors to authorise the use of the Seal
previously given and in the presence of one Director
at the least who shall sign every instrument to which
the seal is affixed and every such instrument shall be
counter-signed by another Director or the Secretary or
some other person appointed by the Directors except in
the case that there is only one Director who is also
Secretary. In which event that sole Director/Secretary
shall sign every instrument to which the seal is affixed
and shall state in writing that he/she is the sole
Director and sole Secretary of the company. A Director
may affix the Seal to or sign any instrument as
aforesaid notwithstanding he may be in any way
interested in the transaction.
DIVIDENDS AND RESERVE
117. The Directors may from time to time declare such
dividends as they may think fit and may fix the time for
payment thereof.
118. No dividend shall be payable except out of the profits
of the Company and no dividend shall carry interest as
against the Company.
119. The declaration of the Directors as to the amount of the
net profits of the Company shall be conclusive.
120. The Directors may before declaring any dividend set
aside out of the profits of the Company such sums as
they think proper as a reserve or reserve fund to meet
the contingencies or for equalizing dividends or for
special dividends or for repairing improving and
maintaining any property of the Company or for such
other purposes as the Directors shall in their absolute
discretion think conducive to the interests of the
Company and may invest the several sums to set aside
upon such investments (other than shares of the Company)
as they may think fit and from time to time deal with
and vary such investments and dispose of all or any part
thereof for the benefit of the Company and may divide
the reserve or reserve fund into such special funds as
they think fit and employ the reserve or reserve fund or
any part thereof in the business of the Company.
121. Subject to the provisions of these Articles and without
prejudice to the rights of the holders of shares with
special rights (if any):
33<PAGE>
121.1 The Directors may from time to time declare and
pay to the holders of any class or classes of
shares such interim dividends as they think fit
and such interim dividends may be paid out of
current profits of the then financial year or
out of any other profits as the Directors in
their absolute discretion shall think fit and
declare.
121.2 Final dividends may be declared and paid out of
any profits of the Company.
121.3 Interim and final dividends may be determined
declared and paid in respect of one or more
classes of shares to the exclusion of the others
or other.
122. Subject to and without prejudice to the foregoing
provisions of these Articles the profits of the Company
shall be divisible amongst the members or any class of
members according to the amounts paid up on the shares
held by them.
123. The Directors may retain any dividend or other moneys
payable on or in respect of a share 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.
124. The Directors when declaring a dividend may make a call
on the members of such amount as they determine but so
that the call on each member shall not exceed the
dividend payable to him and so that the call be made
payable at the same time as the dividend. The dividend
may if so arranged between the Board and the member be
set off against the call.
125. With the sanction of a General Meeting any dividend may
be paid wholly or in part by the distribution of
specific assets and in particular of paid-up shares or
debentures of any corporation or in any one or more of
such ways. Where any difficulty arises in regard to
such distribution the Directors may settle the same as
they think expedient and in particular may issue
fractional certificates and fix the value for
distribution of such specific assets or any part thereof
and may determine that cash payments shall be made to
any members upon the footing of the value so fixed in
order to adjust the rights of all members and may vest
any such specific assets in trustees upon trust for the
members entitled to the dividend as may seem expedient
to the Directors.
34<PAGE>
126. Any dividend interest or other moneys payable in cash in
respect of shares may be paid by cheque or warrant sent
through the post directed to the registered address of
the holder or in the case of joint holders to the
registered address of that one of the joint holders who
is first named on the Register (of members) or to such
person and to such address as the holder or joint
holders may in writing direct. Every such cheque or
warrant shall be made payable to the order of the person
to whom it is sent. Any one of two or more joint holders
may give effectual receipts for any dividends bonuses or
other moneys payable in respect of the shares held by
them as joint holders.
127. 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
and the Company shall not be constituted a trustee in
respect thereof PROVIDED HOWEVER that the Company shall
comply with any applicable Statute relating to Unclaimed
Moneys.
ACCOUNTS
128. The Directors shall cause proper accounting and other
records to be kept and shall distribute copies of
balance sheets profit and loss accounts reports and
other documents as required by the Law and shall from
time to time determine whether and to what extent and at
what times and places and under what conditions or
regulations the accounting and other records 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 paper of the Company except as
conferred by Statute or authorised by the Directors or
by the Company in General Meeting.
CAPITALISATION OF PROFITS
129. The Directors may resolve that it is desirable to
capitalise any part of the amount for the time being
standing to the credit of any of the Company's reserve
accounts or to the credit of the profit and loss account
or otherwise available for distribution (and not
required for the payment or provision of the fixed
dividend on any shares entitled to fixed preferential
dividends) and accordingly that such sums be set free
for distribution amongst the members who would have been
entitled thereto if distributed by way of dividend and
in the same proportions on condition that the same be
not paid in cash but be applied either in or towards
paying up any amounts for the time being unpaid on any
35<PAGE>
shares or debentures of the Company to be allotted and
distributed credited as fully paid up to and amongst
such members in the proportion aforesaid or partly in
the one way and partly in the other and the Directors
shall give effect to such resolution PROVIDED THAT a
share premium account and a capital redemption reserve
fund may for the purposes of this Article only be
applied in the paying up of unissued shares to be issued
to members of the Company as fully paid bonus shares.
130. Whenever such a resolution as is mentioned in Article
129 shall have been passed the Directors shall make all
appropriations and applications of the undivided profits
resolved to be capitalised thereby and all allotments
and issues of fully-paid shares or debentures if any and
generally shall do all acts and things required to give
effect thereto with full power to the Directors to make
such provisions by the issue of fractional certificates
or by payment in cash or otherwise as they think fit for
the case of shares or debentures becoming distributable
in fractions and also to authorise any person to enter
on behalf of all members entitled thereto into an
agreement with the Company providing for the allotment
to them respectively credited as fully paid up of any
further shares (or debentures) to which they may be
entitled upon such capitalisation (or as the case may
require for the payment up by the Company on their
behalf by the application thereto of their respective
proportions of the profits resolved to be capitalised of
the amount or any part of the amounts remaining unpaid
in their existing shares) and any agreement made under
such authority shall be effective and binding on all
such members.
AUDITORS
131. Subject to the provisions of Section 326 of the Act
Auditors shall be appointed and their appointment
removal and duties shall be regulated in accordance with
of Part 3.7 of the Act.
NOTICES
132. 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 to the address if any 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 affected 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 on the day after the date of its posting and in
any other case at the time at which the letter would be
delivered in the ordinary course of post.
36<PAGE>
133. Any notice by a court of law or otherwise required or
allowed to be given by the Company to the members or any
of them by advertisement shall be sufficiently
advertised if advertised once in one daily newspaper
circulating in the State or Territory capital city and
metropolitan area of such city in any State or Territory
in which at least one member has a registered address.
134. A notice may be given by the Company to the joint
holders of a share by giving the notice to the joint
holder first named on the register in respect of the
share.
135. Any notice or document sent by post to or left at the
registered address of any member in pursuance of these
Articles shall notwithstanding such member be then
deceased or bankrupt and whether or not the Company has
notice of his decease or bankruptcy be deemed to have
been duly served in respect of any shares whether held
solely or jointly with other persons by such member
until some other person be registered in his stead as
the holder or joint holder thereof and such service
shall for all purposes be deemed a sufficient service of
such notice or document on all persons interested
(whether jointly with or as claiming through or under
him) in any such share.
136. 136.1 Notice of every General Meeting shall be given
in any manner hereinbefore authorised to:
(A) every member except those members who
have not supplied to the Company an
address for the giving of notices to
them
(B) every person entitled to a share in
consequence of the death or bankruptcy
of a member who but for his death or
bankruptcy would be entitled to receive
notice of the meeting
(C) the Directors of the Company
(D) the Auditor or Auditors for the time
being of the Company.
136.2 No other person shall be entitled to receive
notice of General Meetings.
37<PAGE>
WINDING UP
137. If the Company shall be wound up and the assets
available for distribution among the members as such
shall be insufficient to repay the whole of the paid-up
capital such assets shall be distributed so that as
nearly as may be the losses shall be borne by the
members in proportion to the capital paid up or which
ought to have been paid up on the shares held by them
respectively at the commencement of the winding up. If
in a winding up the assets available for distribution
among the members shall be more than sufficient to repay
the whole of the capital paid up at the commencement of
the winding up the excess shall be distributed amongst
the members in proportion to the capital at the
commencement of the winding up paid up or which ought to
have been paid up on the shares held by them
respectively but this Article is to be without prejudice
to the rights of the holders of shares issued upon
special terms and conditions.
138. If the Company be wound up whether voluntarily or
otherwise the liquidator may with the sanction of a
Special Resolution divide among the contributories in
specie or kind any part of the assets of the Company and
may with the like sanction vest any part of the assets
of the Company in trustees upon such trusts for the
benefit of the contributories or any of them as the
liquidator with the like sanction shall think fit. If
thought expedient any such division may be otherwise
than in accordance with the legal rights of the
contributories (except where unalterably fixed by the
Memorandum of Association) and in particular any class
may be given preferential or special rights or may be
excluded altogether or in part BUT in case any division
otherwise than in accordance with the legal rights of
the contributories shall be determined any contributory
who would be prejudiced thereby shall have a right to
dissent and ancillary rights as if such determination
were a Special Resolution passed pursuant to Section 507
of the Act. If any shares to be divided as aforesaid
involve a liability to calls or otherwise any person
entitled under such division to any of the said shares
may within ten days after the passing of the first
mentioned Special Resolution by notice in writing direct
the liquidator to sell his proportion and pay him the
net proceeds and the liquidator shall if practicable act
accordingly.
38<PAGE>
INDEMNITY
139. Subject to the provisions of Section 241 of the Act
every Director manager or officer of the Company or any
person (whether an officer of the Company or not)
employed by the Company as Auditor shall be indemnified
out of the funds of the Company against all liability
incurred by him as such Director manager officer or
Auditor in defending any proceedings whether civil or
criminal in which judgement is given in his favour or in
which he is acquitted or in connection with any
application under Section 241 of the Act in which relief
is granted to him by the Court.
140. Subject to the Law no Director Auditor 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 or on behalf
of the Company or for the insufficiency or deficiency of
any security in or upon which any of the moneys of the
Company shall be 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
shall be deposited or for any loss occasioned by any
error of judgement omission default or oversight on his
part or for any other loss damage or misfortune whatever
which shall happen in relation thereto unless the same
happen through his own negligence default breach of duty
or breach of trust.
WE the several persons whose names are subscribed being the
subscribers to the Memorandum of Association hereby agree to the
foregoing Articles of Association:
Witness to the above signature:
39<PAGE>
Exhibit B-160
OFFICIAL TRANSLATION No. 1908 of the attached document "PUBLIC
DEED NO. 1198 OF THE SOLE NOTARY OF SOLEDAD - raising to Public
Deed Minutes No. 002, 003 OF TERMOBARRANQUILLA S.A. "TEBSA",
written in Spanish, made by Vivien Campo de Visbal, Certified
Translator by virtue of Resolution No. 1700 (April 28/83) of the
Colombian Ministry of Justice.<PAGE>
REPUBLIC OF COLOMBIA
SOLE NOTARY OF SOLEDAD
Third
COPY of Public Deed No. 1.198 of February 24, 1995, raising to
public deed Minutes No. 002, 003 of TERMOBARRANQUILLA S.A.
"TEBSA"
JOSE MANUEL HERRERA I.
President of the
Association of Notaries
of the Coast<PAGE>
JOSE M. HERRERA IRANZO - SOLE NOTARY OF THE CIRCLE OF SOLEDAD
AB 10510
RAISING TO PUBLIC DEED MINUTES NO. 002 AND 003 OF
TERMOBARRANQUILLA S.A. "TEBSA" - NUMBER: 1198
In the municipality of Soledad, of the circle of Soledad,
Department of Atlantico, Republic of Colombia, on the twenty
fourth (24) day of February nineteen hundred and ninety five
(1995) before me, JOSE MANUEL HERRERA IRANZO --- sole Notary
Public and Principal of the circle of Soledad appeared HUMBERTO
JIMENEZ TRIVINO, of age, with domicile in the city of Santafe de
Bogota and identified as stated below his signature, of which I
certify and he stated: FIRST: that he is currently the
president of the company with domicile in Barranquilla, called
"TERMOBARRANQUILLA S.A." Empresa de Servicios Publicos" TEBSA
S.A. (E.S.P.) incorporated by public deed No. 9994 dated October
14, 1994, granted by the Sole Notary of Soledad, as evidenced by
the certificate of the Chamber of Commerce of Barranquilla which
is delivered to the undersigned Notary to be part of this
instrument. That in the above mentioned position and complying
with legal and statutory provisions he appears in order to raise
to a public deed the minutes of the GENERAL SHAREHOLDERS ASSEMBLY
MEETINGS OF TERMOBARRANQUILLA S.A. EMPRESA DE SERVICIOS PUBLICOS
number 002 and 003 dated December 16, 1994 and February 15, 1995
with the following contents:
OF THE GENERAL SHAREHOLDER'S ASSEMBLY OF TERMOBARRANQUILLA S.A.
(EMPRESA DE SERVICIOS PUBLICOS)
In the city of Barranquilla, on the 16th day of December nineteen
hundred ninety four (1994) at 11:00 a.m. at Carrera 55 No.
77-109, Piso 9, the shareholders of the company TERMOBARRANQUILLA
S.A. (Empresa de Servicios Publicos) met after written notice
made by the President of the company on December 5, 1994 which
was delivered to each one of the shareholders according to the
terms and conditions set forth in Articles 31 and 32 of its
corporate by-laws and which was also published in El Heraldo
newspaper of December 5, 1994 in accordance with the provisions
of the above mentioned Article 31 of the corporate by-laws. The
Agenda foreseen in the notice was developed as follows: 1.
APPOINTMENT OF CHAIRMAN AND SECRETARY OF THE MEETING: The
attendants, with the positive vote of 1.634.000 shares, appointed
Mr. LUIS CARLOS NEIRA MEJIA as Chairman of the meeting and Mrs.
PATRICIA MOLINARES DE GARCIA as Secretary. 2. VERIFICATION OF
POWER OF ATTORNEY. Next, the Secretary stated to the Assembly
that the following powers of attorney were received: From ABB
Energy Ventures Inc. in favor of Mr. Robert Henry in English and
it was submitted with its official translation into Spanish ;
From ABB Power Generation Ltd. in favor of Mr. Robert Henry;
from Distral Termica C.A. (EMA) granted to Mr. Pedro Parejo; From
Lancaster Steel Ltd. Granted to Mr. Pascual del Vecchio; From
Energy Initiatives, Inc. granted to Mr. Luis Carlos Neira Mejia. <PAGE>
Said powers of attorney were duly revised by the President and
Secretary and the attendants and were found sufficient and
according to Colombian law. 3. TAKING ATTENDANCE AND
VERIFICATION OF QUORUM. The Chairman requested the Secretary to
take attendance with the following result: Corporacion Electrica
de la Costa Atlantica, CORELCA, represented by its General
Director Dr. Enrique Javier Pacheco, with 582.521 shares ABB
Energy Ventures Inc. represented by Robert Henry, with Special
Power of Attorney with 404.252 shares ABB Power Generation Ltd.,
represented by Robert Henry, with Special Power of Attorney, with
6.340 shares Distral S.A. (EMA), represented by its Executive
Secretary, Mr. Luis Fernando Sarmiento with 63.072 shares;
Distral Termica C.A. EMA, represented by Pedro Parejo, with
Special Power of Attorney with 63.072 shares; Lancaster Steel Co.
Inc., represented by Pascual del Vecchio with Special Power of
Attorney, with 84.151 shares; Energy Initiatives, Inc.,
represented by Luis Carlos Neira Mejia, with Special Power of
Attorney, with 420.592 shares. Total shares represented
1.634.000 shares. Due to the fact that all subscribed shares
were represented and that the meeting was duly convened in
accordance with the corporate by-laws, the Chairman declared the
Assembly legally installed in an extraordinary meeting. Besides
the shareholders' representatives, the President of the Company,
Mr. HUMBERTO JIMENEZ TRIVINO, as well as Messrs/Ms MARCOS
HORMIGA, EDGARDO SOJO, ANA MARGARITA FERNANDEZ, ALFONSO MARTINEZ
and EDUARDO DONCELL were also present. 4. APPLICATION OF THE
TRANSITORY CLAUSE OF CORPORATE BY-LAWS Mr. HUMBERTO JIMENEZ,
President of the company, informed about the main purpose of this
Assembly meeting which is to determine if TERMOBARRANQUILLA S.A.
(Empresa de Servicios Publicos), taking into consideration that
the financial closing stated in the Transitory Article of the
corporate by-laws is not going to take place on or before next
December 20, it shall be declared as dissolved or liquidated or,
if on the contrary, the shareholders desire to extend the term
for said financial closing and continue being partners. He
stated then that, as it is known by the shareholders,
negotiations with international banks have continued taken place
actively, having obtained on December 6 the approval of OPIC to
participate in the financing, as stated in the letter dated
December 13, 1994, which was submitted to the Assembly.
Additionally, the Union of Swiss Banks (UBS) and Banque Paribas
and other financial institutions, they have also stated their
firm commitment to participate only subject to the compliance of
some requirements such as, among others, the approval from the
corresponding Board of Directors and the due diligence process.
Mr. ROBERT HENRY proposed to maintain the Transitory Article
modifying only the date of December 20, 1994 for April 30, 1995.
Mr. ENRIQUE JAVIER PACHECO stated that the extension could only
be made until February 20, 1995. Mr. HENRY stated that he accepts
the date of February 20, but he stated also that it is physically
and logistically improbable that financial closing will occur on
said date and he also stated that the consortium will do its best
so as to obtain a financial closing in a date close to February <PAGE>
20, but surely for that date there will be only sufficient
evidence of the bank commitments but not agreements executed.
After listening to the above, the Assembly with the favorable
vote of the 1.634.000 represented shares, decided to modify the
date of December 20, 1994 of the Transitory Article of the
corporate by-laws of TERMOBARRANQUILLA S.A. (Empresa de Servicios
Publicos) to read as follows: 'TRANSITORY ARTICLE: If on February
20, 1995 the corporation has not legalized the contracts for the
financing of the project on terms similar as that presented by
the series B shareholders in their offer to Corelca, unless 70%
of the subscribed shares vote otherwise in a General Assembly of
Shareholders, the company shall be declared dissolved and shall
enter into a period of liquidation. For purposes of the
liquidation, the designed Liquidator shall take into account the
following rules in complying with his duties: a) all assets that
Corelca may have contributed in kind shall be returned to Corelca
as total and only payment for its participation in the
liquidation; b) the remainder, once the external liabilities of
the company are paid, shall be distributed exclusively between
the Series B shareholders, in proportion to their contribution,
as total and only payment for their participation in the
liquidation. The rules stated above shall not be applied, and
thus the provisions of article 63 of these by-laws will apply, if
the inability to legalize the financial documents is due to any
of the following: a) Corelca does not obtain the guaranty
required for the execution of the project on terms that are
acceptable to the financial parties; b) the dissolution results
from an order from a competent authority. The Assembly reminded
the President of the company about his obligation to constitute
in a public deed the amendment to the by-laws as well as to
register it before the Chamber of Commerce of the corporate
domicile. 5. ELECTION OF BOARD OF DIRECTORS. The President of
the company informed about the resignation of the directors
EDGARDO SOJO G. and MARIA TERESA VISBAL DE BOJANINI. The
Assembly proceeded to elect a new Board of Directors stating
before its thanks to the directors that are leaving. The
Secretary informed that just the following list was presented:
PRINCIPAL 1ST PERSONAL DEPUTY 2ND PERSONAL DEPUTY
ENRIQUE PACHECO ALBERTO PERALTA ANA M. FERNANDEZ
MARCOS HORMIGA LUIS URQUIJO CARLOS DIAGO
MICHAEL MADIA WILLIAM SNARPONIS SVEN LEIBOLD
BRUCE LEVY VINCENT WHITE KELLY TOMBLIN
ALGIS DIDZIULIS VYTIS DIDZIULIS LUIS FDO SARMIENTO
After submitting the only list registered to vote, it obtained
1.634.000 votes in favor, and thus, the following Board of
Directors was duly elected:<PAGE>
PRINCIPAL 1ST PERSONAL DEPUTY 2ND PERSONAL DEPUTY
ENRIQUE PACHECO ALBERTO PERALTA ANA M. FERNANDEZ
MARCOS HORMIGA LUIS URQUIJO CARLOS DIAGO
MICHAEL MADIA WILLIAM SNARPONIS SVEN LEIBOLD
BRUCE LEVY VINCENT WHITE KELLY TOMBLIN
ALGIS DIDZIULIS VYTIS DIDZIULIS LUIS FDO SARMIENTO
The new directors elected and present as well as the previous
ones that are reelected and which are present, ENRIQUE J.
PACHECO, MARCOS HORMIGA, ANA MARGARITA FERNANDEZ and LUIS
FERNANDO SARMIENTO, informed the Assembly that they accepted
their appointments and they expressed their gratitude. 6.
ELABORATION AND APPROVAL OF THE MINUTE. After a short break,
while this Minute was drafted, the Secretary read it and it is
approved by the favorable vote of the 1.634.000 represented
shares. Not having any other issue to discuss and being 1:15
p.m., the meeting was adjourned. The President, LUIS CARLOS
NEIRA MEJIA, the Secretary PATRICIA MOLINARES DE GARCIA. It is a
true copy taken from the original (signed) PATRICIA MOLINARES DE
GARCIA. Secretary Ad-Hoc". Up to here is Minute No. 002 dated
December 16, 1994. ----------------------------- "MINUTE No. 003
of THE GENERAL SHAREHOLDER'S ASSEMBLY OF TERMOBARRANQUILLA S.A.
(EMPRESA DE SERVICIOS PUBLICOS).
In the city of Santafe de Bogota, on the 15th day of February
nineteen hundred ninety five (1995) at 11:00 a.m. at the Board
Room of FINANCIERA ENERGETICA NACIONAL "FEN" located at Carrera 7
No. 71-52 piso 7, the shareholders of the company
TERMOBARRANQUILLA S.A. (Empresa de Servicios Publicos) met
without previous notice, because all subscribed shares were
present, according to the provisions of article 34 of the
company's by-laws. The Agenda was developed as follows:
1. PPOINTMENT OF CHAIRMAN AND SECRETARY OF THE MEETING. 2.
VERIFICATION OF POWER OF ATTORNEY. 3. TAKING ATTENDANCE AND
VERIFICATION OF QUORUM. 4. APPLICATION OF THE TRANSITORY
ARTICLE OF THE CORPORATE BY-LAWS. 5. ELABORATION AND APPROVAL
OF THE MINUTE. 1. APPOINTMENT OF CHAIRMAN AND SECRETARY OF THE
MEETING: The attendants, with the positive vote of 1.634.000
shares, appointed Mr. ENRIQUE JAVIER PACHECO as President of the
meeting and Mrs. PATRICIA MOLINARES DE GARCIA as Secretary of
this meeting. 2. VERIFICATION OF POWER OF ATTORNEY. Next, the
Secretary stated to the Assembly that the following powers of
attorney were received: From ABB Energy Ventures Inc. in favor
of Mr. Robert Henry. From ABB Power Generation Ltd. in favor of
Mr. Robert Henry. From Distral Termica C.A. (EMA) granted to Mr.
DOMINGO JARAMILLO. From Energy Initiatives, Inc. granted to Mr.
LUIS CARLOS NEIRA. Said powers of attorney were duly revised by
the President and Secretary and the attendants and were found
sufficient and according to Colombian law. 3. TAKING ATTENDANCE
AND VERIFICATION OF QUORUM. The President requested the
Secretary to take attendance with the following result:
Corporacion Electrica de la Costa Atlantica, CORELCA, represented
by its General Director Dr. Enrique Javier Pacheco, with 582.521 <PAGE>
shares. ABB Energy Ventures Inc. represented by Robert Henry,
with Special Power of Attorney, with 404.252 shares. ABB Power
Generation Ltd., represented by Robert Henry, with Special Power
of Attorney, with 6.340 shares. Distral S.A. (EMA), represented
by its General Secretary, Mr. Luis FERNANDO SARMIENTO with 63.072
shares; Distral Termica C.A. EMA, represented by Mr. DOMINGO
JARAMILLO, with Special Power of Attorney with 63.072 shares.
Lancaster Steel Co. Inc., represented by its representative Mr.
VYTIS DIDZIULIS, with 84.151 shares; Energy Initiatives, Inc.,
represented by Dr. LUIS CARLOS NEIRA, with Special Power of
Attorney, with 420.592 shares. Total shares represented
1.634.000 shares. Due to the fact that all subscribed shares
were represented, the President declared the Assembly legally
installed in an extraordinary meeting. Besides the shareholders'
representatives, the President of the Company, Mr. HUMBERTO
JIMENEZ TRIVINO, as well as Messrs MARCOS HORMIGA, EDGARDO SOJO
GONZALEZ, PATRICIA MOLINARES DE GARCIA and Dr. JORGE EDUARDO
CHEMAS were also present. Then the shareholders different from
CORELCA requested a suspension of the Shareholders Assembly
meeting until Monday, February 20, 1995 at 6:00 p.m. due to the
fact that some issues need to be solved for point IV of the
Agenda. After submitting said proposal to the consideration it
was approved by all shareholders receiving the favorable vote of
the 1.634.000 represented shares. Consequently this Shareholders
Assembly meeting is suspended to be reassumed at the FINANCIERA
ENERGETICA NACIONAL offices located at Carrera 7 No. 71-92, Torre
B, Piso 7 of the city of Santafe de Bogota at 6:00 p.m. of next
February 20, 1995. At 6:00 p.m. of February 20, 1995 and with
the representation of all subscribed shares, the Extraordinary
Shareholder's Assembly meeting is reassumed, at the board room of
the FINANCIERA ENERGETICA NACIONAL, located at Carrera 7 No. 71-
92, Torre B, Piso 7 of the city of Santafe de Bogota. The
Secretary stated that all represented shareholders were present
as indicated in the verification of quorum. 4. APPLICATION OF
THE TRANSITORY CLAUSE OF CORPORATE BY-LAWS. With respect to this
aspect, Dr. LUIS FERNANDO SARMIENTO submitted to the
consideration of the Assembly a proposal extending the term
foreseen in the Transitory Article of the Corporate By-laws of
TERMOBARRANQUILLA until March 10, 1995. He based his proposal in
the fact that the general regime foreseen in the corporate by-
laws for convening the Shareholders meeting establishes some
fixed terms that may be complied with this new term even if we
have the usual inconveniences with publications in newspapers.
After listening to the above, The Assembly with the favorable
vote of 1.634.000 represented shares, agreed to extend the term
of February 20 of 1995, which is currently in the transitory
article of the corporate by-laws of TERMOBARRANQUILLA S.A.
(E.S.P.) for the one of March 10, 1995 and consequently to amend
said transitory article so that hereinafter it shall read as
follows: "TRANSITORY ARTICLE: If on March 10, 1995 the
corporation has not legalized the contracts for the financing of
the project on terms similar as that presented by the series B
shareholders in their offer to Corelca, unless 70% of the <PAGE>
subscribed shares vote otherwise in a General Assembly of
Shareholders, the company shall be declared dissolved and shall
enter into a period of liquidation. For purposes of the
liquidation, the designed Liquidator shall take into account the
following rules in complying with his duties: a) all assets that
Corelca may have contributed in kind shall be returned to Corelca
as total and only payment for its participation in the
liquidation; b) the remainder, once the external liabilities of
the company are paid, shall be distributed exclusively between
the Series B shareholders, in proportion to their contribution,
as total and only payment for their participation in the
liquidation. The rules stated above shall not be applied, and
thus the provisions of article 63 of these by-laws will apply, if
the inability to legalize the financial documents is due to any
of the following: a) Corelca does not obtain the guaranty
required for the execution of the project on terms that are
acceptable to the financial parties; b) the dissolution results
from an order from a competent authority. The Assembly reminded
the President of the company about his obligation to constitute
in a public deed the amendment to the by-laws as well as to
register it before the Chamber of Commerce of the corporate
domicile. 5. ELABORATION AND APPROVAL OF THE MINUTE. After a
short break, while this Minute was drafted, the Secretary read it
and it is approved by the favorable vote of the 1.634.000
represented shares. Not having any other issue to discuss and
being 6:30 p.m., the meeting was adjourned. The President,
ENRIQUE JAVIER PACHECO, the Secretary PATRICIA MOLINARES DE
GARCIA. It is a true copy taken from the original (signed)
PATRICIA MOLINARES DE GARCIA. Secretary Ad-Hoc". Up to here is
Minute No. 003 dated February 15, 1995. -------------------------
-- SECOND: That consequently, the TRANSITORY ARTICLE of the
company shall be as follows: TRANSITORY ARTICLE: If on March
10, 1995 the corporation has not legalized the contracts for the
financing of the project on terms similar as that presented by
the series B shareholders in their offer to Corelca, unless 70%
of the subscribed shares vote otherwise in a General Assembly of
Shareholders, the company shall be declared dissolved and shall
enter into a period of liquidation. For purposes of the
liquidation, the designed Liquidator shall take into account the
following rules in complying with his duties: a) all assets that
Corelca may have contributed in kind shall be returned to Corelca
as total and only payment for its participation in the
liquidation; b) the remainder, once the external liabilities of
the company are paid, shall be distributed exclusively between
the Series B shareholders, in proportion to their contribution,
as total and only payment for their participation in the
liquidation. The rules stated above shall not be applied, and
thus the provisions of article 63 of these by-laws will apply, if
the inability to legalize the financial documents is due to any
of the following: a) Corelca does not obtain the guaranty
required for the execution of the project on terms that are
acceptable to the financial parties; b) the dissolution results
from an order from a competent authority. THIRD: That with this
public deed the following documents are protocolized: <PAGE>
Certificate of the Chamber of Commerce of Barranquilla, Minute
No. 002 and No. 003 corresponding to the General Shareholders
Assembly of TERMOBARRANQUILLA S.A. -----------------------------
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
After this instrument was read, it was signed by all parties
participating in it, prior warning about the corresponding
registration. Notary Fees: $4.500.00. Superintendency
$1.000.00 Fondo $1.000.00 Decree 1574 of 1994. IT WAS DRAFTED IN
SHEETS NUMBERS "IB-10510, IB10509, IB-10508, IB-10505, IB-10511
AND IB-10504. BASE FOR LIQUIDATION: AN ACTION WITHOUT AMOUNT. -
- - - - - - - - VAT: $7.623.00
(signed)
HUMBERTO JIMENEZ TRIVINO
CC. No. 17.042.857 of Bogota - fingerprint
(signed)
JOSE M. HERRERA IRANZO
Sole Notary of Soledad - seal -<PAGE>
Exhibit B-161
OFFICIAL TRANSLATION No. 1915 of the attached document
"TRANSLATION OF PUBLIC DEED NO. 6455 of October 4, 1995 of
Raising a Minute to Public Deed - Termobarranquilla S.A. granted
by the Sole Notary of Soledad", written in Spanish, made by
Vivien Campo de Visbal, Certified Translator by virtue of
Resolution No. 1700 (April 28/83) of the Colombian Ministry of
Justice.<PAGE>
REPUBLIC OF COLOMBIA
SOLE NOTARY OF SOLEDAD
First
COPY of Public Deed No. 6455 of October 4, 1995, of Raising a
Minute to Public Deed - TERMOBARRANQUILLA S.A. "TEBSA S.A."
JOSE MANUEL HERRERA I.
President of the
Association of Notaries
Of the Coast<PAGE>
JOSE M. HERRERA IRANZO - SOLE NOTARY OF THE CIRCLE OF SOLEDAD
AA 528531
PUBLIC DEED NUMBER: 6.455 DATE: OCTOBER 4, 1995. - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - -
TYPE OF ACTION: RAISING TO PUBLIC DEED MINUTE NO. 008 OF THE
GENERAL SHAREHOLDERS ASSEMBLY OF TERMOBARRANQUILLA S.A. - - - - -
- - - - - - - - - - - - - MADE BY: TERMOBARRANQUILLA S.A. "TEBSA
S.A.". -
In the municipality of Soledad, of the circle of Soledad,
Department of Atlantico, Republic of Colombia, on the fourth (4)
day of October nineteen hundred and ninety five (1995) before me,
RAFAEL HERRERA IRANZO - - - sole Notary Public and Deputy of the
circle of Soledad appeared Mr. HUMBERTO JIMENEZ TRIVINO, of age,
with domicile in the city of Santafe de Bogota, and identified as
stated below his signature, of which I attest, and stated FIRST:
that is currently the President of the company with domicile in
Barranquilla, called "TERMOBARRANQUILLA S.A." Empresa de
Servicios Publicos" TEBSA S.A. (E.S.P.) incorporated by public
deed No. 9994 dated October 14, 1994, granted by the Sole Notary
of Soledad, as evidenced by the certificate of the Chamber of
Commerce of Barranquilla, copy of which is delivered to the
undersigned Notary to be part of this instrument. That under the
above stated position and complying with legal and statutory
provisions he appears in order to raise to a public deed minute
No. 0087 dated September 15, 1995 of the GENERAL SHAREHOLDERS
ASSEMBLY MEETING OF TERMOBARRANQUILLA S.A.", with the following
contents: "MINUTE No. 008 OF THE GENERAL SHAREHOLDERS ASSEMBLY OF
TERMOBARRANQUILLA S.A.": On the 15th day of September 1995 at
12:00 noon at 1301 Avenue of the Americas, New York, NY, USA, the
undersigned representing all the shareholders of
Termobarranquilla S.A. Empresa de Servicios Publicos ("TEBSA
S.A." or the "Company") met in a general shareholder's assembly
as permitted in Article 30 of the by-laws of TEBSA S.A. for the
purpose of adopting certain resolutions required in connection
with the financing of Termobarranquilla Project. AGENDA. The
General Shareholders Assembly approved the following agenda for
the meeting: 1. Taking Attendance and Verifying quorum. 2.
Appointing the Chairman and Secretary of the meeting. 3. Report
and discussion on efforts to achieve financing for the Company.
4. Adoption of resolutions. 5. Elaboration and approval of the
Minute. TAKING ATTENDANCE AND VERIFYING QUORUM: The Secretary
stated to the assembly that the following powers of attorney were
received: from EI Barranquilla, Inc. in favor of Mr. Mark T.
Mellana; from Distral Termica C.A. (EMA) in favor of Mr. Rafael
Torres. Said powers of attorney were duly reviewed by the
Chairman, the Secretary and the attendants and were found
sufficient. Attendance was taken with the following result:
CORELCA, represented by Dr. Enrique Javier Pacheco, with 582.521
shares; ABB Barranquilla Inc., represented by Mr. Robert Henry,
with 420.592 shares; EI Barranquilla Inc., represented by Mr.
Mellana, with 420.592 shares; Distral S.A. (EMA), represented by
Dr. Vytis Didziulis, with 63.072 shares; Distral Termica C.A.
EMA, represented by Mr. Rafael Torres with 63.072 shares; <PAGE>
Lancaster Steel Co. Inc., represented by Mr. Andrius Vismantas,
with 84.151 shares; Total represented 1.634.000 shares. Also in
attendance were Mr. Humberto Jimenez, President of TEBSA; Mr.
Marcos Hormiga of CORELCA, Messrs Peter Ciller, Michael Madia and
Mikael Karlsson of ABB Energy Ventures; and Mrs. Vivien Campo de
Visbal, who acted as translator. Due to the fact that all
subscribed shares were represented, the Chairman declared the
Assembly legally installed in an extraordinary meeting.
APPOINTMENT OF CHAIRMAN AND SECRETARY OF THE MEETING: Dr. Pacheco
was appointed Chairman of the Assembly by a unanimous vote of the
shares present. Mr. Henry was appointed Secretary of the
Assembly by a unanimous vote of the shares present. Mr. Jimenez
reported that the Company has executed the following contracts
for the financing of the Termobarranquilla project: 1. The
Common Agreement; 2. The Equipment Lease Agreement; 3. The OPIC
Finance Agreement; 4. EXIM Guaranteed Loan Agreement; 5. OPIC
Insured Loan Agreement; 6. OPIC Insured Note Purchase Agreement;
7. Uninsured Note Purchase Agreement; 8. Equity Bridge Loan
Agreement. Mr. Jimenez also reported that the following
documents are being dispatched to the Central Bank for the
Republic of Colombia for registration and/or study: 1. The OPIC
Finance Agreement; 2. The Equipment Lease Agreement; 3. The
Common Agreement. ADOPTION OF RESOLUTIONS: The shareholders
unanimously approved the following resolutions. RESOLUTION No.
1. MODIFICATION OF THE BY-LAWS: The Transitory Article is hereby
entirely deleted, and it agreed that any previous Transitory
Clause would have no effect. RESOLUTION NUMBER 2. GRANT OF
AUTHORIZATION TO THE BOARD OF DIRECTORS. The Board of Directors
is hereby authorized to cause the President to: 1. execute on
behalf of the Company an amendment to the Agreement for the
Rendering of Electric Energy Service ("PPA") dated March 29, 1995
between CORELCA and the Company as is, in his discretion, proper
and advisable (i) to amend Annex H of said PPA; and (ii) to amend
the PPA to implement the relevant terms and conditions of the
Consent and Acknowledgment executed by CORELCA in connection with
the financing of the Company; and 2. do or cause to be done all
such acts or things and to sign and deliver or cause to be signed
and delivered all such documents, agreements, instruments,
acknowledgments, pledges,, assignments, consents, and
certificates (including without limitation instruments, notices
and certificates required or permitted to be given under the
Common Agreement and the Schedules thereto or any other agreement
or document described or contemplated by any of the foregoing) in
the name of the Company, as he may deem necessary, advisable or
appropriate to effectuate and carry out the purposes and intent
of the foregoing Resolutions. ELABORATION AND APPROVAL OF
MINUTE. In accordance with the Chairman's instruction, this
Minute was elaborated and, having had submitted to the
consideration of the Shareholders, was approved unanimously. The
Chairman declared the meeting adjourned at 4:30 p.m. - - - The
Chairman, ENRIQUE JAVIER PACHECO, (signed) the Secretary ROBERT
HENRY (signed) - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - SECOND: That consequently, THE
TRANSITORY ARTICLE of the company's By-laws is deleted. After <PAGE>
this instrument was read, it was signed by all parties
participating in it, prior warning about the corresponding
registration. Notary Fees: $4.500.00. Superintendency $1.000.00
Fond $1.000.00 BASE FOR LIQUIDATION: ACTION WITHOUT VALUE
VAT: $5.733.00 - Decree 1572 of 1994. IT WAS DRAFTED IN SHEETS
NUMBERS "AA 528531, AA-528531, AA-528526, AA-528526, AA-528527.
ERASURE "RAFAEL" IS VALID - "DEPUTY" IS VALID.
(signed)
HUMBERTO JIMENEZ TRIVINO
CC. No. 17.042.857 of Bogota
PRESIDENT
(signed)
RAFAEL HERRERA IRANZO
Sole Notary of Soledad - Deputy - seal - <PAGE>
NOTARY OF SOLEDAD
This sheet correspond to the last page of the FIRST copy of
public deed Number 6155 dated October 4, 1995, granted by the
Sole Notary of the Circle of Soledad and it is a true copy and
the third one taken from the original, which was issued in twelve
(12) useful pages duly signed for TERMOBARRANQUILLA S.A. "TEBSA
S.A."
Soledad, October 4, Nineteen hundred and ninety five (1995)
(signed) The Notary of Soledad - Deputy - seal<PAGE>
Exhibit B-162
OFFICIAL TRANSLATION No. 1911 of the attached document
"TRANSLATION OF PUBLIC DEED No. 2093 OF TEBSA S.A. BY WHICH
MINUTES ARE RAISED TO PUBLIC DEED", written in Spanish, made by
Vivien Campo de Visbal, Certified Translator by virtue of
Resolution No. 1700 (April 28/83) of the Colombian Ministry of
Justice.<PAGE>
REPUBLIC OF COLOMBIA
SOLE NOTARY OF SOLEDAD
First
COPY of Public Deed No. 2.093 of April 6, 1995, raising to public
deed Minutes - TERMOBARRANQUILLA S.A. "TEBSA S.A."
JOSE MANUEL HERRERA I.
President of the
Association of Notaries
of the Coast<PAGE>
JOSE M. HERRERA IRANZO - SOLE NOTARY OF THE CIRCLE OF SOLEDAD
AA 0128152
PUBLIC DEED NUMBER: TWO THOUSAND NINETY THREE (2.093) DATED:
APRIL SIX (6) 1995. - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
In the municipality of Soledad, of the circle of Soledad,
Department of Atlantico, Republic of Colombia, on the sixth (6)
day of April nineteen hundred and ninety five (1995) before me,
JOSE MANUEL HERRERA IRANZO - - - sole Notary Public and Principal
of the circle of Soledad appeared HUMBERTO JIMENEZ TRIVINO, male,
of age, Colombian, identified with citizenship card number
17.042.857, issued in Bogota, with domicile in the city of
Santafe de Bogota who acts as President of the company with
domicile in Barranquilla, called "TERMOBARRANQUILLA S.A." Empresa
de Servicios Publicos" TEBSA S.A. (E.S.P.) incorporated by
public deed No. 9994 dated October 14, 1994, granted by the Sole
Notary of Soledad, as evidenced by the certificate of the Chamber
of Commerce of Barranquilla, copy of which is contributed to this
instrument and its contents is included in it and he stated that
in the above stated position and complying with legal and
statutory provisions he appears in order to raise to a public
deed the minutes No. 004, 005, and 006 dated March 7, 1995, March
27, 1995 and March 29, 1995 with the following contents: of the
GENERAL SHAREHOLDERS ASSEMBLY MEETINGS OF TERMOBARRANQUILLA S.A.
EMPRESA DE SERVICIOS PUBLICOS number 002 and 003 dated December
16, 1994 and February 15, 1995 with the following contents:
MINUTE No. 004 OF THE GENERAL SHAREHOLDER'S ASSEMBLY OF
TERMOBARRANQUILLA S.A. (EMPRESA DE SERVICIOS PUBLICOS). In the
city of Barranquilla, on the 16th day of December nineteen
hundred ninety four (1994) at 11:00 a.m. at Carrera 55 No. 77-
109, Piso 9, the shareholders of the company TERMOBARRANQUILLA
S.A. (Empresa de Servicios Publicos) met after written notice
made by the President of the company which was published in El
Ileraldo newspaper of February 24, 1995, in accordance with the
provisions of the above mentioned Article 31 of the corporate by-
laws. The Agenda foreseen in the notice was developed as
follows: 1. APPOINTMENT OF CHAIRMAN AND SECRETARY OF THE MEETING.
2. VERIFICATION OF POWER OF ATTORNEY. 3. TAKING ATTENDANCE AND
VERIFICATION OF QUORUM. 4. APPLICATION OF THE TRANSITORY CLAUSE
OF CORPORATE BY-LAWS. 5. DRAFTING AND APPROVAL OF MINUTE. 1.
APPOINTMENT OF CHAIRMAN AND SECRETARY OF THE MEETING: The
shareholders present, with the positive vote of all subscribed
shares, appointed Mr. ENRIQUE JAVIER PACHECO as President of the
meeting and Mrs. PATRICIA MOLINARES DE GARCIA as Secretary of
this meeting. 2. VERIFICATION OF POWER OF ATTORNEY. Next, the
Secretary stated to the Assembly that the following powers of
attorney were received: From ABB Energy Ventures Inc. in favor of
Mr. Robert Henry; from Distral Termica S.A. (EMA) in favor of Mr.
Jose Domingo Jaramillo; From Distral Termica C.A. (EMA) in favor
of Mr. Jose Domingo Jaramillo; From Lancaster Steel Ltd. in
favor of Mr. Jose Domingo Jaramillo; From Energy Initiatives,
Inc. granted to Mr. Luis Carlos Neira. Said powers of attorney
were duly revised by the President and Secretary and the<PAGE>
attendants and were found sufficient and according to Colombian
law. 3. TAKING ATTENDANCE AND VERIFICATION OF QUORUM. The
President requested the Secretary to take attendance, obtaining
the following result: Corporacion Electrica de law Costa
Atlantica, CORELCA, represented by its General Director Dr.
Enrique Javier Pacheco, with 582.521 shares ABB Energy Ventures
Inc. represented by Robert Henry, with Special Power of Attorney,
with 404.252 shares ABB Power Generation Ltd., represented by
Robert Henry, with Special Power of Attorney, with 16.340 shares
Distral S.A. (EMA), represented by Mr. Jose Domingo Jaramillo,
with Special Power of Attorney with 63.072 shares; Distral
Termica C.A., EMA, represented by Mr. Jose Domingo Jaramillo with
Special Power of Attorney with 63.072 shares; Lancaster Steel Co.
Inc., represented by Mr. Jose Domingo Jaramillo with Special
Power of Attorney, with 84.151 shares; Energy Initiatives, Inc.,
represented by Luis Carlos Neira, with Special Power of Attorney,
with 420.592 shares. Total shares represented 1.634.000 shares.
Due to the fact that all subscribed shares were represented, the
President declared the Assembly legally installed in an
extraordinary meeting. Besides the shareholders'
representatives, the President of the Company, Mr. HUMBERTO
JIMENEZ TRIVINO, as well as Messrs. MARCOS HORMIGA, EDCARDO SOJO,
PATRICIA MOLINARES DE GARCIA AND VIVIAN DE VISBAL were also
present. Dr. LUIS CARLOS NEIRA delivered a copy of the letter
signed by the ABB/DISTRAL/EI Consortium members to the Director
of CORELCA, letter addressed to CORELCA and dated March 7 of this
year in which the consortium states its position with respect of
items listed in Corelca's letter addressed to them on March 3,
1995 as well as the opinion in English by the company CARDENAS &
CARDENAS lawyers of the Financing Parties, where they comment
about the legal aspects presented by FEN with respect to the
supplementation of the FEN Guarantee, which was attached to said
letter of March 3. Then CORELCA's Director requested the other
shareholders to suspend the Assembly until Wednesday March 8 at
8:00 a.m. because the letter submitted by the Consortium includes
items to be agreed, which shall be discussed in meetings with the
participation of FEN, the Ministry of Mines and the Consortium in
the city of Bogota, as from this date. Messrs. ROBERT HENRY and
LUIS CARLOS NEIRA requested the Director of CORELCA to suspend
the meeting until Thursday, March 9, at 8:00 p.m., because they
consider that they don't have sufficient time to reach an
agreement in the meetings among the Ministry of Mince, FEN and
the consortium. After said proposal was submitted to the
consideration it was approved by all shareholders receiving a
positive vote from the 1.634.000 shares represented.
Consequently this Assembly meeting is suspended to be reassumed
at the Board Meeting Room of CORELCA located at Carrera 55 No.
72-109, Piso 10 in the city of Barranquilla, at 8:00 p.m. of the
next March 9, 1995. At 8:00 p.m. on March 9, 1995 and being
represented all subscribed shares, the meeting of the
Extraordinary Shareholders Assembly is reassumed at the Board
Room of CORELCA located at Carrera 55 No. 72-109, Piso 10 in the
city of Barranquilla. The Secretary stated that all represented
shares were present and as indicated in the verification of
quorum. 4. APPLICATION OF THE TRANSITORY CLAUSE OF CORPORATE
BY-LAWS. With respect to this aspect Dr. Luis Carlos Neira
submitted a proposal to the consideration of the Assembly, to<PAGE>
extend the term foreseen in the Transitory Article of the
corporate By-laws of TERMOBARRANQUILLA S.A. (E.S.P.) until March
24, 1995. On this particular item, the Director of CORELCA
stated that he accepts the Consortium proposal to extend the term
of TEBSA until March 24, 1995 and consequently votes positively
so that the parties represented by the Consortium and CORELCA
shall reach an agreement on the differences with respect to the
FEN guarantee stated by the Financing Parties. Similarly,
CORELCA rejects the statement made by the Consortium in item 6 of
the letter dated March 7, 1995. At the same time, the
shareholders of series B stated that they ratify their item 6 of
the latter of March 7, 1995, referred by CORELCA. After
listening to the above, the Assembly with the positive vote of
the 1.634.000 shares represented, agreed to modify the date of
March 10, 1995, which currently appears in the transitory article
of the Corporate By-laws of TERMOBARRANQUILLA S.A. (E.S.P.) for
the one of March 24, 1995 and consequently to amend said
transitory article so that now it will read as follows:
TRANSITORY ARTICLE: If on March 24, 1995 the corporation has not
legalized the contracts for the financing of the project on terms
similar as that presented by the series B shareholders in their
offer to Corelca, unless 70% of the subscribed shares vote
otherwise in a General Assembly of Shareholders, the company
shall be declared dissolved and shall enter into a period of
liquidation. For purposes of the liquidation, the designed
Liquidator shall take into account the following rules in
complying with his duties: a) all assets that Corelca may have
contributed in kind shall be returned to Corelca as total and
only payment for its participation in the liquidation; b) the
remainder, once the external liabilities of the company are paid,
shall be distributed exclusively between the Series B
shareholders, in proportion to their contribution, as total and
only payment for their participation in the liquidation. The
rules stated above shall not be applied, and thus the provisions
of article 63 of these by-laws will apply, if the inability to
legalize the financial documents is due to any of the following:
a) Corelca does not obtain the guaranty required for the
execution of the project on terms that are acceptable to the
financial parties; b) the dissolution results from an order from
a competent authority. The Assembly reminded the President of
the company about his obligation to constitute in a public deed
the amendment to the by-laws as well as to register it before the
Chamber of Commerce of the corporate domicile. 5. DRAFTING AND
APPROVAL OF THE MINUTE. After a short break, while this Minute
was drafted, the Secretary read it and it is approved by the
favorable vote of the 1.634.000 represented shares. Not having
any other issue to discuss and being 11:00 p.m., of March 9, 1995
the meeting was adjourned. (Signed) The President, ENRIQUE
JAVIER PACHECO, (signed) the Secretary PATRICIA MOLINARES DE
GARCIA. It is a true copy taken from the original (signed)
PATRICIA MOLINARES DE GARCIA. Secretary Ad-Hoc". - "MINUTE No.
005 OF THE GENERAL SHAREHOLDERS ASSEMBLY MEETING OF
TERMOBARRANQUILLA S.A. (EMPRESA DE SERVICIOS PUBLICOS). In the
city of Barranquilla, on the 24th day of March, 1995 at 11:00
a.m. at Carrera 55 No. 72-109, Piso 9, the shareholders of the
company TERMOBARRANQUILLA S.A. (Empresa de Servicios Publicos)
met after written notice made by the President of the company on<PAGE>
March 12, 1995 and published in El Heraldo newspaper of March 13,
1995 in accordance with the provisions of the above mentioned
Article 31 of the corporate by-laws. The Agenda foreseen in the
notice was developed as follows: 1. TAKING ATTENDANCE AND
VERIFICATION OF QUORUM. 2. APPOINTMENT OF CHAIRMAN AND
SECRETARY OF THE MEETING. 3. APPLICATION OF THE TRANSITORY
ARTICLE OF CORPORATE BY-LAWS. 4. DRAFTING AND APPROVAL OF THE
MINUTE. 1. TAKING ATTENDANCE AND VERIFICATION OF QUORUM: Next
the Secretary stated to the Assembly that the following powers of
attorney were received: From ABB Energy Ventures Inc. in favor of
Mr. Robert Henry; from ABB Power Generation Ltd. in favor of Mr.
Robert Henry; from Distral Termica C.A. (EMA) in favor of Mr.
Jose Domingo Jaramillo; From Distral Termica S.A. (EMA) in favor
of Mr. Jose Domingo Jaramillo; From Lancaster Steel Ltd. in favor
of Mr. Jose Domingo Jaramillo; From Energy Initiatives, Inc.
granted to Mr. Luis Carlos Neira. Said powers of attorney were
duly revised by the President and Secretary and the attendants
and were found sufficient and according to Colombian law.
Attendance was taken with the following result: Corporacion
Electrica de la Costa Atlantica, CORELCA, represented by its
General Director Dr. Enrique Javier Pacheco, with . . . . . .
582.521 shares ABB Energy Ventures Inc. represented by Robert
Henry, with Special Power of Attorney, with . . . . . . 404.252
shares ABB Power Generation Ltd., represented by Robert Henry,
with Special Power of Attorney, with . . . . . . 16.340 shares
Distral S.A. (EMA), represented by Mr. Jose Domingo Jaramillo,
with Special Power of Attorney, with . . . . . . 63.072 shares;
Distral Termica C.A. EMA, represented by Mr. Jose Domingo
Jaramillo, with Special Power of Attorney with . . . . . . 63.072
shares; Lancaster Steel Co. Inc., represented by Mr. Jose Domingo
Jaramillo with Special Power of Attorney, with . . . . . . 84.151
shares; Energy Initiatives, Inc., represented by Luis Carlos
Neira, with Special Power of Attorney, with . . . . . . 420.592
shares. Total shares represented . . . . . . 1.634.000 shares.
Due to the fact that all subscribed shares were represented, the
President declared the Assembly legally installed in an
extraordinary meeting. Besides the shareholders'
representatives, the President of the company, Mr. HUMBERTO
JIMENEZ TRIVINO, as well as Messrs. MARCOS HORMIGA, EDGARDO SOJO,
PATRICIA MOLINARES DE GARCIA AND VIVIAN DE VISBAL were also
present. 2. APPOINTMENT OF CHAIRMAN AND SECRETARY OF THE
MEETING: The shareholders present, with the positive vote of all
subscribed shares, appointed Mr. HUMBERTO JIMENEZ as President of
the meeting and Mrs. PATRICIA MOLINARES DE GARCIA as Secretary of
this meeting. 3. APPLICATION OF THE TRANSITORY CLAUSE OF
CORPORATE BY-LAWS. With respect to this aspect, there is a
proposal to extend the term of TEBSA S.A. until April 19, 1995.
The Assembly with the favorable vote of 1.634.000 represented
shares, decided to modify the date of March 24, 1995 currently on
the Transitory Article of the corporate By-laws of
TERMOBARRANQUILLA S.A. (E.S.P.) by the date of April 19, 1995
and consequently to amend said transitory article to read as
follows: TRANSITORY ARTICLE: If on April 19, 1995 the corporation
has not legalized the contracts for the financing of the project
on terms similar as that presented by the series B shareholders
in their offer to Corelca, unless 70% of the subscribed shares <PAGE>
vote otherwise in a General Assembly of Shareholders, the company
shall be declared dissolved and shall enter into a period of
liquidation. For purposes of the liquidation, the designed
Liquidator shall take into account the following rules in
complying with his duties: a) all assets that Corelca may have
contributed in kind shall be returned to Corelca as total and
only payment for its participation in the liquidation; b) the
remainder, once the external liabilities of the company are paid,
shall be distributed exclusively between the Series B
shareholders, in proportion to their contribution, as total and
only payment for their participation in the liquidation. The
rules stated above shall not be applied, and thus the provisions
of article 63 of these by-laws will apply, if the inability to
legalize the financial documents is due to any of the following:
a) Corelca does not obtain the guaranty required for the
execution of the project on terms that are acceptable to the
financial parties; b) the dissolution results from an order from
a competent authority. The Assembly reminded the President of
the company about his obligation to constitute in a public deed
the amendment to the by-laws as well as to register it before the
Chamber of Commerce of the corporate domicile. 4.
MISCELLANEOUS. 4.1 With the favorable vote of the 1.634.000
shares the authorization given by TEBSA S.A.'s Board of Directors
to the President of the Company Mr. Humberto Jimenez to sign the
power purchase agreement (P.P.A.) in the terms appearing in the
version PPASAP.14 dated March 16, 1995, is ratified. 4.2 An
Extraordinary Shareholders Meeting of TEBSA S.A. is convened for
Wednesday April 19, at 8:00 p.m., in the city of Barranquilla, at
CORELCA's office to deal with the application of the transitory
article of TERMOBARRANQUILLA S.A.'s corporate by-laws, being this
approved by one hundred per cent (100%) of the subscribed shares.
5. DRAFTING AND APPROVAL OF THE MINUTE. After a short break,
while this Minute was drafted, the Secretary read it and it is
approved by the favorable vote of the 1.634.000 represented
shares. Not having any other issue to discuss and being 3:40
p.m., the meeting was adjourned. (signed) The President,
HUMBERTO JIMENEZ, (signed) the Secretary PATRICIA MOLINARES DE
GARCIA. It is a true copy taken from the original (signed)
PATRICIA MOLINARES DE GARCIA. Secretary Ad-Hoc". MINUTE No. 006
OF THE GENERAL SHAREHOLDERS ASSEMBLY MEETING OF TERMOBARRANQUILLA
S.A. In Santafe de Bogota at 9:00 p.m. of March 29, 1995, at the
Offices of THE MINISTRY OF MINES AND ENERGY the shareholders of
the company TERMOBARRANQUILLA S.A. met in an Extraordinary
Shareholders Assembly Meeting after being convened by the same
Shareholders Assembly in their extraordinary meeting held on
March 24, 1995, in accordance with the provisions of the
corporate by-laws. With the vote of all shareholders
representing all subscribed shares of TERMOBARRANQUILLA S.A. the
following agenda was developed: 1. TAKING ATTENDANCE AND
VERIFICATION OF QUORUM. 2. APPOINTMENT OF CHAIRMAN AND
SECRETARY OF THE MEETING. 3. APPLICATION OF THE TRANSITORY
ARTICLE OF THE CORPORATE BY-LAWS. 4. ELABORATION AND APPROVAL
OF THE MINUTE. 1. TAKING ATTENDANCE AND VERIFICATION OF QUORUM:
Next the Secretary stated to the Assembly that the following
powers of attorney were received: From ABB Energy Ventures Inc.
in favor of Mr. Gonzalo Gutierrez; from ABB Power Generation Ltd.
in favor of Mr. Gonzalo Gutierrez; From Energy Initiatives, Inc. <PAGE>
in favor of Mr. Camilo Bernal Montes. Said powers of attorney
were duly revised by the President and Secretary and the
attendants and were found sufficient and according to Colombian
law. Attendance was taken with the following result: Corporacion
Electrica de la Costa Atlantica, CORELCA, represented by its
General Director Dr. Enrique Javier Pacheco, with 582.521 shares.
ABB Energy Ventures Inc. represented by Gonzalo Gutierrez, with
Special Power of Attorney, with 404.252 shares. ABB Power
Generation Ltd., represented by Gonzalo Gutierrez, with Special
Power of Attorney, with 16.340 shares. Distral S.A. (EMA),
represented by Mr. Luis Fernando Sarmiento with 63.072 shares;
Distral Termica C.A. EMA, represented by Mr. Algis Didziulis,
with 63.072 shares. Lancaster Steel Co. Inc., represented by Mr.
Vytis Didziulis, with 84.151 shares; Energy Initiatives, Inc.,
represented by Dr. Camilo Bernal Montes, with Special Power of
Attorney, with 420.592 shares, verifying that all subscribed
shares were represented, the President declared the Assembly
legally installed in an extraordinary meeting. Besides the
shareholders' representatives, the President of the Company, Mr.
Humberto Jimenez Trivino, as well as Messrs. Marcos Hormiga
Perez, Edgardo Sojo Gonzalez, Patricia Molinares de Garcia and
Jose Domingo Jaramillo Penas were also present. 2. APPOINTMENT
OF CHAIRMAN AND SECRETARY OF THE MEETING: The attendants, with
the positive vote of all subscribed shares represented appointed
Mr. Algis Didziulis A. as President of the meeting and Mrs.
Patricia Molinares de Garcia as Secretary of this meeting. 3.
APPLICATION OF THE TRANSITORY CLAUSE OF CORPORATE BY-LAWS. With
respect to this aspect, there is a proposal to extend the term of
TEBSA S.A. until August 31, 1995. The Assembly with the
favorable vote of 1.634.000 represented shares, decided to modify
the date of April 19, 1995 currently on the Transitory Article of
the corporate By-laws of Termobarranquilla S.A. (E.S.P.) by the
date of August 31, 1995 and consequently to amend said transitory
article to read as follows: TRANSITORY ARTICLE: If on August 31,
1995 the corporation has not legalized the contracts for the
financing of the project on terms similar as that presented by
the series B shareholders in their offer to Corelca, unless 70%
of the subscribed shares vote otherwise in a General Assembly of
Shareholders, the company shall be declared dissolved and shall
enter into a period of liquidation. For purposes of the
liquidation, the designed Liquidator shall take into account the
following rules in complying with his duties: a) all assets that
Corelca may have contributed in kind shall be returned to Corelca
as total and only payment for its participation in the
liquidation; b) the remainder, once the external liabilities of
the company are paid, shall be distributed exclusively between
the Series B shareholders, in proportion to their contribution,
as total and only payment for their participation in the
liquidation. The rules stated above shall not be applied, and
thus the provisions of article 63 of these by-laws will apply, if
the inability to legalize the financial documents is due to any
of the following: a) Corelca does not obtain the guaranty
required for the execution of the project on terms that are
acceptable to the financial parties; b) the dissolution results
from an order from a competent authority. The Assembly reminded
the President of the company about his obligation to constitute
in a public deed the amendment to the by-laws as well as to <PAGE>
register it before the Chamber of Commerce of the corporate
domicile. 4. DRAFTING AND APPROVAL OF THE MINUTE. After a
short break, while this Minute was drafted, the Secretary read it
and it is approved by the favorable vote of the 1.634.000
represented shares. Not having any other issue to discuss and
being 9:30 p.m. of March 29, 1995, the meeting was adjourned.
(signed) The President, Algis Didziulis A, (signed) the Secretary
Patricia M. DE GARCIA. It is a true copy taken from the original
(signed) PATRICIA MOLINARES DE GARCIA. Secretary Ad-Hoc".
SECOND: That consequently, the TRANSITORY ARTICLE of the company
shall be as follows: TRANSITORY ARTICLE: If on August 31, 1995
the corporation has not legalized the contracts for the financing
of the project on terms similar as that presented by the series B
shareholders in their offer to Corelca, unless 70% of the
subscribed shares vote otherwise in a General Assembly of
Shareholders, the company shall be declared dissolved and shall
enter into a period of liquidation. For purposes of the
liquidation, the designed Liquidator shall take into account the
following rules in complying with his duties: a) all assets that
Corelca may have contributed in kind shall be returned to Corelca
as total and only payment for its participation in the
liquidation; b) the remainder, once the external liabilities of
the company are paid, shall be distributed exclusively between
the Series B shareholders, in proportion to their contribution,
as total and only payment for their participation in the
liquidation. The rules stated above shall not be applied, and
thus the provisions of article 63 of these by-laws will apply, if
the inability to legalize the financial documents is due to any
of the following: a) Corelca does not obtain the guaranty
required for the execution of the project on terms that are
acceptable to the financial parties; b) the dissolution results
from an order from a competent authority. THIRD: By this public
instrument clarification is made with respect to: that due to a
transcription error in Minute No. 003 raised to public deed under
number 1198 dated February 24 of 1995, it was stated that the
date of said minute was February 15, but after checking with the
original which is in the corresponding minute book, the date is
February 16, consequently said error is corrected by means of
this public instrument and a copy of said minute is attached to
be protocolized with this instrument and its contents be included
in the copies to be issued if it. After this instrument was
read, it was signed by all parties participating in it, prior
warning about the corresponding registration. Notary Fees:
$9.000.00. Superintendency $1.000.00 Fondo $1.000.00 Decree 1572
of 1994. BASE FOR LIQUIDATION: Two actions without amount. - -
- - - - - - - - IT WAS DRAFTED IN SHEETS NUMBERS "AA-0128152, AA-
0128513 AA-0128154, AA-0128155, AA-0128156, AA-0128157 and AA-
0128578.
VAT: $9.765.00
(signed)
HUMBERTO JIMENEZ TRIVINO
CC. No. 17.042.857 of Bogota - fingerprint
(signed)
JOSE M. HERRERA IRANZO
Sole Notary of Soledad - seal - <PAGE>
NOTARY OF SOLEDAD
This sheet correspond to the last page of the FIRST copy of
public deed Number 2093 dated April 6, 1995, granted by the Sole
Notary of the Circle of Soledad and it is a true copy and the
third one taken from the original, which was issued in 32 useful
pages duly signed for TERMOBARRANQUILLA S.A. "TEBSA S.A."
Soledad, April 6, nineteen hundred and ninety five (1995)
(signed) The Secretary - Notary of Soledad - seal<PAGE>
Exhibit B-163
OFFICIAL TRANSLATION No. 1914 of the attached document
"TRANSLATION OF PUBLIC DEED NO. 5777 of September 5, 1995 of
Statutory Reform of Termobarranquilla S.A. granted by the Sole
Notary of Soledad", written in Spanish, made by Vivien Campo de
Visbal, Certified Translator by virtue of Resolution No. 1700
(April 28/83) of the Colombian Ministry of Justice.<PAGE>
REPUBLIC OF COLOMBIA
SOLE NOTARY OF SOLEDAD
First
COPY of Public Deed No. 5.777 of September 5, 1995, of Statutory
Reform - TERMOBARRANQUILLA S.A. "TEBSA S.A."
JOSE MANUEL HERRERA I.
President of the
Association of Notaries
of the Coast<PAGE>
JOSE M. HERRERA IRANZO - SOLE NOTARY OF THE CIRCLE OF SOLEDAD
AA 442936
PUBLIC DEED NUMBER: 5.777 DATE: SEPTEMBER 5, 1995. - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
TYPE OF ACTION: STATUTORY REFORM - - - - - - - - - - - - - - - -
MADE BY: TERMOBARRANQUILLA S.A. "TEBSA S.A.": In the municipality
of Soledad, of the circle of Soledad, Department of Atlantico,
Republic of Colombia, on the fifth (5) day of September nineteen
hundred and ninety five (1995) before me, JOSE MANUEL HERRERA
IRANZO - - - sole Notary Public and Principal of the circle of
Soledad appeared Mr. HUMBERTO JIMENEZ TRIVINO, male, of age,
Colombian, identified with citizenship card number 17.042.857,
issued in Bogota, with domicile in the city of Santafe de Bogota
who acts as President of the company with domicile in
Barranquilla, called :TERMOBARRANQUILLA S.A." Empresa de
Servicios Publicos" TEBSA S.A. (E.S.P.) incorporated by public
deed No. 9994 dated October 14, 1994, granted by the Sole Notary
of Soledad, as evidenced by the certificate of the Chamber of
Commerce of Barranquilla, copy of which is contributed to this
instrument and its contents is included in it and he stated that
in the above stated position and complying with legal and
statutory provisions he appears in order to raise to a public
deed minute No. 007 dated August 28, 1995 of the GENERAL
SHAREHOLDERS ASSEMBLY MEETING OF TERMOBARRANQUILLA S.A.", with
the following contents: "MINUTE No. 007 OF THE GENERAL
SHAREHOLDERS ASSEMBLY OF TERMOBARRANQUILLA S.A.": On the 28th day
of August 1995 at 7:00 p.m. at 200 Park Avenue, New York, NY,
USA, the undersigned representing all the shareholders of the
company Termobarranquilla S.A. Empresa de Servicios Publicos
("TEBSA S.A." or the "Corporation") met in a general
shareholder's assembly as permitted in Article 30 of the by-laws
of TEBSA S.A. for the purpose of adopting certain resolutions
required in connection with the financing of Termobarranquilla
Project. 1. TAKING ATTENDANCE AND VERIFYING QUORUM: The
Secretary stated to the assembly that the following powers of
attorney were received: from EI Barranquilla, Inc. in favor of
Mr. Mark T. Mellana; from Distral Termica S.A. (EMA) in favor of
Mr. Rafael Torres; and from Lancaster Steel Co. Inc. in favor
of Mr. Rafael Torres. Said powers of attorney were duly reviewed
by the President, the Secretary and the attendants and were found
sufficient. Attendance was taken with the following result:
CORELCA, represented by Dr. Enrique Javier Pacheco, with 582.521
shares ABB Barranquilla Inc., represented by Mr. Henry with
404.252 shares; EI Barranquilla Inc., represented by Mr. Mellana,
with 420.592 shares; Distral S.A. (EMA), represented by Mr.
Torres, with 63.072 shares; Distral Termica C.A. EMA,
represented by Mr. Torres with 63.072 shares; Lancaster Steel Co.
Inc., represented by Mr. Torres, with 84.151 shares; Total
represented 1.634.000 shares. Also in attendance were Marcos
Hormiga, Sven Leibold, Vytis Didziulis, Michael Madia and Vivien
Campo de Visbal. Due to the fact that all subscribed shares were
represented, the President declared the Assembly legally
installed in an extraordinary meeting. APPOINTMENT OF CHAIRMAN <PAGE>
AND SECRETARY OF THE MEETING: Mr. Humberto Jimenez, President of
TEBSA S.A. was appointed Chairman of the Assembly by a unanimous
vote of the shares present. Mr. Henry was appointed Secretary of
the Assembly by a unanimous vote of the shares present.
ADOPTION OF RESOLUTIONS: The following resolutions were adopted
by the Shareholders to be effective immediately with a unanimous
vote of the shares present. RESOLUTION No. 1 MODIFICATION OF
THE BY-LAWS: Article 5 is hereby rewritten to increase the
authorized share capital as follows: The authorized capital of
the Corporation of ONE HUNDRED THOUSAND MILLION
($100.000.000.000) legal tender divided in ONE HUNDRED MILLION
(100.000.000) nominal common and capital shares, with a nominal
value of ONE THOUSAND PESOS ($1.000) legal tender each, divided
into two series: Series A which shall be owned by CORELCA or by
government entities and Series B which shall be owned by natural
or legal persons, domestic or foreign, from the private sector.
ARTICLE 14 is hereby amended by adding the following paragraphs
at the end: PARAGRAPH TWO: The provisions of this Article 14
shall not apply in the case where, in order to secure refining
for the Corporation, a shareholder has pledged its shares of the
Corporation to third persons making loans to or guarantees in
favor of the Corporation and pursuant to such pledge, such
shareholder must sell, transfer or otherwise convey its interest
in such shares. PARAGRAPH THREE: The provisions of this Article
14 shall not apply in the case where a shareholders accepts an
assignment from another shareholder of the latter's shares and
all funding obligations, guarantees and commitments appurtenant
thereto undertaken in order to secure financing for the
Corporation. In this case the assignee shareholder may freely
transfer the rights and obligations accepted from the assignor
shareholder to a third party approved by a majority of the Board
of Directors. ARTICLE 16 is hereby amended by adding the
following paragraph at the end: PARAGRAPH: A shareholder may
assign its preferential right to subscribe in any new issuance of
shares to another shareholder of the same series so long as the
preferential rights of fellow shareholders not a party to the
assignment (whether Series A or B) are unaffected. An assignment
of preferential rights pursuant to this Paragraph shall not be
subject to the provisions of Article 14 of these by-laws. The
Corporation shall acknowledge and consent to such assignment upon
presentation of the written assignment agreement signed by the
assignee and assignor shareholders. The TRANSITORY ARTICLE is
hereby amended by replacing the date "August 31, 1995", with the
date "September 15, 1995". RESOLUTION NUMBER 2. GRANT OF
AUTHORIZATION TO THE BOARD OF DIRECTORS. The Board of Directors
is hereby authorized to cause the President to: 1. execute on
behalf of the Corporation an Agreement as to Certain
Undertakings, Common Representations, Warranties, Covenants and
other Terms (the "Common Agreement") between the Corporation and
Los Amigos Leasing Company Ltd. (collectively, the "Borrower")
and the Union Bank of Switzerland, Banque Paribas, The Export-
Import Bank of the United States and the Overseas Private
Investment Corporation, among others (collectively, the
"Financing Parties"); 2. execute on behalf of the Corporation a <PAGE>
Conditional Assignment of Lease dated the date of the Common
Agreement between the Corporation and a collateral agent to be
appointed by the Financing Parties (the "Collateral Agent"); 3.
execute on behalf of the Corporation a Collateral Trust Agreement
concerning the Corporation's immovables with Sociedad Fiduciaria
Anglo S.A., Fiduanglo; 4. execute on behalf of the Corporation
a Collateral Trust Agreement concerning the Corporation's
moveable assets and receivables with Sociedad Fiduciaria Anglo
S.A., Fiduanglo; 5. execute on behalf of the Corporation a
Conditional Assignment of Project Documents dated the date of the
Common Agreement between the Corporation and the Collateral
Agent; 6. execute on behalf of the Corporation a Contract for
the Engineering, Procurement, Construction, Testing and
Commissioning of a Combined Cycle Electric Facility between the
Corporation and a consortium comprised of Asca Brown Boveri Ltda
and Distral S.A. on terms consistent with or reconcilable to pro
forma economic projections prepared in connection with the
financial closing and the offer submitted by the ABB/EI/Distral
Consortium, as amended; 7. execute on behalf of the Corporation
a Collateral Agency Agreement dated the date of the Common
Agreement, among the Corporation, Los Amigos Leasing Company,
Ltd., the Collateral Agent, the Sociedad Ficudiaria Anglo S.A.
Fiduanglo, the Export-Import Bank of the United States and
Overseas Private Investment Corporation, among others; 8. enter
into on behalf of the Corporation one or more Interest Rate Hedge
Agreement on terms and conditions as are, in the President's
discretion, necessary and appropriate; 9. execute on behalf of
the Corporation a Lease Agreement between the Corporation and Los
Amigos Leasing Company Ltd. on terms and conditions as are, in
the President's discretion, necessary, appropriate and consistent
with or reconcilable to pro forma economic projections prepared
in connection with the financial closing and the offer submitted
by the ABB/Distral/EI Consortium, as amended; 10. execute on
behalf of the Corporation a Hot Gas Path Agreement between the
Corporation and Asea Brown Boveri Ltda. on terms and conditions
as are, in the President's discretion, necessary, appropriate and
consistent with or reconcilable to pro forma economic projections
prepared in connection with the financial closing and the offer
submitted by the ABB/Distral/EI Consortium, as amended; 11.
execute on behalf of the Corporation an Operations & Maintenance
Agreement between the Corporation and EI Services Colombia, Ltda,
on terms and conditions as are, in the President's discretion,
necessary, appropriate and consistent with or reconcilable to pro
forma economic projections prepared in connection with the
financial closing and the offer submitted by the ABB/Distral/EI
Consortium, as amended; 12. execute on behalf of the
Corporation an Operations & Maintenance Agreement between the
Corporation and International Power Advisors, Inc., on terms and
conditions as are, in the President's discretion, necessary,
appropriate and consistent with or reconcilable to pro forma
economic projections prepared in connection with the financial
closing and the offer submitted by the ABB/Distral/EI Consortium,
as amended; 13. execute on behalf of the Corporation an OPIC
Finance Agreement dated the date of the Common Agreement between <PAGE>
the Corporation and the Overseas Private Investment Corporation;
14. execute on behalf of the Corporation subordinated loan
agreements with one or more of the Corporation's Series B
shareholders; 15. execute on behalf of the Corporation
amendments (in form substantially as attached) to the Agreement
for the Rendering of Electric Energy Service dated March 29, 1995
between CORELCA and the Corporation and the related Site Access
Agreement; and 16. to do or cause to be done all such acts or
things and to sign and deliver or cause to be signed and
delivered all such documents, agreements, instruments,
acknowledgments, pledges, assignments, consents, and certificates
(including without limitation instruments, notices and
certificates required or permitted to be given under the Common
Agreement and the Scheduled thereto or any other agreement or
document described or contemplated by any of the foregoing) in
the name of the Corporation, as he may deem necessary, advisable
or appropriate to effectuate and carry out the purposes and
intent of the foregoing resolutions and to perform the
obligations of the Corporation under such agreements and
otherwise in connection with the transactions described in or
contemplated by such agreements. The powers granted to the
President under this resolution are limited to executing
contracts mentioned in items 6, 10, 11 and 12 above, which do not
in the aggregate exceed the amounts comprehended in the offer
made by the ABB/Distral/EI Consortium with the exception of the
price for the contract mentioned in item 6 for which a price
increase was previously authorized by the Shareholders in its
meeting minute No. 1. The powers granted to the President under
this resolution are limited to executing a lease of the type
mentioned in item 9, above, which lease payments are committed to
approximate the payments of principal and interest payable by the
lessor, that is, there will be no payments for the benefits of
any third parties. ELABORATION AND APPROVAL OF MINUTE. In
accordance with the President's instruction, this minute was
elaborated and, having had submitted to the consideration of the
Shareholders, was approved unanimously. The President declared
the meeting adjourned at 8:00 p.m. - - - The President, HUMBERTO
JIMENEZ, (signed) the Secretary ROBERT HENRY (signed) - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
SECOND: That consequently, ARTICLE FIVE (5) of the company's By-
laws shall be as follows: ARTICLE FIVE (5): The authorized
capital of the Corporation of ONE HUNDRED THOUSAND MILLION
($100.000.000.000) legal tender divided in ONE HUNDRED MILLION
(100.000.000) nominal common and capital shares, with a nominal
value of ONE THOUSAND PESOS ($1.000) legal tender each, divided
into two series: Series A which shall be owned by CORELCA or by
government entities and Series B which shall be owned by natural
or legal persons, domestic or foreign, from the private sector.
The paragraph of Article 14 shall be as follows: ARTICLE 14,
PARAGRAPH ONE: The right of preference regulated by this article
has been done taking into consideration that the in action by
which the incorporation of the Corporation was authorized, the
Corporacion Electrica de la Costa Atlantica CORELCA was also
authorized to agree on a preference right in the negotiation of <PAGE>
shared without being subject to the provisions of articles 10 and
18 of Decree 130 of 1976 and other applicable regulations. And
the following paragraphs were added: PARAGRAPH TWO: The
provisions of this Article 14 shall not apply in the case where,
in order to secure refining for the Corporation, a shareholder
has pledged its shares of the Corporation to third persons making
loans to or guarantees in favor of the Corporation and pursuant
to such pledge, such shareholder must sell, transfer or otherwise
convey its interest in such shares. PARAGRAPH THREE: The
provisions of this Article 14 shall not apply in the case where a
shareholders accepts an assignment from another shareholder of
the latter's shares and all funding obligations, guarantees and
commitments appurtenant thereto undertaken in order to secure
financing for the Corporation. In this case the assignee
shareholder may freely transfer the rights and obligations
accepted from the assignor shareholder to a third party approved
by a majority of the Board of Directors. ARTICLE 16 is amended
by adding the following paragraph and consequently it shall read:
ARTICLE 16. - PARAGRAPH: A shareholder may assign its
preferential right to subscribe in any new issuance of shares to
another shareholder of the same series so long as the
preferential rights of fellow shareholders not a party to the
assignment (whether Series A or B) are unaffected. An assignment
of preferential rights pursuant to this Paragraph shall not be
subject to the provisions of Article 14 of these by-laws. The
Corporation shall acknowledge and consent to such assignment upon
presentation of the written assignment agreement signed by the
assignee and assignor shareholders. The Transitory Article of
the Corporation shall read as follows: If on September 15, 1995
the corporation has not legalized the contracts for the financing
of the project on terms similar as that presented by the series B
shareholders in their offer to Corelca, unless 70% of the
subscribed shares vote otherwise in a General Assembly of
Shareholders, the company shall be declared dissolved and shall
enter into a period of liquidation. For purposes of the
liquidation, the designed Liquidator shall take into account the
following rules in complying with his duties: a) all assets that
Corelca may have contributed in kind shall be returned to Corelca
as total and only payment for its participation in the
liquidation; b) the remainder, once the external liabilities of
the company are paid, shall be distributed exclusively between
the Series B shareholders, in proportion to their contribution,
as total and only payment for their participation in the
liquidation. The rules stated above shall not be applied, and
thus the provisions of article 63 of these by-laws will apply, if
the inability to legalize the financial documents is due to any
of the following: a) Corelca does not obtain the guaranty
required for the execution of the project on terms that are
acceptable to the financial parties; b) the dissolution results
from an order from a competent authority. After this instrument
was read, it was signed by all parties participating in it, prior
warning about the corresponding registration. Notary Fees :
$2414.838.750.00<PAGE>
Superintendency $1.000.00 Fondo $1.000.00 Decree 1572 of 1994.
BASE FOR LIQUIDATION: $96.732.000.000.00 - IT WAS DRAFTED IN
SHEETS NUMBERS "AA-442936, AA-442937 AA-442672, AA-442744, AA-
442929, and AA-442930.
VAT: $33.869.486.00
(signed)
HUMBERTO JIMENEZ TRIVINO
CC. No. 17.042.857 of Bogota - fingerprint
(signed)
JOSE M. HERRERA IRANZO
Sole Notary of Soledad - seal -<PAGE>
NOTARY OF SOLEDAD
This sheet correspond to the last page of the FIRST copy of
public deed Number 5777 dated September 5, 1995, granted by the
Sole Notary of the Circle of Soledad and it is a true copy and
the third one taken from the original, which was issued in 17
useful pages duly signed for TERMOBARRANQUILLA S.A. "TEBSA S.A."
Soledad , September 5, nineteen hundred and ninety five (1995)
(signed) The Secretary Notary of Soledad - seal<PAGE>
Exhibit B-164
EI CAYMAN
Resolution of the Sole Shareholder of EI CAYMAN passed in
accordance with Regulation 65 of the Articles of Association of
the Company.
RESOLVED that the following resolution be and it is hereby passed
as a Special Resolution of the Company:
"That the name of the Company be changed from EI CAYMAN to
EI INTERNATIONAL."
Dated this 10 day of July, 1995.
BRUCE L. LEVY<PAGE>
Exhibit C-4
PERFORMANCE UNITS AGREEMENT UNDER
THE 1990 STOCK PLAN FOR EMPLOYEES OF
GENERAL PUBLIC UTILITIES CORPORATION
AND SUBSIDIARIES
(1995 AGREEMENT)<PAGE>
AGREEMENT made as of _______________________________, by and
between General Public Utilities Corporation (the "Corporation")
and ______________________________ (the "Recipient"):
WHEREAS, the Corporation maintains the 1990 Stock Plan for
Employees of General Public Utilities Corporation and
Subsidiaries (the "Plan") under which the Personnel, Compensation
and Nominating Committee of the Corporation's Board of Directors
(the "Committee") may, among other things, award units
("Performance Units") representing rights to acquire shares of
the Corporation's Common Stock, $2.50 par value ("Common Stock")
to such employees of the Corporation and its subsidiaries as the
Committee may determine, subject to such terms, conditions or
restrictions as it may deem appropriate;
WHEREAS, pursuant to the Plan, the Committee has granted to the
Recipient an award of Performance Units subject to the terms and
conditions set forth in this Agreement; and
WHEREAS, the Plan requires that an award of Performance Units be
evidenced by a written agreement between the Corporation and the
Recipient that contains such restrictions, terms and conditions
as the Committee may require;
NOW, THEREFORE, the parties hereto agree as follows:
1. AWARD OF PERFORMANCE UNITS; NATURE OF RIGHTS
(a) In accordance with the provisions of the Plan, the
Committee awarded to the Recipient on _________________
(the "Award Date") __________ Performance Units. Each
unit so awarded, and each additional Performance Unit
credited to the Recipient pursuant to Section 2 (the
Performance Units so awarded and the additional
Performance Units so credited are hereinafter referred
to collectively as the Recipient's "Units"), shall
entitle the Recipient, upon the vesting of such units
as provided in Section 3 hereof, to receive one share
of Common Stock, or a cash payment in lieu of such
share, subject to the terms, conditions, and
restrictions set forth herein.
(b) Prior to the issuance, as provided in Section 4
hereof, of shares of Common Stock with respect to the
Recipient's Units, or with respect to the Recipient's
"Deferred Vested Units" as defined in Section 4(g)(ii)
hereof, the Recipient shall not be entitled to any of
the rights of a stockholder of the Corporation by
reason of such Units or Deferred Vested Units.<PAGE>
(c) Notwithstanding anything in this Agreement to the
contrary, the Recipient shall have the status of a mere
unsecured creditor of the Corporation with respect to
his or her right to receive any payment hereunder; and
this Agreement shall constitute a mere promise by the
Corporation to make payments in the future in
accordance with the terms hereof. It is the intention
of the parties hereto that the arrangements set forth
in this Agreement be treated as unfunded for tax
purposes and, if it should be determined that Title I
of ERISA is applicable to such arrangements, for
purposes of Title I of ERISA.
2. ADDITIONAL PERFORMANCE UNITS
(a) As of each date prior to the Vesting Date (as
defined in Section 3(a) below) on which a dividend is
paid on the Common Stock ("Dividend Payment Date"),
there shall be credited to the Recipient hereunder a
number of additional Performance Units determined by
multiplying (i) the aggregate number of Units standing
to the Recipient's credit immediately prior to such
Dividend Payment Date, by (ii) the quotient resulting
from dividing (A) the per share amount of the dividend
so paid by (B) the price per share used for the
reinvestment of dividends paid on such Dividend Payment
Date under the provisions of the Corporation's Dividend
Reinvestment and Stock Purchase Plan.
(b) Any additional Performance Units credited to the
Recipient pursuant to this Section 2 shall be subject
to the same terms, conditions and restrictions as are
applicable with respect to the Recipient's initially
awarded Performance Units.
3. ADJUSTMENT AND VESTING OF UNITS
(a) For purposes of this Agreement, the Recipient's
"Vesting Date" shall mean the earliest to occur of the
following dates:
(i) the fifth anniversary of the Award Date, if
the Recipient's employment with the Corporation or
any subsidiary has not terminated before such
anniversary for any reason other than as a result
of the Recipient's "Eligible Retirement" or "Total
Disability", as defined in the Plan;
(ii) the date as of which the Recipient's
employment with the Corporation or any subsidiary
terminates as a result of the Recipient's death;
or<PAGE>
(iii) an "Acceleration Date," as defined in the
Plan.
(b) As of the Recipient's Vesting Date, the aggregate
number of Units then standing to the Recipient's credit
shall be adjusted in accordance with the following
provisions:
(i) The aggregate number of the Recipient's
Units shall be adjusted by multiplying such
aggregate number by the Performance Percentage
determined pursuant to the following table:
If the Corporation's
TSR Percentile The Performance
Ranking is in the: Percentage shall be:
90th percentile - or above 200%
85th to 89th 175
80th to 84th 160
75th to 79th 145
70th to 74th 130
65th to 69th 120
60th to 64th 110
55th to 59th 100
50th to 54th 90
45th to 49th 75
40th to 44th 50
below 40th 0
For purposes of the foregoing, the Corporation's
TSR Percentile Ranking shall be determined by
(A) ascertaining, for each company (including the
Corporation) included in the Standard & Poor's
Electric Utility Companies Index (the "Index") on
the last day of the Performance Period (as defined
below), such company's average quarterly total
shareholder return ("TSR") for all calendar
quarters in the Performance Period, as reported in
the Index; (B) ascertaining the number of such
companies whose average quarterly TSR for the
Performance Period is lower than the
Corporation's; and (C) dividing such number by the
total number of companies included in the Index on
such last day. The "Performance Period shall mean
the period from January 1, 1995 through December
31, 1999.<PAGE>
(ii) Notwithstanding the foregoing, (A) if the
Recipient's Vesting Date occurs by reason of the
Recipient's death prior to the first day of the
calendar year which includes the fifth anniversary
of the Award Date, the Recipient's Units shall not
be adjusted in the manner described in
subparagraph (i) above; and (B) if the Recipient's
Vesting Date occurs by reason of an Acceleration
Date's occurring prior to such first day, the
adjustment with respect to the Recipient's Units
required under subparagraph (i) above shall be
made using 200% as the applicable Performance
Percentage.
(iii) If the Recipient's employment with the
Corporation or any subsidiary terminates prior to
the fifth anniversary of the Award Date as a
result of the Recipient's death, Eligible
Retirement or Total Disability, the number of
Units standing to the Recipient's credit as of the
Recipient's Vesting Date (after taking into
account any adjustment required under subparagraph
(i) above) shall be adjusted (or further adjusted)
by multiplying such number of Units by the
Recipient's Service Percentage. The Recipient's
"Service Percentage" shall mean the percentage
determined by dividing by 60 the number of months
in the period beginning on the Award Date and
ending on the date of such termination of the
Recipient's employment; and for this purpose, any
fraction of a month included in such period shall
be treated as a full month. This subparagraph
(iii) shall not apply if the Recipient's Vesting
Date occurs by reason of the occurrence of an
Acceleration Date.
(c) As of the Recipient's Vesting Date, all Units then
standing to the Recipient's credit (after taking into
account any adjustments required under subparagraphs
(i), (ii) and (iii) of paragraph (b) above) shall
become vested. If the number of Units standing to the
Recipient's credit immediately prior to any adjustments
made pursuant to subparagraphs (i), (ii) and (iii) of
paragraph (b) above exceed the number of Units standing
to the Recipient's credit after giving effect to such
adjustments, all of the Recipient's rights with respect
to such excess number of Units shall be forfeited as of
the Vesting Date. If the Recipient's employment with
the Corporation or any subsidiary should terminate
before the Recipient's Vesting Date for any reason
other than as a result of the Recipient's Eligible
Retirement or Total Disability, all of the Recipient's
rights with respect to any Units credited to the
Recipient hereunder shall be forfeited as of the date
of such termination.<PAGE>
(d) For purposes of this Agreement, (i) the term
"subsidiary" shall have the same meaning as in
paragraph 4(a) of the Plan and (ii) the transfer of a
Recipient's employment from one subsidiary to another
shall not be treated as a termination of the
Recipient's employment.
4. PAYMENT FOR VESTED UNITS
(a) Upon the Vesting Date, the Recipient shall become
entitled to receive payment with respect to the Units
which have become vested on such date (such Units are
hereafter referred to as the Recipient's "Vested
Units"). Payment shall be made as soon as practicable
after the Vesting Date, in the manner hereinafter set
forth in this Section 4.
(b) Except as otherwise provided in paragraph
(c) below, payment with respect to the Recipient's
Vested Units shall be made by the issuance to the
Recipient of shares of Common Stock. Except as
otherwise provided in paragraph (d) (ii) below, one
share of Common Stock shall be issued for each of the
Recipient's Vested Units. The Recipient shall own any
shares of Common Stock so issued free and clear of any
restrictions and shall be free to hold or dispose of
such shares at will, subject, however, to the
restriction provided in paragraph 9(b)(ii) of the Plan
and any other restriction that may be imposed by law.
(c) The Committee, in its sole discretion, may
determine that payment with respect to any or all of
the Recipient's Vested Units shall be made in cash
instead of in shares of Common Stock, and payment with
respect to any fractional part of a Vested Unit shall
be made in cash. Except as otherwise provided in
paragraph (d) (i) below, the amount of the cash payment
to be made with respect to any Vested Units shall be
equal to (and the amount of the cash payment to be made
with respect to any fractional part of a Vested Unit
shall be based upon) the per share closing price of one
share of Common Stock as reported on the New York Stock
Exchange Composite Tape for the Vesting Date, or if
there are no sales of Common Stock on such date, for
the next preceding day on which there were sales of
Common Stock.
(d) Upon the occurrence of an Acceleration Date, the
amount payable with respect to the Recipient's Vested
Units (including any Units that became vested prior to
such date but for which payment hereunder has not been
made as of such date but not including any Deferred
Vested Units as defined in Section 4(g)(ii) hereof
standing to the Recipient's credit on such date) shall
be determined as follows:<PAGE>
(i) To the extent that the payment for any of
the Recipient's Vested Units is to be made in cash
pursuant to paragraph (c) above, the amount of
cash to be paid for such Vested Units shall be
equal to the product of (A) the number of such
Vested Units, multiplied by (B) the highest
closing price per share of the Common Stock, as
reported on the New York Stock Exchange Composite
Tape, occurring during the 90-day period preceding
and the 90-day period following the Acceleration
Date (the "Multiplication Factor").
(ii) To the extent that payment for any of the
Recipient's Vested Units is to be made in shares
of Common Stock pursuant to paragraph (b) above,
the number of shares of Common Stock to be issued
with respect to such Vested Units shall be
determined by dividing (A) the product of (y) the
number of such Vested Units multiplied by (z) the
Multiplication Factor, by (B) the per share
closing price of the Common Stock as reported on
the New York Stock Exchange Composite Tape for the
day preceding the payment date, or if there are no
sales of Common Stock on such date, for the next
preceding day on which there were sales of Common
Stock.
(e) If the Recipient has died prior to the date on
which any payment is to be made hereunder with respect
to the Recipient's Vested Units or Deferred Vested
Units, the payment otherwise required to be made to the
Recipient shall be made to the Recipient's beneficiary
or estate, as the case may be.
(f) Notwithstanding any provision herein to the
contrary, any payment required to be made with respect
to the Recipient's Vested Units (but not including any
Deferred Vested Units standing to the Recipient's
credit hereunder) as a result of or following the
occurrence of an Acceleration Date shall be made as
soon as practicable after such date but in the case of
any cash payment to an Officer Participant (as defined
in the Plan) no less than six months following the
Award Date.
(g) Notwithstanding any other provisions of this
Section 4 to the contrary, payment with respect to part
or all of the Recipient's Vested Units shall be
deferred, and shall be made at the time and in the
manner hereinafter set forth, if the Recipient so
elects in accordance with the following provisions:<PAGE>
(i) An election by the Recipient hereunder shall
be made in writing, on a form furnished to the
Recipient for such purpose by the Committee. The
form shall be filed with the Committee at least
one year prior to the Vesting Date.
(ii) In the Recipient's election form, the
Recipient shall specify the number of Vested Units
payment with respect to which the Recipient wishes
to defer (such number, and the number of
additional units credited to the Recipient
pursuant to subparagraph (vi) below are
hereinafter collectively referred to as the
Recipient's "Deferred Vested Units"); the date on
which payment with respect to the Recipient's
Deferred Vested Units shall be made, or commence
(the "Payment Commencement Date") in accordance
with subparagraph (iii) below; and the method by
which payment with respect to the Recipient's
Deferred Vested Units shall be made (the "Payment
Method") in accordance with subparagraph (iv)
below.
(iii) The Recipient may select, as the Payment
Commencement Date, the first business day of any
of the following: (A) the third calendar year
following the calendar year in which the Vesting
Date occurs, or any later calendar year; (B) the
earlier of (x) any calendar year which the
Recipient is permitted to select under clause (A),
or (y) the calendar year following the later of
the Vesting Date or the date of the termination of
the Recipient's employment with the Corporation or
any subsidiary or the Recipient's Total
Disability; or (C) the calendar year following the
later of the Vesting Date or the date of the
termination of the Recipient's employment with the
Corporation or any subsidiary or the Recipient's
Total Disability, or any later calendar year.
(iv) The Recipient may select, as the Payment
Method, either (A) a single lump sum payment, or
(B) payment in annual installments, over a period
of at least five years, or such greater number of
years as the Recipient specifies in the
Recipient's election form. With each such annual
installment, payment shall be made with respect to
a number of the Recipient's Deferred Vested Units
equal to the quotient resulting from dividing (C)
the total number of Deferred Vested Units standing
to the Recipient's credit hereunder on the
applicable payment date, by (D) the number of
installment payments remaining to be made on such
date. Immediately after each annual installment
payment has been made, the number of Deferred <PAGE>
Vested Units standing to the Recipient's credit
hereunder shall be reduced by the number of
Deferred Vested Units with respect to which such
payment was made.
(v) Any election made hereunder by the Recipient
shall be irrevocable.
(vi) Until payment has been made with respect to
all of the Recipient's Deferred Vested Units
(including those credited to the Recipient under
this subparagraph), there shall be credited to the
Recipient hereunder, as of each Dividend Payment
Date, a number of additional Deferred Vested Units
determined by multiplying (A) the number of
Deferred Vested Units (including any additional
Deferred Vested Units previously credited to the
Recipient under this subparagraph) standing to the
Recipient's credit hereunder on the day
immediately preceding such Dividend Payment Date,
by (B) the quotient referred to in Section
2(a)(ii) hereof.
(vii) Payment with respect to the Recipient's
Deferred Vested Units shall be made in cash, or in
shares of Common Stock, or in any combination of
cash or such shares, as the Committee shall
determine in its sole discretion. The amount of
the cash payment to be made with respect to any
Deferred Vested Units shall be equal to (and with
respect to any fractional part of a Deferred
Vested Unit, shall be based upon) the per share
closing price of one share of Common Stock as
reported on the New York Stock Exchange Composite
Tape for the last business day immediately
preceding the date on which such cash payment is
to be made.
(viii) A deferral election otherwise permitted to
be made hereunder shall be subject to the
following limitations:
(A) If the Recipient's Vesting Date should
occur within one year following the date on
which the Recipient's election form is filed
with the Committee, or if the Vesting Date
occurs more than one year from such date but
occurs as a result of the occurrence of an
Acceleration Date, the Recipient's deferral
election shall not be given effect, and
payment with respect to the Recipient's
Vested Units shall be made in accordance
with the other applicable provisions of this
Section 4.<PAGE>
(B) No deferral election shall be effective
hereunder if at any time during the 12-month
period ending on the Vesting Date, the
Recipient received a hardship withdrawal
under Section 7.1(e) of the General Public
Utilities Corporation and Subsidiary System
Companies Employee Savings Plan for
Nonbargaining Employees.
(C) No amount may be deferred with respect
to the Recipient's Vested Units pursuant to
the Recipient's deferral election hereunder
to the extent that any tax is required to be
withheld with respect to such amount
pursuant to applicable federal, state or
local law.
(ix) Notwithstanding any other provision in this
paragraph (g) to the contrary, to the extent the
Committee in its sole discretion so determines,
payment with respect to any part or all of the
Recipient's Deferred Vested Units may be made to
the Recipient or to the Recipient's beneficiary or
estate, on any date earlier than the date on which
such payment is to be made pursuant to the
Recipient's election hereunder, in the following
circumstances: (A) in the event of the Recipient's
death prior to the Payment Commencement Date
specified in the Recipient's election hereunder;
(B) in the event the Recipient becomes entitled to
receive payments under the Long-Term Disability
Plan or Employee Pension Plan of any GPU System
Company as a result of incurring a Total
Disability; and (C) in the event the Recipient
requests such early payment and the Committee, in
its sole discretion, determines that such early
payment is necessary to help the Recipient meet
some severe financial need arising from
circumstances which were beyond the Recipient's
control and which were not foreseen by the
Recipient at the time of the Recipient's election
hereunder.
5. WITHHOLDING TAXES
In connection with the issuance of any Common Stock or
the making of any cash payment in accordance with the
provisions of this Agreement, the Corporation shall
withhold the taxes then required by applicable federal,
state and local law to be so withheld. In lieu
thereof, the Corporation may require the Recipient (or,
in the event of the Recipient's death, the Recipient's
beneficiary or estate) to pay to the Corporation an
amount equal to the amount of taxes so required to be
withheld. Such payment to the Corporation shall be <PAGE>
made in cash, in shares of Common Stock with a market
value equal to such withholding obligation, or in any
combination thereof, as determined by the Committee.
6. ADMINISTRATION
(a) The Committee shall have full authority and sole
discretion (subject only to the express provisions of
the Plan) to decide all matters relating to the
administration and interpretation of the Plan and this
Agreement. All such Committee determinations shall be
final, conclusive, and binding upon the Corporation,
the Recipient, the Recipient's estate and any and all
other interested parties. Notwithstanding the
foregoing, any determination made by the Committee
after the occurrence of a "Change in Control" (as
defined in the Plan) shall be subject to judicial
review under a "de novo" rather than a deferential
standard. The Recipient hereby acknowledges receipt of
the Corporation's Prospectus which includes the text of
the Plan.
(b) This Agreement shall be subject to the terms of
the Plan, and in the case of any inconsistency between
the Plan and this Agreement, the provisions of the Plan
shall govern.
7. NONASSIGNABILITY
The Recipient's rights to payments under this Agreement
shall not be subject in any manner to anticipation,
alienation, sale, transfer (other than transfer by will
or by the laws of descent and distribution),
assignment, pledge, encumbrance, attachment or
garnishment by the Recipient's creditors or the
creditors of the Recipient's spouse or any other
beneficiary.
8. RIGHT TO CONTINUED EMPLOYMENT
Nothing in the Plan or this Agreement shall confer on
the Recipient any right to continue as an employee of
the Corporation or any subsidiary or in any way affect
the Corporation or any subsidiary's right to terminate
the Recipient's employment at any time.
9. FORCE AND EFFECT
The various provisions of this Agreement are severable
in their entirety. Any determination of invalidity or
unenforceability of any one provision shall have no
effect on the continuing force and effect of the
remaining provisions.<PAGE>
10. PREVAILING LAWS
This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania applicable to contracts
made, and to be enforced, within the Commonwealth of
Pennsylvania.
11. SUCCESSORS
This Agreement shall be binding upon and inure to the
benefit of the successors, assigns and heirs of the
respective parties.
12. NOTICE
Any notice to the Corporation hereunder shall be in
writing addressed to:
Vice President, Human Resources
GPU Service Corporation
100 Interpace Parkway
Parsippany, NJ 07054
Any notice to the Recipient hereunder shall be in
writing addressed to:
or such other address as the Recipient shall specify to
the Corporation in writing.
13. ENTIRE AGREEMENT
This Agreement contains the entire understanding of the
parties and shall not be modified or amended except in
writing and duly signed by each of the parties hereto.
No waiver by either party of any default under this
Agreement shall be deemed a waiver of any later default
set forth above.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, as of the date set forth above.
GENERAL PUBLIC UTILITIES CORPORATION
By:
James R. Leva
Chairman, President and Chief
Executive Officer
(Recipient)<PAGE>
Exhibit C-5
INCENTIVE COMPENSATION PLAN FOR ELECTED OFFICERS OF
GENERAL PUBLIC UTILITIES SERVICE CORPORATION
(AS AMENDED AND RESTATED JANUARY 1, 1995)
1. Purpose.
The purpose of the Incentive Compensation Plan for
Elected Officers of General Public Utilities Service Corporation
(the "Plan") is to attract and retain highly qualified employees,
to obtain from each the best possible performance, and to
underscore the importance to them of achieving particular
business objectives established for General Public Utilities
Service Corporation and its affiliates.
2. Definitions.
For the purposes of the Plan, the following terms shall
have the following meanings:
A. Awards. Incentive Compensation Awards made pursuant
to the Plan.
B. Board. The Board of Directors of General Public
Utilities Corporation, unless otherwise specified.
C. Chief Executive Officer. The Chief Executive
Officer of General Public Utilities Corporation.
D. Committee. The Personnel, Compensation and
Nominating Committee of the Board or any successor
thereto.
E. Corporation. General Public Utilities Service
Corporation.<PAGE>
F. Employee. An individual who was on the active
salaried payroll of the Corporation or an affiliate
of the Corporation at any time during the period for
which an Award is made.
G. Officer. An Officer of the Corporation who is
elected by the Corporation's Board of Directors and
is an Employee of the Corporation, but not including
Assistant Comptrollers, Assistant Secretaries and
Assistant Treasurers.
H. Performance Period. The fiscal year (currently
calendar) for which Awards are made.
3. Effective Date.
The effective date of the Plan is July 1, 1987.
4. Amounts Available for Awards.
A. The aggregate amount available for Awards for any
Performance Period shall be determined by the Board upon the
recommendation of the Committee.
B. No Awards shall be made for a Performance Period if
during such Performance Period no dividends were declared or paid
on shares of Common Stock of General Public Utilities
Corporation.
5. Eligibility for Awards.
A. The Chief Executive Officer shall determine the
Officers, if any, who are eligible for Awards for each <PAGE>
Performance Period, subject, in the case of Officers who are also
Officers of General Public Utilities Corporation, to the
concurrence of the Board.
B. The Chief Executive Officer may include, among
Officers eligible for Awards for a Performance Period, Officers
whose employment terminated (whether by reason of retirement,
death, disability or other cause) during such Performance Period.
6. Determination of Amounts of Awards.
The Chief Executive Officer shall determine the amounts
of Awards subject, in the case of Officers who are also Officers
of General Public Utilities Corporation, to the concurrence of
the Board, either at or following the end of the Performance
Period to which they relate. The amount of the Awards to be made
for any Performance Period shall be so determined in accordance
with the methods and procedures set forth in the GPU System
Officer Incentive Compensation Administrative Manual as in effect
for such Performance Period (the "Manual").
Notwithstanding the foregoing or any other provision
herein or in the Manual to the contrary, if a Change in Control,
as defined in Section 7(c) of the 1990 Stock Plan for Employees
of General Public Utilities Corporation and Subsidiaries, occurs
after the close of any Performance Period but prior to the time
Awards for such Performance Period have been made, the following
provisions shall apply:
(i) each objective of the Corporation's for such
Performance Period shall be deemed to have been 100%
achieved;<PAGE>
(ii) the Corporation's Final Pool for such
Performance Period shall be deemed to be 100%, of the
Corporation's Target Pool, for such Performance Period;
(iii) each Officer who, prior to the occurrence of
such Change in Control, was determined to be eligible for an
Award for such Performance Period ("Eligible Officer") shall
be entitled to receive an Award for such Performance Period;
and
(iv) the amount of the Award to be made to each
Eligible Officer shall be determined by multiplying the
Corporation's Final Pool for the Performance Period by a
fraction the numerator of which is the amount of the
Eligible Officer's Annual Base Salary that was taken into
account in determining the Corporation's Target Pool for the
Performance Period, and the denominator of which is the
aggregate amount of the Annual Base Salaries of all Eligible
Officers so taken into account.
7. Form of Awards.
Awards shall be made in cash.
8. Payment of Awards.
Unless it has been deferred pursuant to the
Corporation's Deferred Compensation Plan for Elected Officers, an
Award shall be paid as soon as practicable after it is made, but
in any event by no later than 60 days after the date on which the
Award has been made.<PAGE>
9. Special Awards and Other Plans.
Nothing contained in the Plan shall prohibit the
Corporation from granting special performance or recognition
awards under such conditions, and in such form and manner as it
sees fit, or from establishing other incentive compensation plans
providing for the payment of incentive compensation to Employees;
provided, however, that an Officer who receives an Award under
this Plan shall not receive an award for the same Performance
Period under any other annual incentive plan.
10. Amendment and Interpretation of the Plan.
A. The Chief Executive Officer shall have the right to
amend, modify, suspend, or terminate the Plan at any time or from
time to time, provided that any amendment to Section 4, Section 6
or this Section 10.A shall be subject to the concurrence of the
Board. No amendment or termination of the Plan shall reduce or
otherwise affect an Award already made hereunder without the
consent of the Officer affected.
B. The decision of the Chief Executive Officer with
respect to any questions arising in connection with the adminis-
tration or interpretation of the Plan shall be final, conclusive
and binding. Notwithstanding the foregoing, any decision made by
the Chief Executive Officer after the occurrence of a "Change in
Control" (as defined in Section 7(c) of the 1990 Stock Plan for
Employees of General Public Utilities Corporation and
Subsidiaries) shall be subject to judicial review, under a
"de novo", rather than a deferential standard.<PAGE>
11. Miscellaneous.
A. All expenses and costs in connection with the
operation of the Plan shall be borne by the Corporation.
B. All Awards under the Plan are subject to applicable
withholding for federal, state and local taxes.
C. The Participation of any Officer in the Plan may be
terminated at any time. No promise or representation, either
express or implied, is made to any Officer with respect to con-
tinued employment, transfer or promotion because of his or her
participation in the Plan.
D. Each Officer who is a participant in the Plan shall
have the status of a general unsecured creditor of the
Corporation. The Plan shall constitute a mere promise by the
Corporation to make payments in the future of the Awards provided
for herein. It is the intention of the Corporation that the
arrangements reflected in this Plan be treated as unfunded for
tax purposes and, if it should be determined that Title I of
ERISA is applicable to such arrangements, for purposes of Title I
of ERISA.
E. An Officer's rights to payments under the Plan shall
not be subject in any manner to anticipate, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment or
garnishment by creditors of the Officer or the Officer's
beneficiary.<PAGE>
Exhibit C-6
INCENTIVE COMPENSATION PLAN FOR ELECTED OFFICERS OF
GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION
(AS AMENDED AND RESTATED JANUARY 1, 1995)
1. Purpose.
The purpose of the Incentive Compensation Plan for
Elected Officers of General Public Utilities Nuclear Corporation
(the "Plan") is to attract and retain highly qualified employees,
to obtain from each the best possible performance, and to
underscore the importance to them of achieving particular
business objectives established for General Public Utilities
Nuclear Corporation and its affiliates.
2. Definitions.
For the purposes of the Plan, the following terms shall
have the following meanings:
A. Awards. Incentive Compensation Awards made pursuant
to the Plan.
B. Board. The Board of Directors of General Public
Utilities Corporation, unless otherwise specified.
C. Committee. The Personnel, Compensation and
Nominating Committee of the Board or any successor
thereto.
D. Corporation. General Public Utilities Nuclear
Corporation.
E. Employee. An individual who was on the active
salaried payroll of the Corporation or an affiliate
of the Corporation at any time during the period for
which an Award is made.<PAGE>
F. Executive Committee. The Executive Committee of the
Board of Directors of the Corporation.
G. Officer. An Officer of the Corporation who is
elected by the Corporation's Board of Directors and
is an Employee of the Corporation, but not including
Assistant Comptrollers, Assistant Secretaries and
Assistant Treasurers.
H. Performance Period. The fiscal year (currently
calendar) for which Awards are made.
3. Effective Date.
The effective date of the Plan is July 1, 1987.
4. Amounts Available for Awards.
A. The aggregate amount available for Awards for any
Performance Period shall be determined by the Board upon the
recommendation of the Committee.
B. No Awards shall be made for a Performance Period if
during such Performance Period no dividends were declared or paid
on shares of Common Stock of General Public Utilities
Corporation.
5. Eligibility for Awards.
A. The Executive Committee shall determine the
Officers, if any, who are eligible for Awards for each
Performance Period, subject, in the case of Officers who are also
Officers of General Public Utilities Corporation, to the
concurrence of the Board.<PAGE>
B. The Executive Committee may include, among Officers
eligible for Awards for a Performance Period, Officers whose
employment terminated (whether by reason of retirement, death,
disability or other cause) during such Performance Period.
6. Determination of Amounts of Awards.
The Executive Committee shall determine the amounts of
Awards subject, in the case of Officers who are also Officers of
General Public Utilities Corporation, to the concurrence of the
Board, either at or following the end of the Performance Period
to which they relate. The amount of the Awards to be made for
any Performance Period shall be so determined in accordance with
the methods and procedures set forth in the GPU System Officer
Incentive Compensation Administrative Manual as in effect for
such Performance Period (the "Manual").
Notwithstanding the foregoing or any other provision
herein or in the Manual to the contrary, if a Change in Control,
as defined in Section 7(c) of the 1990 Stock Plan for Employees
of General Public Utilities Corporation and Subsidiaries, occurs
after the close of any Performance Period but prior to the time
Awards for such Performance Period have been made, the following
provisions shall apply:
(i) each objective of the Corporation's for such
Performance Period shall be deemed to have been 100%
achieved;
(ii) the Corporation's Final Pool for such
Performance Period shall be deemed to be 100%, of the
Corporation's Target Pool, for such Performance Period;<PAGE>
(iii) each Officer who, prior to the occurrence of
such Change in Control, was determined to be eligible for an
Award for such Performance Period ("Eligible Officer") shall
be entitled to receive an Award for such Performance Period;
and
(iv) the amount of the Award to be made to each
Eligible Officer shall be determined by multiplying the
Corporation's Final Pool for the Performance Period by a
fraction the numerator of which is the amount of the
Eligible Officer's Annual Base Salary that was taken into
account in determining the Corporation's Target Pool for the
Performance Period, and the denominator of which is the
aggregate amount of the Annual Base Salaries of all Eligible
Officers so taken into account.
7. Form of Awards.
Awards shall be made in cash.
8. Payment of Awards.
Unless it has been deferred pursuant to the
Corporation's Deferred Compensation Plan for Elected Officers, an
Award shall be paid as soon as practicable after it is made, but
in any event by no later than 60 days after the date on which the
Award has been made.
9. Special Awards and Other Plans.
Nothing contained in the Plan shall prohibit the
Corporation from granting special performance or recognition
awards under such conditions, and in such form and manner as it <PAGE>
sees fit, or from establishing other incentive compensation plans
providing for the payment of incentive compensation to Employees;
provided, however, that an Officer who receives an Award under
this Plan shall not receive an award for the same Performance
Period under any other annual incentive plan.
10. Amendment and Interpretation of the Plan.
A. The Executive Committee shall have the right to
amend, modify, suspend, or terminate the Plan at any time or from
time to time, provided that any amendment to Section 4, Section 6
or this Section 10.A shall be subject to the concurrence of the
Board. No amendment or termination of the Plan shall reduce or
otherwise affect an Award already made hereunder without the
consent of the Officer affected.
B. The decision of the Executive Committee with respect
to any questions arising in connection with the administration or
interpretation of the Plan shall be final, conclusive and
binding. Notwithstanding the foregoing, any decision made by the
Executive Committee after the occurrence of a "Change in Control"
(as defined in Section 7(c) of the 1990 Stock Plan for Employees
of General Public Utilities Corporation and Subsidiaries) shall
be subject to judicial review, under a "de novo", rather than a
deferential standard.
11. Miscellaneous.
A. All expenses and costs in connection with the
operation of the Plan shall be borne by the Corporation.
B. All Awards under the Plan are subject to applicable
withholding for federal, state and local taxes.<PAGE>
C. The Participation of any Officer in the Plan may be
terminated at any time. No promise or representation, either
express or implied, is made to any Officer with respect to con-
tinued employment, transfer or promotion because of his or her
participation in the Plan.
D. Each Officer who is a participant in the Plan shall
have the status of a general unsecured creditor of the
Corporation. The Plan shall constitute a mere promise by the
Corporation to make payments in the future of the Awards provided
for herein. It is the intention of the Corporation that the
arrangements reflected in this Plan be treated as unfunded for
tax purposes and, if it should be determined that Title I of
ERISA is applicable to such arrangements, for purposes of Title I
of ERISA.
E. An Officer's rights to payments under the Plan shall
not be subject in any manner to anticipate, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment or
garnishment by creditors of the Officer or the Officer's
beneficiary.
<PAGE>
Exhibit C-7
EMPLOYEE INCENTIVE COMPENSATION PLAN OF
GPU SERVICE CORPORATION
(Amending and Restating the former Management Incentive
Compensation Plan of GPU Service Corporation, last amended and
restated March 1, 1990. This Amendment and Restatement is dated
April 1, 1995 and is effective beginning with the 1995 Plan Year)
_____________________________________
1. Purpose
The purpose of the Employee Incentive Compensation Plan of
GPU Service Corporation (the "Plan") is to attract and retain
highly qualified employees, to obtain from each the best possible
performance, and to underscore the importance to them of
achieving particular business goals.
2. Definitions
For the purposes of the Plan, the following terms shall have
the following meanings:
A. Awards. Incentive Compensation Awards made pursuant to
the Plan. There shall be two classes of Awards --
Class I and Class II.
B. Chief Executive Officer. The Chief Executive Officer
of the Corporation.
C. Corporation. GPU Service Corporation.
D. Employee. An individual who is on the active, non-
bargaining unit payroll of the Corporation at any time
during the period for which an Award is made, and who
is not eligible for an Award under the Incentive
Compensation Plan for Elected Officers.
E. Performance Period. The fiscal year (currently
calendar) for which Awards are made.
3. Effective Date
The effective date of the Plan is January 1, 1989.
4. Amounts Available for Awards
A. The aggregate amount available for Awards for any
Performance Period shall be determined by the Chief
Executive Officer.<PAGE>
B. No Awards shall be made for a Performance Period if
during such Performance Period no dividends were
declared or paid on shares of Common Stock of General
Public Utilities Corporation.
5. Eligibility for Awards
A. The Chief Executive Officer shall determine the
Employees, if any, who are eligible for Awards for each
Performance Period. The Chief Executive Officer shall
determine which Employees are eligible to receive Class
I or Class II Awards.
B. The Chief Executive Officer may include among Employees
eligible for Awards for a Performance Period,
Employees whose employment terminated (whether by
reason of retirement, death, disability or other cause)
during such Performance Period.
6. Determination of Amounts of Awards
The Chief Executive Officer shall determine the amounts of
Awards either at or following the end of the Performance
Period to which they relate. The amount of the Awards to be
made for any Performance Period shall be so determined in
accordance with the methods and procedures set forth in the
GPU System Management Incentive Compensation Administrative
Manual or its successor, the GPU System Employee Incentive
Compensation Plan Administrative Manual as in effect for
such Performance Period (the "Manual").
7. Form of Awards
Awards shall be made in cash.
8. Payment of Awards
An Award shall be paid as soon as practicable after it is
made.
9. Special Awards and Other Plans
Nothing contained in the Plan shall prohibit the Corporation
from granting special performance or recognition awards
under such conditions, and in such form and manner as it
sees fit, or from establishing other incentive compensation
plans providing for the payment of incentive compensation to
Employees.
10. Amendment and Interpretation of the Plan.
A. Action to amend the Plan from time to time or to
terminate it entirely or to direct the discontinuance
of Awards either temporarily or permanently, may be
taken by the Chief Executive Officer. No amendment or
termination of the Plan shall reduce or otherwise
affect an Award already made hereunder without the
consent of the Employee affected.<PAGE>
B. The decision of the Chief Executive Officer with
respect to any questions arising in connection with the
administration or interpretation of the Plan shall be
final, conclusive and binding.
11. Miscellaneous.
A. All expenses and costs in connection with the operation
of the Plan shall be borne by the Corporation.
B. All Awards under the Plan are subject to applicable
withholding for federal, state and local taxes.
C. The Participation of any Employee in the Plan may be
terminated at any time. No promise or representation,
either express or implied, is made to any Employee
with respect to continued employment, transfer or
promotion because of his or her participation in the
Plan.<PAGE>
Exhibit C-8
EMPLOYEE INCENTIVE COMPENSATION PLAN OF
GPU NUCLEAR CORPORATION
(Amending and Restating the former Management Incentive
Compensation Plan of GPU Nuclear Corporation, last amended and
restated March 1, 1990. This Amendment and Restatement is dated
April 1, 1995 and is effective beginning with the 1995 Plan Year)
_____________________________________
1. Purpose
The purpose of the Employee Incentive Compensation Plan of
GPU Nuclear Corporation (the "Plan") is to attract and retain
highly qualified employees, to obtain from each the best possible
performance, and to underscore the importance to them of
achieving particular business goals.
2. Definitions
For the purposes of the Plan, the following terms shall have
the following meanings:
A. Awards. Incentive Compensation Awards made pursuant to
the Plan. There shall be two classes of Awards --
Class I and Class II.
B. Chairman. The Chairman of the Board of the
Corporation.
C. President. The President of the Corporation.
D. Corporation. GPU Nuclear Corporation.
E. Employee. An individual who is on the active, non-
bargaining unit payroll of the Corporation at any time
during the period for which an Award is made, and who
is not eligible for an Award under the Incentive
Compensation Plan for Elected Officers.
F. Performance Period. The fiscal year (currently
calendar) for which Awards are made.
3. Effective Date
The effective date of the Plan is January 1, 1989.<PAGE>
4. Amounts Available for Awards
A. The aggregate amount available for Awards for any
Performance Period shall be determined by the Chairman
and the President.
B. No Awards shall be made for a Performance Period if during
such Performance Period no dividends were declared or paid
on shares of Common Stock of General Public Utilities
Corporation.
5. Eligibility for Awards
A. The President shall determine the Employees, if any, who
are eligible for Awards for each Performance Period.
The President shall determine which Employees are eligible
to receive Class I or Class II Awards.
B. The President may include among Employees eligible for
Awards for a Performance Period, Employees whose employment
terminated (whether by reason of retirement, death,
disability or other cause) during such Performance Period.
6. Determination of Amounts of Awards
The President shall determine the amounts of Awards either
at or following the end of the Performance Period to which
they relate. The amount of the Awards to be made for any
Performance Period shall be so determined in accordance
with the methods and procedures set forth in the GPU System
Management Incentive Compensation Plan Administrative
Manual or its successor, the GPU System Employee Incentive
Compensation Plan Administrative Manual, as in effect for
such Performance Period (the "Manual").
7. Form of Awards
Awards shall be made in cash.
8. Payment of Awards
An Award shall be paid as soon as practicable after it
is made.
<PAGE>
9. Special Awards and Other Plans
Nothing contained in the Plan shall prohibit the Corpor-
ation from granting special performance or recognition
awards under such conditions, and in such form and manner
as it sees fit, or from establishing other incentive
compensation plans providing for the payment of incentive
compensation to Employees.
10. Amendment and Interpretation of the Plan.
A. Action to amend the Plan from time to time or to
terminate it entirely or to direct the discontin-
uance of Awards either temporarily or permanently,
may be taken by the Chairman. No amendment or
termination of the Plan shall reduce or otherwise
affect an Award already made hereunder without
the consent of the Employee affected.
B. The decision of the Chairman and the President
with respect to any questions arising in connection
with the administration or interpretation of the
Plan shall be final, conclusive and binding.
11. Miscellaneous.
A. All expenses and costs in connection with the
operation of the Plan shall be borne by the
Corporation.
B. All Awards under the Plan are subject to
applicable withholding for federal, state and
local taxes.
C. The Participation of any Employee in the Plan may
be terminated at any time. No promise or represen-
tation, either express or implied, is made to any
Employee with respect to continued employment,
transfer or promotion because of his or her part-
icipation in the Plan.
<PAGE>
Exhibit C-9
GPU SERVICE CORPORATION
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
As Amended, Effective January 1, 1995
December 29, 1995<PAGE>
TABLE OF CONTENTS
Page
Foreword 1
Section 1 - Definitions 2
Section 2 - Application and Basis of the Plan 4
Section 3 - Payment of Benefits 5
Section 4 - Administration 8
Section 5 - Amendment and Termination 9<PAGE>
GPU SERVICE CORPORATION
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
(As amended effective January 1, 1995)
Foreword
Effective as of January l, 1988, GPU Service Corporation (referred to in
this document as the "Company") established a supplemental pension plan
for the benefit of certain of its employees. This GPU Service Corporation
Supplemental and Excess Benefits Plan (the "Plan") is a continuation of
that plan as adopted effective January 1, 1988.
The Plan, as set forth herein, is applicable to all employees of the
Company who meet the requirements described in this Plan and who are
actively employed by the Company after January 1, 1995. The benefits of
any employee who ceased employment with the Company, by retirement, death,
or otherwise, prior to January 1, 1995 are determined in accordance with
the terms of the applicable predecessor to this Plan as in effect at the
time of such cessation of employment, except that the provisions of
section 1.10 are retroactive and apply to any employee who ceased
employment on or after January 1, 1989.
It is intended that the "excess benefits" provided under the Plan be an
"excess benefits plan" as that term is defined in Section 3(36) of the
Employee Retirement Income Security Act of 1974, and that the
"supplemental benefits" provided under the Plan be a deferred compensation
plan for "a select group of management or highly compensated employees" as
that term is used in the Employee Retirement Income Security Act of 1974.
One purpose of the Plan is to provide participants of the GPU Service
Corporation Employee Pension Plan ("Pension Plan") and their surviving
spouses with the amount of company-provided benefits that would have been
provided to them under the Pension Plan but for the limitation on benefits
imposed under Section 415 of the Internal Revenue Code.
The second purpose of the Plan is to provide elected officers and certain
other highly compensated employees of the Company and their surviving
spouses with the amount of company-provided benefits that would have been
provided to them under the Pension Plan but for the following:
(a) the limitation on Earnings for purposes of the Pension Plan
imposed by Section 401(a)(17) of such Code, and
(b) the exclusion, from Earnings under the Pension Plan, of any
compensation deferred under the Deferred Compensation Plan.
The term Company shall include Energy Initiatives, Inc.
Except to the extent otherwise indicated or inappropriate, the Pension
Plan is incorporated by reference.
1
<PAGE>
SECTION 1
Definitions
1.1 Except to the extent otherwise indicated, the definitions contained
in Section l of the Pension Plan are applicable under the Plan.
1.2 Board of Directors: The term Board of Directors shall mean the Board
of Directors of the Company.
1.3 Company: The word Company shall have the meaning indicated in the
Foreword.
1.4 Deferred Compensation Plan: The term Deferred Compensation Plan
shall mean the GPU System Companies Deferred Compensation Plan, as
adopted by the Company.
1.5 Earnings: The term Earnings shall mean an Employee's "Earnings" as
defined in Section 1.10 of the Pension Plan.
1.6 Excess Benefit: The term Excess Benefit shall mean the excess, if
any, of (i) each pension benefit which would be payable to an
Employee or to the Employee's surviving spouse under the Pension Plan
if the limitations on benefits imposed by Section 18.1 of the Pension
Plan were not applicable over (ii) each pension benefit payable under
the Pension Plan.
1.7 Incentive Compensation Plan: The term Incentive Compensation Plan
shall mean the Company's Employee Incentive Compensation Plan or its
Incentive Compensation Plan for Elected Officers or Annual Performance
Award Plan.
1.8 Pension Plan: The term Pension Plan shall have the meaning indicated
in the Foreword.
1.9 Plan: The term Plan shall have the meaning indicated in the
Foreword.
1.10 Supplemental Benefit: The term Supplemental Benefit shall mean the
excess, if any, of (i) each pension benefit that would be payable to
an Employee or to an Employee's surviving spouse under the Pension
Plan if all amounts of base compensation or Incentive Compensation
Plan awards deferred under the Deferred Compensation Plan were
included in Earnings (and if the limitations on benefits imposed by
Section 18.1 of the Pension Plan and on Earnings imposed by Section
401(a)(17) of the Internal Revenue Code were not applicable) over
(ii) the sum of (a) each pension benefit payable under the Pension
Plan and (b) any Excess Benefit payable under this Plan.
2
<PAGE>
For purposes of clause (i) of this Section 1.10, any amount of base
compensation deferred under the Deferred Compensation Plan shall be
treated as Earnings for the period in which such amount would have
been paid to the Employee in cash if the Employee had not elected to
defer such amount, and the amount of any award made to an Employee
under the Incentive Compensation Plan and deferred under the Deferred
Compensation Plan shall be treated as Earnings for the period
corresponding to the Performance Period for which such award is made
to the Employee. No amount of base compensation so deferred, and no
amount awarded under the Incentive Compensation Plan, shall be
treated as Earnings for any period other than the period determined
under the preceding sentence.
For purposes of clause (i) of this Section 1.10, the amount of any
additional years of Creditable Service determined in accordance with
Section 5.9 of the Pension Plan will be recalculated by replacing the
Employee's annual base salary rate of Earnings as of April 1, 1989 by
(a) for purposes of calculating projected Basic Pensions, the product
of (i) such rate before any reductions on account of the Deferred
Compensation Plan times (ii) 1.0 plus the target award percentage as
described under the Incentive Compensation Plan and (b) for purposes
of calculating the accumulation of contributions of 2.25% or 2.10% of
compensation, such rate before any reductions on account of the
Deferred Compensation Plan.
3
<PAGE>
SECTION 2
Application and Basis of the Plan
2.1 The Plan shall be applicable (i) in the case of the Excess Benefit,
to each Employee described in Section 2.1 of the Pension Plan and
(ii) in the case of the Supplemental Benefit, to each Employee
described in clause (i) who is an elected officer of the Company and
to each other Employee described in clause (i) who for any calendar
year has Earnings (plus any Incentive Compensation Plan awards
deferred) in excess of the amount of compensation for such year that
can be taken into account for purposes of the Pension Plan pursuant
to Section 401(a)(17) of the Code.
4
<PAGE>
SECTION 3
Payment of Benefits
3.1 The Company shall pay to each Employee to whom this Plan is
applicable, or to the surviving spouse of any such Employee, the
Excess Benefit and/or the Supplemental Benefit determined for such
Employee or surviving spouse under Sections 1.6 and 1.10 hereof.
3.2 (a) The Excess Benefit and/or Supplemental Benefit payable hereunder
to an Employee or the Employee's surviving spouse shall commence
to be paid:
(i) on the first of the month following the Employee's
retirement, if the Employee retires in accordance with
Section 3.1, 3.2, 3.3 or 3.4 of the Pension Plan,
(ii) on Normal Retirement Date, if the Employee becomes
entitled to benefits in accordance with Section 3.5 of the
Pension Plan, or
(iii) in the case of a Benefit which becomes payable hereunder
to an Employee's surviving spouse on account of the
Employee's death before the Employee has received any
Benefit payment hereunder, on the earliest date as of
which payment of such spouse's Basic Pension under the
applicable provisions of Section 9 of the Pension Plan
could commence, without regard to any election by such
spouse to defer the commencement of payment of such Basic
Pension.
(b) The Excess and/or Supplemental Benefit payable hereunder to the
Employee shall be paid in the form of a single life annuity,
unless the Employee is married on the date on which payment of
such Benefit is to commence under Section 3.2(a) above, in which
event it shall be paid in accordance with Option 2, as described
in Section 10.1 of the Pension Plan, with the Employee's spouse
as the beneficiary thereunder.
(c) Notwithstanding the preceding provisions of this Section 3.2, an
Employee may elect (i) to delay commencement of his or her
Excess and Supplemental Benefits to a specified date after the
date applicable under Section 3.2(a) but not later than the
Employee's Normal Retirement Date, or (ii) in the case of any
Employee who becomes entitled to benefits in accordance with
Section 3.5 of the Pension Plan, to accelerate commencement of
his or her Excess and Supplemental Benefits to a specified date
before the date applicable under Section 3.2(a) but not earlier
than the first day of the month immediately following his or her
55th birthday, and/or (iii) to be paid his or her Excess and
5
<PAGE>
Supplemental Benefits in any form permitted (without regard to
any requirements for spousal consent) under the Pension Plan
other than the form applicable under Section 3.2(b).
Any such election shall be made in writing, on a form furnished
to the Employee for such purpose by the Administrative
Committee. The form shall be signed by the Employee and
delivered to the Administrative Committee. An election under
this Section 3.2(c) shall not be effective unless received by
the Administrative Committee at least twenty-four months prior
to the Employee's retirement or other termination of employment.
(d) If payment of Excess and/or Supplemental Benefits commences
earlier or later than payment of Pension Plan benefits, the
amount of the Excess and/or Supplemental Benefits to be paid
hereunder shall be determined as though payment of Pension Plan
benefits commenced on the same date as payment of such Benefits
commences, except that no increase in the dollar limitation of
section 415(b)(1)(A) of the Code occurring after payment of
Pension Plan benefits commences shall be taken into account.
(e) If Excess and/or Supplemental Benefits commence to be paid on or
after the date Pension Plan benefits commence to be paid, the
amount of Excess and/or Supplemental Benefits to be paid
hereunder shall be determined in accordance with the following
additional rules:
(i) determine the Employee's Excess and/or Supplemental
Benefits as though such Benefits were payable in the same
form, and with the same beneficiary, if any, as Pension
Plan benefits, and disregarding any change in marital
status occurring subsequent to the date on which payment
of Pension Plan benefits commence,
(ii) if the Employee's Pension Plan benefits are payable in
accordance with Option 1 or 2, as described in Section
10.1 of the Pension Plan, divide the amount determined in
(i) by the complement of the reduction percentage applied
to Pension Plan benefits in accordance with such Section
10.1, to convert such amount into a benefit payable in the
form of a single life annuity, and
(iii) if payment of the Employee's Excess and/or Supplemental
Benefits is to be made in a form other than as a single
life annuity, reduce the amount determined in (ii) by the
reduction percentage that would be applicable under
Section 10.1 of the Pension Plan to an annuity payable
thereunder to the Employee in the same form as the form in
which payment of the Employee's
6
<PAGE>
Excess and/or Supplemental Benefits is to be made
hereunder and with the same beneficiary.
If Excess and/or Supplemental Benefits commence to be paid
before Pension Plan benefits commence to be paid, the
amount of such Benefits to be paid hereunder shall be
determined as though Pension Plan benefits were being paid
at the same time and in the same form as Excess and/or
Supplemental Benefits, until such time as Pension Plan
benefits commence to be paid, at which time the amount of
Excess and/or Supplemental Benefits thereafter to be paid
hereunder shall be adjusted, in a manner consistent with
the foregoing paragraph, to the extent necessary to
reflect any difference in the form of payment for the
Employee's Pension Plan benefits and the form of payment
for his or her Excess and/or Supplemental Benefits.
(f) In determining the amount of the Excess and/or Supplemental
Benefit payable hereunder to an Employee or the Employee's
surviving spouse, there shall be taken into account any increase
in the amount of the pension benefit that is payable, pursuant
to Section 6 or Section 9 of the Pension Plan, to the Employee
or his or her surviving spouse for the first 12 months during
which such pension benefit is payable.
(g) If, pursuant to Section 3.2(b) or (c) above, an Employee's
Excess and/or Supplemental Benefit is otherwise required to be
paid in the same form as Option 1 or Option 2 as described in
Section 10.1 of the Pension Plan, and if the person designated
by the Employee as his or her beneficiary for purposes of such
payment form should die at any time prior to the fifth
anniversay of the date on which the Employee's Benefits
hereunder commence to be paid (the Employee's Benefit Starting
Date), the Benefit amounts payable to the Employee hereunder
after the date of such beneficiary's death shall be equal to the
Benefit amounts that would have been payable to the Employee
hereunder after such date if such Benefit amounts had been
payable to the Employee, from his or her Benefit Starting Date,
in the form of a single life annuity.
3.3 Each Employee entitled to benefits under the Plan shall have the
status of a mere unsecured creditor of the Company. The Plan shall
constitute a mere promise by the Company to make payments in the
future of the benefits provided for herein. It is intended that the
arrangements reflected in this Plan be treated as unfunded for tax
purposes and for purposes of Title I of ERISA.
3.4 An Employee's rights to benefit payments under this Plan shall not be
subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment or garnishment by
creditors of the Employee or his or her spouse or other beneficiary.
7
<PAGE>
SECTION 4
Administration
4.1 The Plan shall be administered by an Administrative Committee.
The Administrative Committee shall consist of such persons as
the Company from time to time may appoint to serve thereon.
Action to appoint or remove members of the Committee may be
taken by the Company either by resolution duly adopted by its
Board of Directors, or by an instrument in writing executed by
an officer of the Company to whom authority to appoint or remove
members of the Committee has been delegated pursuant to a
resolution duly adopted by the Company's Board of Directors.
4.2 The Administrative Committee shall have the power to interpret the
Plan, to decide all questions that may arise as to the contruction or
application of any of its provisions, and make all determinations as
to the rights of Employees or other persons to benefits under the
Plan. Any determination made by the Administrative Committee prior
to a "Change in Control", as defined in Section 7(c) of the 1990
Stock Plan for Employees of General Public Utilities Corporation and
Subsidiaries, as to the interpretation, construction or application
of the Plan, or as to the rights of any Employee or other persons to
benefits under the Plan, shall be conclusive and binding on all
parties. Any such determination made by the Administrative Committee
after the occurrence of a Change in Control that denies, in whole or
in part, any claim made by any individual for benefits hereunder
shall be subject to judicial review, under a "de novo", rather than a
deferential, standard.
4.3 Each member of the Administrative Committee shall be indemnified and
held harmless by the Company for any liability or loss (including
legal fees or other expenses of litigation) arising out of or in
connection with his or her services to the Plan in such capacity, to
the extent that such liability or loss (a) is not insured against
under any applicable policy of insurance (whether or not maintained
by the Company) and (b) is not determined to be due to the gross
negligence or willful misconduct of such member or other person.
8
<PAGE>
SECTION 5
Amendment and Termination
5.1 Subject to Section 5.3, the Company may amend the Plan at any time.
Any such amendment may be made with retroactive effect to the extent
not prohibited by law.
Action to amend the Plan may be taken by the Company either by
resolution duly adopted by the Company's Board of Directors, or by an
instrument in writing executed by an officer of the Company to whom
authority to adopt or approve amendments to the Plan has been
delegated pursuant to a resolution duly adopted by the Company's
Board of Directors.
5.2 Subject to the provisions of Section 5.3, the Plan may be terminated
at any time by the Board of Directors.
5.3 Notwithstanding the provisions of Sections 5.1 and 5.2, (a) no
amendment to or termination of the Plan shall impair any rights to
benefits which have accrued hereunder, and (b) after a "Change in
Control", as defined in Section 7(c) of the 1990 Stock Plan for
Employees of General Public Utilities Corporation and Subsidiaries,
no amendment may be made to Section 4.2 of this Plan without the
written consent of two-thirds in number of the Employees with respect
to whom any benefits have accrued thereunder.
9
<PAGE>
Exhibit C-10
GPU NUCLEAR CORPORATION
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
As Amended, Effective January 1, 1995
December 29, 1995<PAGE>
TABLE OF CONTENTS
Page
Foreword 1
Section 1 - Definitions 2
Section 2 - Application and Basis of the Plan 4
Section 3 - Payment of Benefits 5
Section 4 - Administration 9
Section 5 - Amendment and Termination 10<PAGE>
GPU NUCLEAR CORPORATION
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
(As amended effective January 1, 1995)
Foreword
Effective as of January l, 1988, GPU Nuclear Corporation (referred to in
this document as the "Company") established a supplemental pension plan
for the benefit of certain of its employees. This GPU Nuclear Corporation
Supplemental and Excess Benefits Plan (the "Plan") is a continuation of
that plan as adopted effective January 1, 1988.
The Plan, as set forth herein, is applicable to all employees of the
Company who meet the requirements described in this Plan and who are
actively employed by the Company after January 1, 1995. The benefits of
any employee who ceased employment with the Company, by retirement, death,
or otherwise, prior to January 1, 1995 are determined in accordance with
the terms of the applicable predecessor to this Plan as in effect at the
time of such cessation of employment, except that the provisions of
section 1.10 are retroactive and apply to any employee who ceased
employment on or after January 1, 1989.
It is intended that the "excess benefits" provided under the Plan be an
"excess benefits plan" as that term is defined in Section 3(36) of the
Employee Retirement Income Security Act of 1974, and that the
"supplemental benefits" provided under the Plan be a deferred compensation
plan for "a select group of management or highly compensated employees" as
that term is used in the Employee Retirement Income Security Act of 1974.
One purpose of the Plan is to provide participants of the GPU Nuclear
Corporation Employee Pension Plan ("Pension Plan") and their surviving
spouses with the amount of company-provided benefits that would have been
provided to them under the Pension Plan but for the limitation on benefits
imposed under Section 415 of the Internal Revenue Code.
The second purpose of the Plan is to provide elected officers and certain
other highly compensated employees of the Company and their surviving
spouses with the amount of company-provided benefits that would have been
provided to them under the Pension Plan but for the following:
(a) the limitation on Earnings for purposes of the Pension Plan
imposed by Section 401(a)(17) of such Code, and
(b) the exclusion, from Earnings under the Pension Plan, of any
compensation deferred under the Deferred Compensation Plan.
Except to the extent otherwise indicated or inappropriate, the Pension
Plan is incorporated by reference.
1
<PAGE>
SECTION 1
Definitions
1.1 Except to the extent otherwise indicated, the definitions contained
in Section l of the Pension Plan are applicable under the Plan.
1.2 Board of Directors: The term Board of Directors shall mean the Board
of Directors of the Company.
1.3 Company: The word Company shall have the meaning indicated in the
Foreword.
1.4 Deferred Compensation Plan: The term Deferred Compensation Plan
shall mean the GPU System Companies Deferred Compensation Plan, as
adopted by the Company.
1.5 Earnings: The term Earnings shall mean an Employee's "Earnings" as
defined in Section 1.10 of the Pension Plan.
1.6 Excess Benefit: The term Excess Benefit shall mean the excess, if
any, of (i) each pension benefit which would be payable to an
Employee or to the Employee's surviving spouse under the Pension Plan
if the limitations on benefits imposed by Section 18.1 of the Pension
Plan were not applicable over (ii) each pension benefit payable under
the Pension Plan.
1.7 Incentive Compensation Plan: The term Incentive Compensation Plan
shall mean the Company's Employee Incentive Compensation Plan or its
Incentive Compensation Plan for Elected Officers.
1.8 Pension Plan: The term Pension Plan shall have the meaning indicated
in the Foreword.
1.9 Plan: The term Plan shall have the meaning indicated in the
Foreword.
1.10 Supplemental Benefit: The term Supplemental Benefit shall mean the
excess, if any, of (i) each pension benefit that would be payable to
an Employee or to an Employee's surviving spouse under the Pension
Plan if all amounts of base compensation or Incentive Compensation
Plan awards deferred under the Deferred Compensation Plan were
included in Earnings (and if the limitations on benefits imposed by
Section 18.1 of the Pension Plan and on Earnings imposed by Section
401(a)(17) of the Internal Revenue Code were not applicable) over
(ii) the sum of (a) each pension benefit payable under the Pension
Plan and (b) any Excess Benefit payable under this Plan.
2
<PAGE>
For purposes of clause (i) of this Section 1.10, any amount of base
compensation deferred under the Deferred Compensation Plan shall be
treated as Earnings for the period in which such amount would have
been paid to the Employee in cash if the Employee had not elected to
defer such amount, and the amount of any award made to an Employee
under the Incentive Compensation Plan and deferred under the Deferred
Compensation Plan shall be treated as Earnings for the period
corresponding to the Performance Period for which such award is made
to the Employee. No amount of base compensation so deferred, and no
amount awarded under the Incentive Compensation Plan, shall be
treated as Earnings for any period other than the period determined
under the preceding sentence.
For purposes of clause (i) of this Section 1.10, the amount of any
additional years of Creditable Service determined in accordance with
Section 5.9 of the Pension Plan will be recalculated by replacing the
Employee's annual base salary rate of Earnings as of April 1, 1989 by
(a) for purposes of calculating projected Basic Pensions, the product
of (i) such rate before any reductions on account of the Deferred
Compensation Plan times (ii) 1.0 plus the target award percentage as
described under the Incentive Compensation Plan and (b) for purposes
of calculating the accumulation of contributions of 2.25% or 2.10% of
compensation, such rate before any reductions on account of the
Deferred Compensation Plan.
3
<PAGE>
SECTION 2
Application and Basis of the Plan
2.1 The Plan shall be applicable (i) in the case of the Excess Benefit,
to each Employee described in Section 2.1 of the Pension Plan and
(ii) in the case of the Supplemental Benefit, to each Employee
described in clause (i) who is an elected officer of the Company and
to each other Employee described in clause (i) who for any calendar
year has Earnings (plus any Incentive Compensation Plan awards
deferred) in excess of the amount of compensation for such year that
can be taken into account for purposes of the Pension Plan pursuant
to Section 401(a)(17) of the Code.
4
<PAGE>
SECTION 3
Payment of Benefits
3.1 The Company shall pay to each Employee to whom this Plan is
applicable, or to the surviving spouse of any such Employee, the
Excess Benefit and/or the Supplemental Benefit determined for such
Employee or surviving spouse under Sections 1.6 and 1.10 hereof.
3.2 (a) The Excess Benefit and/or Supplemental Benefit payable hereunder
to an Employee or the Employee's surviving spouse shall commence
to be paid:
(i) on the first of the month following the Employee's
retirement, if the Employee retires in accordance with
Section 3.1, 3.2, 3.3 or 3.4 of the Pension Plan,
(ii) on Normal Retirement Date, if the Employee becomes
entitled to benefits in accordance with Section 3.5 of the
Pension Plan, or
(iii) in the case of a Benefit which becomes payable hereunder
to an Employee's surviving spouse on account of the
Employee's death before the Employee has received any
Benefit payment hereunder, on the earliest date as of
which payment of such spouse's Basic Pension under the
applicable provisions of Section 9 of the Pension Plan
could commence, without regard to any election by such
spouse to defer the commencement of payment of such Basic
Pension.
(b) The Excess and/or Supplemental Benefit payable hereunder to the
Employee shall be paid in the form of a single life annuity,
unless the Employee is married on the date on which payment of
such Benefit is to commence under Section 3.2(a) above, in which
event it shall be paid in accordance with Option 2, as described
in Section 10.1 of the Pension Plan, with the Employee's spouse
as the beneficiary thereunder.
5
<PAGE>
(c) Notwithstanding the preceding provisions of this Section 3.2, an
Employee may elect (i) to delay commencement of his or her
Excess and Supplemental Benefits to a specified date after the
date applicable under Section 3.2(a) but not later than the
Employee's Normal Retirement Date, or (ii) in the case of any
Employee who becomes entitled to benefits in accordance with
Section 3.5 of the Pension Plan, to accelerate commencement of
his or her Excess and Supplemental Benefits to a specified date
before the date applicable under Section 3.2(a) but not earlier
than the first day of the month immediately following his or her
55th birthday, and/or (iii) to be paid his or her Excess and
Supplemental Benefits in any form permitted (without regard to
any requirements for spousal consent) under the Pension Plan
other than the form applicable under Section 3.2(b).
Any such election shall be made in writing, on a form furnished
to the Employee for such purpose by the Administrative
Committee. The form shall be signed by the Employee and
delivered to the Administrative Committee. An election under
this Section 3.2(c) shall not be effective unless received by
the Administrative Committee at least twenty-four months prior
to the Employee's retirement or other termination of employment.
(d) If payment of Excess and/or Supplemental Benefits commences
earlier or later than payment of Pension Plan benefits, the
amount of the Excess and/or Supplemental Benefits to be paid
hereunder shall be determined as though payment of Pension Plan
benefits commenced on the same date as payment of such Benefits
commences, except that no increase in the dollar limitation of
section 415(b)(1)(A) of the Code occurring after payment of
Pension Plan benefits commences shall be taken into account.
(e) If Excess and/or Supplemental Benefits commence to be paid on or
after the date Pension Plan benefits commence to be paid, the
amount of Excess and/or Supplemental Benefits to be paid
hereunder shall be determined in accordance with the following
additional rules:
(i) determine the Employee's Excess and/or Supplemental
Benefits as though such Benefits were payable in the same
form, and with the same beneficiary, if any, as Pension
Plan benefits, and disregarding any change in marital
status occurring subsequent to the date on which payment
of Pension Plan benefits commence,
6
<PAGE>
(ii) if the Employee's Pension Plan benefits are payable in
accordance with Option 1 or 2, as described in Section
10.1 of the Pension Plan, divide the amount determined in
(i) by the complement of the reduction percentage applied
to Pension Plan benefits in accordance with such Section
10.1, to convert such amount into a benefit payable in the
form of a single life annuity, and
(iii) if payment of the Employee's Excess and/or Supplemental
Benefits is to be made in a form other than as a single
life annuity, reduce the amount determined in (ii) by the
reduction percentage that would be applicable under
Section 10.1 of the Pension Plan to an annuity payable
thereunder to the Employee in the same form as the form in
which payment of the Employee's Excess and/or Supplemental
Benefits is to be made hereunder and with the same
beneficiary.
If Excess and/or Supplemental Benefits commence to be paid
before Pension Plan benefits commence to be paid, the
amount of such Benefits to be paid hereunder shall be
determined as though Pension Plan benefits were being paid
at the same time and in the same form as Excess and/or
Supplemental Benefits, until such time as Pension Plan
benefits commence to be paid, at which time the amount of
Excess and/or Supplemental Benefits thereafter to be paid
hereunder shall be adjusted, in a manner consistent with
the foregoing paragraph, to the extent necessary to
reflect any difference in the form of payment for the
Employee's Pension Plan benefits and the form of payment
for his or her Excess and/or Supplemental Benefits.
(f) In determining the amount of the Excess and/or
Supplemental Benefit payable hereunder to an Employee or
the Employee's surviving spouse, there shall be taken into
account any increase in the amount of the pension benefit
that is payable, pursuant to Section 6 or Section 9 of the
Pension Plan, to the Employee or his or her surviving
spouse for the first 12 months during which such pension
benefit is payable.
7
<PAGE>
(g) If, pursuant to Section 3.2(b) or (c) above, an Employee's
Excess and/or Supplemental Benefit is otherwise required
to be paid in the same form as Option 1 or Option 2 as
described in Section 10.1 of the Pension Plan, and if the
person designated by the Employee as his or her
beneficiary for purposes of such payment form should die
at any time prior to the fifth anniversay of the date on
which the Employee's Benefits hereunder commence to be
paid (the Employee's Benefit Starting Date'), the Benefit
amounts payable to the Employee hereunder after the date
of such beneficiary's death shall be equal to the Benefit
amounts that would have been payable to the Employee
hereunder after such date if such Benefit amounts had been
payable to the Employee, from his or her Benefit Starting
Date, in the form of a single life annuity.
3.3 Each Employee entitled to benefits under the Plan shall have the
status of a mere unsecured creditor of the Company. The Plan shall
constitute a mere promise by the Company to make payments in the
future of the benefits provided for herein. It is intended that the
arrangements reflected in this Plan be treated as unfunded for tax
purposes and for purposes of Title I of ERISA.
3.4 An Employee's rights to benefit payments under this Plan shall not be
subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment or garnishment by
creditors of the Employee or his or her spouse or other beneficiary.
8
<PAGE>
SECTION 4
Administration
4.1 The Plan shall be administered by an Administrative Committee. The
Administrative Committee shall consist of such persons as the Company
from time to time may appoint to serve thereon. Action to appoint or
remove members of the Committee may be taken by the Company either by
resolution duly adopted by its Board of Directors, or by an
instrument in writing executed by an officer of the Company to whom
authority to appoint or remove members of the Committee has been
delegated pursuant to a resolution duly adopted by the Company's
Board of Directors.
4.2 The Administrative Committee shall have the power to interpret the
Plan, to decide all questions that may arise as to the contruction or
application of any of its provisions, and make all determinations as
to the rights of Employees or other persons to benefits under the
Plan. Any determination made by the Administrative Committee prior
to a "Change in Control", as defined in Section 7(c) of the 1990
Stock Plan for Employees of General Public Utilities Corporation and
Subsidiaries, as to the interpretation, construction or application
of the Plan, or as to the rights of any Employee or other persons to
benefits under the Plan, shall be conclusive and binding on all
parties. Any such determination made by the Administrative Committee
after the occurrence of a Change in Control that denies, in whole or
in part, any claim made by any individual for benefits hereunder
shall be subject to judicial review, under a "de novo", rather than a
deferential, standard.
4.3 Each member of the Administrative Committee shall be indemnified and
held harmless by the Company for any liability or loss (including
legal fees or other expenses of litigation) arising out of or in
connection with his or her services to the Plan in such capacity, to
the extent that such liability or loss (a) is not insured against
under any applicable policy of insurance (whether or not maintained
by the Company) and (b) is not determined to be due to the gross
negligence or willful misconduct of such member or other person.
9
<PAGE>
SECTION 5
Amendment and Termination
5.1 Subject to Section 5.3, the Company may amend the Plan at any time.
Any such amendment may be made with retroactive effect to the extent
not prohibited by law.
Action to amend the Plan may be taken by the Company either by
resolution duly adopted by the Company's Board of Directors, or by an
instrument in writing executed by an officer of the Company to whom
authority to adopt or approve amendments to the Plan has been
delegated pursuant to a resolution duly adopted by the Company's
Board of Directors.
5.2 Subject to the provisions of Section 5.3, the Plan may be terminated
at any time by the Board of Directors.
5.3 Notwithstanding the provisions of Sections 5.1 and 5.2, (a) no
amendment to or termination of the Plan shall impair any rights to
benefits which have accrued hereunder, and (b) after a "Change in
Control", as defined in Section 7(c) of the 1990 Stock Plan for
Employees of General Public Utilities Corporation and Subsidiaries,
no amendment may be made to Section 4.2 of this Plan without the
written consent of two-thirds in number of the Employees with respect
to whom any benefits have accrued thereunder.
10
<PAGE>
Exhibit C-12
DEFERRED REMUNERATION PLAN FOR OUTSIDE DIRECTORS
OF GPU NUCLEAR CORPORATION
(AS AMENDED AND RESTATED EFFECTIVE SEPTEMBER 1, 1995)
1. Purpose
1.1 The purpose of this document is to set forth the
Deferred Remuneration Plan for Outside Directors, as
amended and restated effective September 1, 1995. The
Plan will be implemented by individual elections by
each Director.
2. Plan Summary
2.1 This Plan provides for deferral by Directors of all or
a portion of current Remuneration.
2.2 Funds being deferred will be credited with the
equivalent of interest in accordance with Section 6.
2.3 Each component of the deferred funds will be
distributed as follows:
(a) for a Director who elects deferral until a date or
dates following his or her Retirement, to the
Director, in accordance with his or her latest
effective election.
(b) for a Director who elects deferral until a date or
dates preceding his or her Retirement, to the
Director, in accordance with his or her initial
election; or
(c) if a Director dies before the deferred funds have
been fully distributed, to his or her designated
beneficiary, in accordance with the option in
effect for the Director under Section 7.2 for each
component except as the Board may otherwise
determine, based on the circumstances at the time
the distribution is to commence.
3. Definition of Terms
3.1 Account - refers to both Pre-Retirement and Retirement
Accounts established for Directors unless specifically
designated one or the other in the text of this Plan.<PAGE>
3.2 Board of Directors - refers to the Board of Directors
of GPUNuclear Corporation.
3.3 Committee - refers to the Personnel, Compensation and
Nominating Committee of the Board of Directors of
General Public Utilities Corporation.
3.4 Company - refers to GPUNuclear Corporation.
3.5 Director - refers to a member of the Board of
Directors who is not an employee of GPUNuclear
Corporation, GPU Corporation or any of its
subsidiaries.
3.6 Plan - refers to this Deferred Remuneration Plan for
Outside Directors as described in this document and as
it may be amended in the future.
3.7 Remuneration - refers to all cash amounts earned
during a calendar year by a Director for services
performed as a Director (including services performed
as a member of a committee of the Board of Directors),
but does not include consulting fees, reimbursement
for travel or other expenses or Company contributions
to other benefit plans.
3.8 Pre-Retirement Account - refers to the memorandum
account which shall be established and maintained for
a Director who elects, pursuant to Section 5.2, to
have payment of any portion of his or her Remuneration
for any Plan Year deferred to a date prior to his or
her Retirement. A separate Pre-Retirement Account
shall be established and maintained for the
Remuneration for each Plan Year which the Director so
elects to defer.
3.9 Retirement Account - refers to the memorandum account
which shall be established and maintained for a
Director who elects, pursuant to Section 5.2, to have
payment of any portion of his or her Remuneration for
any Plan Year deferred to a date after his or her
Retirement. All amounts deferred pursuant to elections
made on or before December 31, 1985 under the Plan by
a Director, together with all interest equivalents
earned by such election and credited to such amounts
prior to December 31, 1986, shall be treated, on or
after such date, as part of the Director's Retirement
Account.
3.10 Retirement - refers to the retirement from service on
the Board of Directors, on account of resignation,
death, or any other reason, without becoming an
employee of GPUN, GPU or any of its subsidiaries. <PAGE>
3.11 Plan Year - refers to the period October 1, 1986
through December 31, 1986; and each twelve (12) month
period from January 1 through December 31 thereafter.
4. Administration
4.1 The Board of Directors has established this Plan. The
Board of Directors may in its sole discretion modify
the provisions of the Plan from time to time, or may
terminate the entire Plan at any time. Such
modification or termination shall not affect the
rights of any participant accrued prior to such
modification or termination.
4.2 Responsibility for the ongoing administration of this
Plan rests with the Committee.
4.3 The Board may delegate the daily administration of
this Plan, including the maintenance of appropriate
records, receiving notifications, making filings, and
maintaining related documentation, to the Vice
President - Administration of GPUNuclear Corporation
and to the Vice President's staff.
4.4 All questions concerning the Plan, as well as any
dispute over accounting or administrative procedures
or interpretation of the Plan, will be resolved at the
sole discretion of the Board, except that no member of
the Board shall vote on any matter which affects that
member but not all other members of the
Board.Notwithstanding the foregoing, any determination
made by the Committee after the occurrence of a
"Change in Control", as defined in Section 7(c) of the
1990 Stock Plan for Employees of General Public
Utilities Corporation and Subsidiaries, that denies in
whole or in part any claim made by any individual for
benefits under the Plan shall be subject to judicial
review, under a "de novo", rather than a deferential,
standard.
4.5 All provisions of this Plan, its administration and
interpretation, are intended to be in compliance with
appropriate Internal Revenue Service Rulings and
judicial decisions regarding the construction and
operation of a deferred compensation program, so that
deferred Remuneration and interest equivalents thereon
will not constitute income constructively received
prior to being distributed under the terms of this
Plan.<PAGE>
4.6 A Director's election to voluntarily defer
Remuneration, selection of a distribution
commence-ment date and distribution option, and
designation of a beneficiary and contingent
beneficiary, made pursuant to this Plan shall be made
in writing, on a form furnished to the Director by the
Company for such purposes, signed and delivered
personally or by first class mail to:
Corporate Secretary
GPU Nuclear Corporation
One Upper Pond Rd.
Parsippany, New Jersey 07054
Any such election, selection, designation, or change
therein, shall not become effective unless and until
received by the Corporate Secretary. A change in a
distribution election made after April 30, 1987 will not be
effective unless made at least twenty-four (24) months
prior to his or her Retirement or Disability.
5. Deferral Election
5.1 A Director may elect to defer all or any portion of
his or her Remuneration for any Plan Year, providing
such portion is three thousand dollars ($3,000) or
more. A separate deferral election shall be made with
respect to a Director's Remuneration for each Plan
Year. An election to defer Remuneration for the 1986
amended Plan Year shall be made on or prior to
September 30. In subsequent years, the election shall
be made on or before December 31 of the year preceding
the Plan Year. Notwithstanding, the foregoing, (a)
Directors who are initially elected prior to December
1st of any Plan Year may, within 30 days of such
initial election, make a deferral election for the
then current Plan Year, and (b) Directors who are
initially elected after December 1st of any Plan Year
may immediately make a deferral election for both the
then current Plan Year and for the immediately
succeeding Plan Year; provided, however, that any
deferral election made pursuant to clause (a) or (b)
hereof shall be effective only with respect to
Remuneration earned after such election has become
effective. All elections under this Section 5.1 shall
be irrevocable.
5.2 In his or her election to defer Remuneration for any
Plan Year, a Director shall specify the amount or
portion of the Remuneration to be deferred, and shall
indicate whether the Remuneration so deferred is to be
credited to a Pre-Retirement Account, or to a
Retirement Account.<PAGE>
5.3 With respect to Remuneration deferred hereunder for a
Plan Year which a Director elects to have credited to
his or her Pre-Retirement Account, the Director shall
specify in the election form the date on which
distribution of the Pre-Retirement Account shall be
made or commence. The date so selected shall be no
earlier than 24 months from the close of the Plan
Year. In the election form for the Plan Year, the
Director shall also select an option under Section 7.2
for the distribution of the Pre-Retirement Account.
Except as provided in Section 7.4, the date so
specified, and the option so selected, may not
thereafter be changed by the Director.
5.4 With respect to any Remuneration deferred hereunder
which a Director elects to have credited to his or her
Retirement Account, the Director shall, at the time he
or she first elects to have an amount credited to that
account, also elect a distribution commencement date
and a distribution option under Section 7.2 for the
distribution of the Retirement Account. A Director
may, subject to the provisions of Section 4.6, change
any election as to the distribution commencement date
and distribution option for the Retirement Account
previously made by the Director. The distribution
commencement date so elected shall be either the first
business day of the calendar year following the
Director's Retirement, or the first business day of
any subsequent calendar year.
5.5 In the case of a Director who, prior to January 1,
1986, made a deferral election under the Plan with
respect to his or her Remuneration for the calendar
year 1986, any deferral election made by the Director
hereunder with respect to the period commencing
October 1, 1986 and ending December 31, 1986 shall be
effective, for that period, only with respect to the
excess, if any, of the amount he or she so elects to
defer for said period over the amount of Remuneration
for said period deferred pursuant to the Director's
prior election.
5.6 The amounts which are deferred, including interest
equivalents, will be credited to a Director's Account.
Prior to distribution, all amounts deferred including
interest equivalents, will constitute general assets
of the Company for use as it deems necessary, and will
be subject to the claims of the Company's creditors. A
Director shall have the status of a mere unsecured
creditor of the Company with respect to his or her
right to receive any payment under the Plan. The Plan
shall constitute a mere promise by the Company to make
payments in the future of the benefits provided for
herein. It is intended that the arrangements reflected
in this Plan be treated as unfunded for tax purposes.<PAGE>
6. Interest
Interest equivalents, compounded monthly on deposits
treated as monthly transactions, will be credited at the
end of each quarter in the calendar year. Such credit will
be made to the balance of each account maintained for a
Director hereunder, including the undistributed balance of
any such account from which payments are being made in
installments. The rate used in calculation of interest
equivalents will be no less than the rate equal to the
simple average of Citibank N.A. of New York Prime Rates for
the last business day of each of the three months in the
calendar quarter or, if greater, such other rate as
established from time to time by the Committee.
The Company may, but shall not be required to, purchase a
life insurance policy, or policies, to assist it in funding
its payment obligations under the Plan. If a policy, or
policies, is so purchased, it shall, at all times, remain
the exclusive property of the Company and subject to the
claims of its creditors. Neither the Director nor any
beneficiary or contingent beneficiary designated by him or
her shall have any interest in, or rights with respect to
such policy.
7. Distribution of Deferred Funds
7.1 A Director's Pre-Retirement Account shall be
distributed to the Director, or distributions from
such Pre-Retirement Accounts shall commence, on the
date or dates specified in the elections made by the
Director with respect to such accounts. A Director's
Retirement Account shall be distributed to the
Director, or distributions from such Retirement
Account shall commence, on the date specified in the
Director's latest effective election.
7.2 The options for distribution are:
(a) A single lump sum payment.
(b) Annual Installments over any fixed number of
years selected by the Director, with a minimum
of five annual installments required for the
Retirement Account.
(c) Other option, in equal or unequal payments, as
specifically approved by the Committee.
If distribution of a Director's Account is to be made in
annual installments under Option (b) of Section 7.2, the
amount of each installment will equal the total amount in
said Account on the date the installment is payable,
divided by the number of installments remaining to be paid.<PAGE>
In addition, if the distributions are made in installments
under Option (b) of Section 7.2, the interest equivalent
accrued on each Account each year after the date the first
installment is payable will be distributed on each
anniversary of such date.
7.3 Except as the Board may otherwise determine based on
the circumstances at the time the distribution to the
beneficiary is to commence:
(a) If a Director should die after distribution of
his/her Account maintained for the Director has
commenced, but before the entire balance has
been fully distributed, distributions will
continue to be made to the Director's designated
beneficiary or contingent beneficiary, in
accordance with the distribution option in
effect for such Account at the time of the
Director's death.
(b) If a Director should die before any distribution
from an Account maintained for the Director
hereunder has been made to him or her,
distribution to the Director's designated
beneficiary or contingent beneficiary shall be
made, or shall commence, as soon as practicable
after the Director's death, in accordance with
the distribution option in effect for such
Account at the time of the Director's death.
Amounts remaining to be paid, after the death of the
Director, to the designated beneficiary and the contingent
beneficiary, will be paid in a lump sum to the estate of
the last of such persons to die.
7.4 Notwithstanding anything herein to the contrary, any
Account maintained for a Director hereunder may be
distributed, in whole or in part, to such Director on
any date earlier than the date on which distribution
is to be made, or commence, pursuant to the Director's
election if:
(a) the Director requests early distribution, and
(b) the Board, in its sole discretion, determines
that early distribution is necessary to help the
Director meet some severe financial need arising
from circumstances which were beyond the
Director's control and which were not foreseen
by the Director at the time he or she made the
election as to the date or dates for
distribution. A request by a Director for an
early distribution shall be made in writing,
shall set forth sufficient information as to the
Director's needs for such distribution to <PAGE>
enable the Committee to take action on his or
her request, and shall be mailed or delivered to
the Company's Corporate Secretary.
8. Non-Assignment of Deferred Remuneration
8.1 A Directors's rights to payments under this Plan shall
not be subject to any manner to anticipation,
alienation, sale, transfer (other than transfer by
will or by the laws of descent and distribution, in
the absence of a beneficiary designation), assignment,
pledge, encumbrance, attachment or garnishment by
creditors of the Director or his or her spouse or
other beneficiary.
8.2 All amounts paid under the Plan, including the
interest equivalents credited to a Director's Account,
are considered to be Remuneration. The crediting of
interest equivalents is intended to preserve the value
of the Remuneration so deferred for the Director.<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 JCP&L Preferred
Capital, Inc.
By:/s/ M. A. Nalewako /s/ T. G. Howson
February 21, 1995
1<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 GPU Generation Corporation
By:/s/ M. A. Nalewako /s/ R. L. Wise
March 1, 1996
2<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 Barranquilla, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
July 10, 1995
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 Barranquilla Lease
Holding, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
August 8, 1995
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 Guaracachi America, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
July 13, 1995
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 EI Energy, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
October 19, 1995
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 Victoria Electric, Inc.
By:/s/ Kelly A. Tomblin /s/ Bruce Levy
October 19, 1995
7<PAGE>
Exhibit E-1
VENTURE DISCLOSURES
Licensing of Computer Programs
to Nonassociated Companies
Pursuant to the provisions contained in the Securities and
Exchange Commission's (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 1995 for activity related to the licensing of
computer programs to nonassociated companies.
-1-<PAGE>
Exhibit E-2
VENTURE DISCLOSURES
Operation and Maintenance Service Business
Pursuant to the provisions contained in the Securities and
Exchange Commission's (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 1995 for
activity related to Operation and Maintenance ("O & M") Service
Business.
In 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 profits were
realized in 1995 from this O & M contract since services
performed were provided on a cost-recovery basis only. No
employees of Pennsylvania Electric Company were engaged to
perform O & M services on a "regular basis".
-1-<PAGE>
Exhibit E-3
VENTURE DISCLOSURES
Fiber Optic System Lease Agreements
with Nonassociated Companies
Pursuant to the provisions contained in the Securities and
Exchange Commission's (SEC) Order dated August 2, 1994 for SEC
File No. 70-7850, the following activity is reported thereunder
related to the leasing of fiber optic cable capacity to
nonassociated companies:
Lease Agreement with MCI
(1) GPU Service Corporation (GPUSC), individually and as agent
for Jersey Central Power & Light Company (JCP&L) and
Metropolitan Edison Company (Met-Ed), entered into a
agreement to lease some portion of reserve fiber optic cable
capacity to MCI Telecommunications Corporation, 1133 19th
Street, N.W., Washington D.C. 20036
(2) The initial term of the lease agreement with MCI is for a
period of 3 1/2 years. On September 23, 1994, the initial
term of this agreement was extended through October 31,
1997.
(3) During 1995, JCP&L and Met-Ed's cumulative revenues and
expenses related to the leasing of fiber optic cable
capacity were as follows:
(In Thousands)
Revenues Expenses
JCP&L $ 289 $ 2
Met-Ed 644 72
Total $ 933 $ 74
-1-<PAGE>
Exhibit E-4
Form U-13-60
Mutual and Subsidiary Service Companies
Revised February 7, 1980
ANNUAL REPORT
FOR THE PERIOD
Beginning January 1, 1995 and Ending December 31, 1995
TO THE
U.S. SECURITIES AND EXCHANGE COMMISSION
OF
ENERGY INITIATIVES, INC.
(Exact Name of Reporting Company)
A Subsidiary Service Company
("Mutual" or "Subsidiary")
Date of Incorporation August 31, 1990 If not Incorporated, Date of
Organization
State or Sovereign Power under which Incorporated or Organized Delaware
1 Upper Pond Road
Location of Principal Executive Offices of Reporting Co. Parsippany, NJ
07054
Name, title, and address of officer to whom correspondence concerning this
report should be addressed:
1 Upper Pond Road
B. L. Levy, President and CEO Parsippany, NJ 07054
(Name) (Title) (Address)
Name of Principal Holding Company Whose Subsidiaries are served by Reporting
Company:
GENERAL PUBLIC UTILITIES CORPORATION
<PAGE>
1
INSTRUCTIONS FOR USE OF FORM U-13-60
1. Time of Filing.--Rule 94 provides that on or before the first day of
May in each calendar year, each mutual service company and each subsidiary
service company as to which the Commission shall have made a favorable finding
pursuant to Rule 88, and every service company whose application for approval
or declaration pursuant to Rule 88 is pending shall file with the Commission
an annual report on Form U-13-60 and in accordance with the Instructions for
that form.
2. Number of Copies.--Each annual report shall be filed in duplicate.
The company should prepare and retain at least one extra copy for itself in
case correspondence with reference to the report become necessary.
3. Period Covered by Report.--The first report filed by any company
shall cover the period from the date the Uniform System of Accounts was
required to be made effective as to that company under Rules 82 and 93 to the
end of that calendar year. Subsequent reports should cover a calendar year.
4. Report Format.--Reports shall be submitted on the forms prepared by
the Commission. If the space provided on any sheet of such form is
inadequate, additional sheets may be inserted of the same size as a sheet of
the form or folded to such size.
5. Money Amounts Displayed.--All money amounts required to be shown in
financial statements may be expressed in whole dollars, in thousands of
dollars or in hundred thousands of dollars, as appropriate and subject to
provisions of Regulation S-X (S210.3-01(b)).
6. Deficits Displayed.--Deficits and other like entries shall be
indicated by the use of either brackets or a parenthesis with corresponding
reference in footnotes. (Regulation S-X, S210.3-01(c))
7. Major Amendments or Corrections.--Any company desiring to amend or
correct a major omission or error in a report after it has been filed with the
Commission shall submit an amended report including only those pages,
schedules, and entries that are to be amended or corrected. A cover letter
shall be submitted requesting the Commission to incorporate the amended report
changes and shall be signed by a duly authorized officer of the company.
8. Definitions.--Definitions contained in Instruction 01-8 to the
Uniform System of Accounts for Mutual Service Companies and Subsidiary Service
Companies, Public Utility Holding Company Act of 1935, as amended February 2,
1979 shall be applicable to words or terms used specifically within this Form
U-13-60.
9. Organization Chart.--The service company shall submit with each
annual report a copy of its current organization chart.
10. Methods of Allocation.--The service company shall submit with each
annual report a listing of the currently effective methods of allocation being
used by the service company and on file with the Securities and Exchange
Commission pursuant to the Public Utility Holding Company Act of 1935.
11. Annual Statement of Compensation for Use of Capital Billed.--The
service company shall submit with each annual report a copy of the annual
statement supplied to each associate company in support of the amount of
compensation for use of capital billed during the calendar year.
<PAGE>
2
LISTING OF SCHEDULES AND ANALYSIS OF ACCOUNTS Page
Number
Description of Schedules and Accounts Schedule or Account
Number
COMPARATIVE BALANCE SHEET Schedule I 4-5
SERVICE COMPANY PROPERTY Schedule II 6-7
ACCUMULATED PROVISION FOR DEPRECIATION
AND AMORTIZATION OF SERVICE COMPANY PROPERTY Schedule III 8
INVESTMENTS Schedule IV 9-10
ACCOUNTS RECEIVABLE FROM ASSOCIATE
COMPANIES Schedule V 11
FUEL STOCK EXPENSES UNDISTRIBUTED Schedule VI 12
STORES EXPENSE UNDISTRIBUTED Schedule VII 13
MISCELLANEOUS CURRENT AND ACCRUED ASSETS Schedule VIII 14
MISCELLANEOUS DEFERRED DEBITS Schedule IX 15
RESEARCH, DEVELOPMENT, OR DEMONSTRATION
EXPENDITURES Schedule X 16
PROPRIETARY CAPITAL Schedule XI 17
LONG-TERM DEBT Schedule XII 18
CURRENT AND ACCRUED LIABILITIES Schedule XIII 19
NOTES TO FINANCIAL STATEMENTS Schedule XIV 20
COMPARATIVE INCOME STATEMENT Schedule XV 21
ANALYSIS OF BILLING - ASSOCIATE COMPANIES Account 457 22
ANALYSIS OF BILLING - NONASSOCIATE COMPANIES Account 458 23
ANALYSIS OF CHARGES FOR SERVICE - ASSOCIATE
AND NONASSOCIATE COMPANIES Schedule XVI 24
SCHEDULE OF EXPENSE BY DEPARTMENT OR
SERVICE FUNCTION Schedule XVII 25-26
DEPARTMENTAL ANALYSIS OF SALARIES Account 920 27
OUTSIDE SERVICES EMPLOYED Account 923 28
EMPLOYEE PENSIONS AND BENEFITS Account 926 29
GENERAL ADVERTISING EXPENSES Account 930.1 30
MISCELLANEOUS GENERAL EXPENSES Account 930.2 31
RENTS Account 931 32
TAXES OTHER THAN INCOME TAXES Account 408 33
DONATIONS Account 426.1 34
OTHER DEDUCTIONS Account 426.5 35
NOTES TO STATEMENT OF INCOME Schedule XVIII 36
<PAGE>
3
LISTING OF INSTRUCTIONAL FILING REQUIREMENTS Page
Number
Description of Reports or Statements
ORGANIZATION CHART 37
METHODS OF ALLOCATION 38
ANNUAL STATEMENT OF COMPENSATION FOR USE 39
OF CAPITAL BILLED
VENTURE DISCLOSURES 40
NOTE: Dollar figures in this report are shown in thousands unless otherwise
noted.
This report includes immaterial audit adjustments which were not
included in the General Public Utilities Corporation, SEC Form U5S.
<PAGE>
<TABLE>
4
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
SCHEDULE I - COMPARATIVE BALANCE SHEET
Give balance sheet of the Company as of December 31 of the current and prior year.
<CAPTION>
ACCOUNT ASSETS AND OTHER DEBITS AS OF DECEMBER 31
CURRENT PRIOR
(UNAUDITED)
SERVICE COMPANY PROPERTY
<S> <C> <C>
101 Service company property (Schedule II) $ 1 222 $ 816
107 Construction work in progress (Schedule II) - -
Total Property 1 222 816
108 Less accumulated provision for depreciation
and amortization of service company
property (Schedule III) 589 385
Net Service Company Property 633 431
INVESTMENTS
123 Investments in associate companies (Schedule IV) 65 110 78 971
124 Other investments (Schedule IV) 52 742 41 824
Total Investments 117 852 120 795
CURRENT AND ACCRUED ASSETS
131 Cash 592 772
134 Special deposits 2 983 -
135 Working funds - -
136 Temporary cash investments (Schedule IV) 2 000 -
141 Notes receivable - -
143 Accounts receivable - 523
144 Accumulated provision for uncollectible
accounts - -
146 Accounts receivable from associate
companies (Schedule V) 17 825 1 802
152 Fuel stock expenses undistributed (Schedule VI) - -
154 Materials and supplies - -
163 Stores expense undistributed (Schedule VII) - -
165 Prepayments 184 81
171 Interest Receivable - -
174 Miscellaneous current and accrued
assets (Schedule VIII) 3 695 3 000
Total Current and Accrued Assets 27 279 6 178
DEFERRED DEBITS
181 Unamortized debt expense - -
184 Clearing accounts - -
186 Miscellaneous deferred debits (Schedule IX) - -
188 Research, development, or demonstration
expenditures (Schedule X) - -
190 Accumulated deferred income taxes 2 064 1 835
Total Deferred Debits 2 064 1 835
TOTAL ASSETS AND OTHER DEBITS $147 828 $129 239
<PAGE>
5
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
SCHEDULE I - COMPARATIVE BALANCE SHEET
ACCOUNT LIABILITIES AND PROPRIETARY CAPITAL AS OF DECEMBER 31
CURRENT PRIOR
(UNAUDITED)
PROPRIETARY CAPITAL
201 Common stock issued (Schedule XI) $ 100 $ 100
211 Miscellaneous paid-in-capital (Schedule XI) 127 904 126 380
215 Appropriated retained earnings (Schedule XI) 5 336 6 641
216 Unappropriated retained earnings (Schedule XI) (4 871) (15 415)
Total Proprietary Capital 128 469 117 706
LONG-TERM DEBT
223 Advances from associate companies (Schedule XII) - -
224 Other long-term debt (Schedule XII) - 325
225 Unamortized premium on long-term debt - -
226 Unamortized discount on long-term debt-debit - -
Total Long-term Debt - 325
CURRENT AND ACCRUED LIABILITIES
231 Notes payable 1 800 300
232 Accounts payable 434 57
233 Notes payable to associate
companies (Schedule XIII) - -
234 Accounts payable to associate
companies (Schedule XIII) 822 142
236 Taxes accrued 1 463 5
237 Interest accrued - -
238 Dividends declared - -
241 Tax collections payable - -
242 Miscellaneous current and accrued
liabilities (Schedule XIII) 4 626 2 000
Total Current and Accrued Liabilities 9 145 2 504
DEFERRED CREDITS
253 Other deferred credits 4 690 2 850
255 Accumulated deferred investment tax credits - -
Total Deferred Credits 4 690 2 850
282 ACCUMULATED DEFERRED INCOME TAXES 5 524 5 854
TOTAL LIABILITIES AND PROPRIETARY
CAPITAL $147 828 $129 239
<PAGE>
6
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE II - SERVICE COMPANY PROPERTY
<CAPTION>
BALANCE AT RETIREMENTS OTHER BALANCE AT
BEGINNING ADDITIONS OR CHANGES 1/ CLOSE OF
DESCRIPTION OF YEAR SALES YEAR
SERVICE COMPANY PROPERTY
Account
<S> <C> <C> <C> <C> <C>
301 ORGANIZATION
303 MISCELLANEOUS
INTANGIBLE PLANT
304 LAND AND LAND RIGHT
305 STRUCTURES AND
IMPROVEMENTS
306 LEASEHOLD
IMPROVEMENTS $171 $ 95 $ - $ - $ 266
307 EQUIPMENT 2/
308 OFFICE FURNITURE
AND EQUIPMENT 645 311 - - 956
309 AUTOMOBILES, OTHER
VEHICLES AND
RELATED GARAGE
EQUIPMENT
310 AIRCRAFT AND
AIRPORT EQUIPMENT
311 OTHER SERVICE
COMPANY PROPERTY 3/
SUB-TOTAL 816 406 - - 1,222
107 CONSTRUCTION WORK
IN PROGRESS 4/
TOTAL $816 $406 $ - $ - $ 1,222
1/ PROVIDE AN EXPLANATION OF THOSE CHANGES CONSIDERED MATERIAL:
<PAGE>
7
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE II - CONTINUED
2/ SUBACCOUNTS ARE REQUIRED FOR EACH CLASS OF EQUIPMENT OWNED. THE SERVICE
COMPANY SHALL PROVIDE A LISTING BY SUBACCOUNT OF EQUIPMENT ADDITIONS
DURING THE YEAR AND THE BALANCE AT THE CLOSE OF THE YEAR:
<CAPTION>
BALANCE AT
SUBACCOUNT DESCRIPTION ADDITIONS CLOSE OF
YEAR
<S> <C> <C>
N/A
TOTAL $ - $ -
3/ DESCRIBE OTHER SERVICE COMPANY PROPERTY:
N/A
4/ DESCRIBE CONSTRUCTION WORK IN PROGRESS:
N/A
<PAGE>
8
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE III
ACCUMULATED PROVISION FOR DEPRECIATION AND
AMORTIZATION OF SERVICE COMPANY PROPERTY
<CAPTION>
BALANCE AT ADDITIONS BALANCE
BEGINNING CHARGED OTHER CHANGES CLOSE OF
DESCRIPTION OF YEAR TO RETIREMENTS ADD (DEDUCT)1/ YEAR
ACCOUNT 403
Account
<S> <C> <C> <C> <C> <C>
301 ORGANIZATION
303 MISCELLANEOUS
INTANGIBLE PLANT
304 LAND AND LAND RIGHTS
305 STRUCTURES AND
IMPROVEMENTS
306 LEASEHOLD
IMPROVEMENTS $ 60 $ 51 - - $111
307 EQUIPMENT
308 OFFICE FURNITURE
AND FIXTURES 325 153 - - 478
309 AUTOMOBILES, OTHER
VEHICLES AND
RELATED GARAGE
EQUIPMENT
310 AIRCRAFT AND
AIRPORT EQUIPMENT
311 OTHER SERVICE
COMPANY PROPERTY
$385 $204 - - $589
1/ PROVIDE AN EXPLANATION OF THOSE CHANGES CONSIDERED MATERIAL:
N/A
</TABLE>
<PAGE>
9
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE IV - INVESTMENTS
INSTRUCTIONS: Complete the following schedule concerning investments.
Under Account 124, "Other Investments", state each investment
separately, with description, including, the name of issuing
company, number of shares or principal amount, etc.
Under Account 136, "Temporary Cash Investments", list each
investment separately.
BALANCE AT BALANCE AT
D E S C R I P T I O N BEGINNING CLOSE OF
OF YEAR YEAR
ACCOUNT 123 - INVESTMENT IN ASSOCIATE COMPANIES
PRIME ENERGY LIMITED PARTNERSHIP $4 825 $ 7 511
OLS POWER LIMITED PARTNERSHIP - -
ONONDAGA COGENERATION LIMITED PARTNERSHIP 17 851 18 643
SELKIRK CORPORATION PARTNERS, L.P. 20 910 17 722
BROOKLYN ENERGY LIMITED PARTNERSHIP 174 183
LAKE COGEN LIMITED PARTNERSHIP 8 055 3 921
PROJECT ORANGE ASSOCIATES L.P. 376 128
ADA COGEN LIMITED PARTNERSHIP 3 819 20
PASCO COGEN LIMITED 22 961 16 982
TOTAL $78 971 $65 110
ACCOUNT 124 - OTHER INVESTMENTS
CO. OWNED LIFE INSURANCE -
CASH SURRENDER VALUE $ 12 $ 33
ACE LIMITED STOCK (260298 SHS.) 11 928 10 347
EXEL LIMITED STOCK 3 107 -
POLSKY ENERGY CORP (906 SHS. CLASS D VOTING
& 1894 CLASS C NON VOTING) 4 767 6 038
CARRIED INTEREST - SYRACUSE ORANGE PARTNERS 2 745 2 236
LONG-TERM RECEIVABLES - ASSOCIATE COMPANIES 2 632 9 243
INTANGIBLE ASSETS - NCP ACQUISITION 16 633 24 566
ENVIROTECH INVESTMENT FUND - 279
TOTAL $41 824 $52 742
<PAGE>
10
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE IV - INVESTMENTS (Continued)
ACCOUNT 136 - TEMPORARY CASH INVESTMENTS
2 000
<PAGE>
11
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE V - ACCOUNTS RECEIVABLE FROM ASSOCIATE COMPANIES
INSTRUCTIONS: Complete the following schedule listing accounts receivable
from each associate company. Where the service company has
provided accommodation or convenience payments for associate
companies, a separate listing of total payments for each
associate company by subaccount should be provided.
BALANCE AT BALANCE AT
D E S C R I P T I O N BEGINNING CLOSE OF
OF YEAR YEAR
ACCOUNT 146 - ACCOUNTS RECEIVABLE FROM ASSOCIATE
COMPANIES $1 802 $17 825
TOTAL $1 802 $17 825
ANALYSIS OF CONVENIENCE OR ACCOMMODATION PAYMENTS: TOTAL
PAYMENTS
N/A
TOTAL PAYMENTS -
<PAGE>
12
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE VI - FUEL STOCK EXPENSES UNDISTRIBUTED
INSTRUCTIONS: Report the amount of labor and expenses incurred with respect
to fuel stock expenses during the year and indicate amount
attributable to each associate company. Under the section
headed "Summary" listed below give an overall report of the
fuel functions performed by the service company.
D E S C R I P T I O N LABOR EXPENSES TOTAL
ACCOUNT 152 - FUEL STOCK EXPENSES UNDISTRIBUTED
N/A
TOTAL - - -
SUMMARY:
<PAGE>
13
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE VII - STORES EXPENSE UNDISTRIBUTED
INSTRUCTIONS: Report the amount of labor and expenses incurred with respect
to stores expense during the year and indicate amount
attributable to each associate company.
D E S C R I P T I O N LABOR EXPENSES TOTAL
ACCOUNT 163 - STORES EXPENSE UNDISTRIBUTED
N/A
TOTAL $ - $ - $ -
<PAGE>
14
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE VIII
MISCELLANEOUS CURRENT AND ACCRUED ASSETS
INSTRUCTIONS: Provide detail of items in this account. Items less than
$10,000 may be grouped, showing the number of items in each
group.
BALANCE AT BALANCE AT
D E S C R I P T I O N BEGINNING CLOSE OF
OF YEAR YEAR
ACCOUNT 174 - MISCELLANEOUS CURRENT AND ACCRUED
ASSETS
LIHI OPTION $3 000 $3 000
DEFERRED TAX ASSET - 695
TOTAL $3 000 $3 695
<PAGE>
15
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE IX - MISCELLANEOUS DEFERRED DEBITS
INSTRUCTIONS: Provide detail of items in this account. Items less than
$10,000 may be grouped by class showing the number of items in
each class.
BALANCE AT BALANCE AT
D E S C R I P T I O N BEGINNING CLOSE OF
OF YEAR YEAR
ACCOUNT 186 - MISCELLANEOUS DEFERRED DEBITS
NOT APPLICABLE
<PAGE>
16
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE X
RESEARCH, DEVELOPMENT OR DEMONSTRATION EXPENDITURES
INSTRUCTIONS: Provide a description of each material research, development,
or demonstration project which incurred costs by the service
corporation during the year.
D E S C R I P T I O N AMOUNT
ACCOUNT 188-RESEARCH, DEVELOPMENT, OR DEMONSTRATION
EXPENDITURES
N/A
NOTE:
<PAGE>
<TABLE>
17
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XI - PROPRIETARY CAPITAL
<CAPTION>
NUMBER OF PAR OR STATED
ACCOUNT NUMBER CLASS OF STOCK SHARES VALUE OUTSTANDING CLOSE OF PERIOD
AUTHORIZED PER SHARE NO. OF SHARES TOTAL AMOUNT
<S> <C> <C> <C> <C> <C>
201 COMMON STOCK ISSUED 100 $1 000* 100 $100 000*
INSTRUCTIONS: Classify amounts in each account with brief explanation, disclosing the general nature of
transactions which gave rise to the reported amounts.
<CAPTION>
D E S C R I P T I O N AMOUNT
<S> <C>
ACCOUNT 211 - MISCELLANEOUS PAID-IN CAPITAL $127 904
ACCOUNT 215 - APPROPRIATED RETAINED EARNINGS 5 336
Unrealized Gain on Marketable Securities, Net of Income Taxes
TOTAL $133 240
INSTRUCTIONS: Give particulars concerning net income or (loss) during the year, distinguishing between
compensation for the use of capital owed or net loss remaining from servicing nonassociates per
the General Instructions of the Uniform System of Accounts. For dividends paid during the year
in cash or otherwise, provide rate percentage, amount of dividend, date declared and date paid.
<CAPTION>
BALANCE AT NET INCOME CUMULATIVE BALANCE AT
D E S C R I P T I O N BEGINNING OR DIVIDENDS TRANSLATION CLOSE OF
OF YEAR (LOSS) PAID ADJUSTMENT YEAR
<S> <C> <C> <C> <C> <C>
ACCOUNT 216 - UNAPPROPRIATED RETAINED EARNINGS (15 415) 10 549 (5) (4 871)
TOTAL (15 415) 10 549 (5) (4 871)
* In Whole Dollars
<PAGE>
18
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XII- LONG-TERM DEBT
INSTRUCTIONS: Advances from associate companies should be reported separately for advances on notes, and advances on open
account. Names of associate companies from which advances were received shall be shown under the class and
series of obligation column. For Account 224 - Other long term debt provide the name of creditor company or
organization, terms of the obligation, date of maturity, interest rate, and the amount authorized and
outstanding.
<CAPTION>
TERMS OF OBLIG DATE BALANCE AT BALANCE AT
N A M E O F C R E D I T O R CLASS & SERIES OF INTEREST AMOUNT BEGINNING 1/ CLOSE
OF OBLIGATION MATURITY RATE AUTHORIZED OF YEAR ADDITIONS DEDUCTIONS OF YEAR
<S> <C> <C> <C> <C> <C> <C> <C>
ACCOUNT 223 - ADVANCES FROM ASSOCIATE
COMPANIES:
NONE
ACCOUNT 224 - OTHER LONG-TERM DEBT:
Gas Orange Partners* 1/31/97 N/A $325 $325 $ -
1/ GIVE AN EXPLANATION OF DEDUCTIONS: Payments per agreements.
</TABLE>
<PAGE>
19
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIII - CURRENT AND ACCRUED LIABILITIES
INSTRUCTIONS: Provide balance of notes and accounts payable to each
associate company. Give description and amount of
miscellaneous current and accrued liabilities. Items less
than $10,000 may be grouped, showing the number of items in
each group.
BALANCE AT BALANCE
AT
D E S C R I P T I O N BEGINNING CLOSE OF
OF YEAR YEAR
ACCOUNT 233 - NOTES PAYABLE TO ASSOCIATE COMPANIES
NONE
TOTAL - -
ACCOUNT 234 - ACCOUNTS PAYABLE TO ASSOCIATE
COMPANIES
GPU SERVICE CORPORATION $ 142 $ 491
POLSKY ENERGY CORPORATION - 331
TOTAL $ 142 $ 822
ACCOUNT 242 - MISCELLANEOUS CURRENT AND ACCRUED
LIABILITIES
ACCRUALS - DEVELOPMENT EXPENSE $ 745 $ 505
- EMPLOYEE BENEFITS 99
- RESERVE FOR EQUIPMENT DISPOSAL (S/T) 192
- ACCRUED CAPITALIZED COSTS 145
- EMPLOYEE BONUS 237 575
- ADMINISTRATIVE EXPENSES 321
- VACATION 261 371
- AUDIT FEES 64
- LEGAL FEES 214
- EXPENSE REPORTS 18
- AMOUNTS HELD IN ESCROW 2 850
- 8 ITEMS LESS THAN $10,000 29
TOTAL $ 2 000 $ 4 626
<PAGE>
20
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS UNAUDITED
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
1. ORGANIZATION AND BUSINESS
In April 1994, Energy Initiatives, Inc. (EI or the Company) merged with
its parent company, General Portfolios Corporation (GPC), a wholly-owned
subsidiary of General Public Utilities Corporation (GPU) (see Note 5).
EI owns 100% of the common stock of the following active corporations:
Elmwood Energy Corporation (EEC), EI Selkirk, Inc., Camchino Energy
Corporation (Camchino), Geddes Cogeneration Corporation (Geddes), EI
Services, Inc., and NCP Energy, Inc. (NCP Energy) formerly North Canadian
Power, Incorporated (NCP). It also owns 100% of Armstrong Energy
Corporation and EI Fuels Corporation, which are inactive corporations.
Each of these subsidiaries was formed to develop, either directly, or
indirectly through limited partnerships, cogeneration or small power
production facilities which are qualifying facilities (QFs) under the
Public Utility Regulatory Policies Act of 1978 (PURPA). Under PURPA
regulations, EI and its subsidiaries may not own more than a 50% interest
in such facilities after commencement of operation.
EI also owns 100% of the stock of the following Canadian corporations:
EI Canada Holding Limited, EI Services Canada Limited, EI Brooklyn
Investment Limited, and EI Brooklyn Power Limited. These corporations
were formed to purchase ownership interests in and to provide operations
and management services to Exempt Wholesale Generators (EWG's) in Canada.
In November 1995 the SEC authorized GPU to contribute additional amounts
of up to $500 million to EI through December 31, 1997. EI intends to
utilize such contributions for investment in proposed QF projects, EWG's
and Foreign Utility Companies (FUCO's), as defined in the Public Utility
Holding Company Act of 1935, expenditures for preliminary project
development costs, the purchase of ownership interests in existing QF's,
EWG's and FUCO's, and other corporate purposes.
<PAGE>
20A
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities,
the disclosure of contingent assets and liabilities at the date of the
financial statements, and revenues and expenses during the reporting
period. Actual results could differ from those estimates.
Consolidation
The consolidated financial statements include the accounts of EI and all
subsidiaries. All significant intercompany accounts and transactions
have been eliminated.
Partnership Accounting
EI's subsidiaries account for their partnership investments using the
equity method of accounting.
Property, Plant and Equipment
Property, plant and equipment is stated at cost. Depreciation is
provided for on a straight-line basis over the estimated useful lives of
the assets.
Goodwill
The Company has recorded goodwill in connection with its purchase of NCP
Energy and its investment in Polsky Energy Corporation representing the
excess of consideration paid for EI's interest over the fair value of net
assets acquired. Goodwill is amortized on a straight-line basis over a
period of 40 years. Goodwill amortization expense amounted to $939,385
and $300,203 for the years ended December 31, 1995 and 1994,
respectively.
The Company periodically reviews undiscounted projections of future cash
flows to assess any potential goodwill impairment. An impairment, if
identified, would be recorded based upon discounted projected cash flows.
<PAGE>
20B
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
Deferred Revenue-Partnership
Profits related to construction development fees received from EI's
investees have been deferred to the extent of EI's interest in each
partnership (Notes 5 and 6). The deferred income is being recognized
over the life of the related facility on a straight-line basis.
Income Taxes
EI files a consolidated Federal income tax return with GPU and its other
subsidiaries. All participants in the consolidated return are jointly
and severally liable for the full amount of any tax, including penalties
and interest, which may be assessed against the group. Each subsidiary
receives currently in cash, the benefit in lieu of income taxes of its
own net operating loss, if any, to the extent that the other subsidiaries
can utilize such net operating loss to offset the tax liability they
would otherwise have on a separate return basis. This method of
allocation does not allow any subsidiary to pay more than its separate
tax return liability.
The Company accounts for income taxes in accordance with Statement of
Financial Accounting Standard No. 109, "Accounting for Income Taxes,"
(FAS 109), which requires the Company to recognize deferred tax assets
and liabilities for the expected future tax consequences attributable to
the differences between financial statement carrying amounts and their
respective tax bases at enacted tax rates. In addition, FAS 109 requires
the recognition of future tax benefits to the extent that realization of
such benefits is more likely than not. The deferred method recognizes the
tax effects of differences between financial income and taxable income at
the tax rates in effect during the period.
Foreign Currency Translation
In accordance with the SFAS No. 52 (FAS 52), balance sheet accounts of
the Company s foreign operations are translated from foreign currencies
into U.S. dollars at the year-end or historical rates while income and
expenses are translated at the daily exchange rates during the year.
Translation gains or losses related to net assets located outside the
United States are shown as a separate component of stockholder s equity.
Gains and losses resulting from foreign currency transactions
<PAGE>
20C
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
(transactions denominated in a currency other than the entity s
functional currency) are included in net income.
Investments in Securities
On January 1, 1994, the Company adopted the provisions of SFAS No. 115,
"Accounting for Certain Investments in Debt and Equity Securities," (FAS
115). In accordance with FAS 115, the Company has classified its
investment in equity securities as available for sale, at fair value, and
has included the gain as a separate component of stockholder's equity,
net of applicable taxes. The cumulative effect as of January 1, 1994 of
adopting FAS 115 was an increase in the opening equity balance of
$9,426,775, net of $6,550,810 in deferred income taxes.
In December 1995, the Company sold a portion of its securities which
resulted in a realized gain of approximately $7.7 million, net of tax.
The cost basis of the securities at December 31, 1995 and 1994 was
approximately $1.3 million and $3.8 million, respectively.
Cash and Temporary Cash Investments
For purposes of the Consolidated Statements of Cash Flows, investments
with an original maturity of three months or less are considered cash
equivalents.
Restricted Cash
During the second and third quarters of 1995, Project Orange Associates
(POA) made distributions which amounted to $2,848,000. The distributions
are currently held in restricted cash with NCP Energy. The Partners are
prohibited from receiving these distributions until there is a resolution
of the lawsuit with G.A.S. Orange Partners, L.P. (GAS LP), a partner in
POA (see Note 13).
Reclassifications
Certain amounts from the prior year financial statements have
reclassified to conform with the current year financial statements.
<PAGE>
20D
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
3. RELATED PARTY TRANSACTIONS
GPU Service Corporation (GPUSC), a subsidiary of GPU, provides
accounting, administrative and other services to EI and charged EI
$322,376 and $187,928 for the years ended December 31, 1995 and 1994,
respectively.
EI leases its corporate facilities from GPU Nuclear Corporation (GPUN), a
subsidiary of GPU. EI paid GPUN $373,368 and $246,474 in 1995 and 1994,
respectively, for rental payments and other costs pursuant to the lease
agreement.
EI receives all of its management fees and construction development fees
from affiliated companies and partnerships, in which it has interests,
and for services rendered in connection with the construction,
development, management and/or operation of its projects.
In 1991, Camchino loaned OLS Power Limited Partnership $300,000. The loan
is evidenced by a promissory note maturing in 2007 and bearing interest
at prime (8.5% as of December 31, 1995 and 1994) plus 5%, payable
quarterly.
On July 28, 1995, EI loaned an affiliated company, Guaracachi America,
Incorporated, $15 million. The loan is evidenced by a promissory note
maturing in 2007 and bearing interest at rates specified within the note,
as defined, payable quarterly. The interest rate as of December 31, 1995
was 6.25%.
EI is entitled to receive a construction completion fee pursuant to a
contract with a consortium, which includes an EI affiliated company, EI
Barranquilla, Inc., currently involved in the repowering of a 240 MW and
construction of a 750 MW generating facility in Barranquilla, Colombia.
Pursuant to this contract, EI will receive a fee of no less than $16.7
million upon completion of the facility.
Under certain circumstances, as defined in the contract, EI may receive
up to $25 million. EI is recognizing revenue based upon percentage of
completion of the project. During 1995, EI recorded a receivable in the
amount of $5,790,000 which is included in Receivables - partnerships in
the accompanying consolidated balance sheets. EI recognized
approximately $4.6 million of this receivable as Management and
<PAGE>
20E
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
development fees in the accompanying consolidated statements of
operations.
See other related party transactions in Notes 5, 6, 7, 8, 9, 10, and 12.
4. DISCLOSURES ABOUT FAIR VALUE OF FINANCIAL INSTRUMENTS
The estimated fair values of the Company s financial instruments as of
December 31, were as follows:
1995
Carrying Fair
Amount Value
Cash and temporary cash investments 2,592,515 2,592,515
Notes payable 1,800,000 1,800,000
Investment in securities 1,325,570 10,346,846
The following methods and assumptions were used to estimate the fair
value of each class of financial instruments for which it is practicable
to estimate that value:
Cash and Temporary Cash Investments
The carrying amount approximates fair value because of the short maturity
of these instruments.
Notes Payable
The fair value of the Company s long-term debt is estimated based on
discounted future cash flows using quoted market prices for the same or
similar issues or on the current rates offered to the Company for debt of
the same remaining maturities.
Guarantees of Company s Obligations, Lines of Credit and Letters of
Credit
These financial instruments are not recognized in the accompanying
consolidated balance sheets and a reasonable estimate of fair value could
not be made.
<PAGE>
20F
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
5. ACQUISITIONS, INVESTMENTS AND MERGERS
General Portfolios Corporation
In April 1994, GPC, formerly a wholly-owned subsidiary of GPU and 100%
parent of EI, was merged with EI. The transaction was accounted for
similar to a pooling of interests. The principal assets recorded by EI
for the merger consisted of investments in securities of two non-U.S.
companies.
North Canadian Power, Incorporated
In June 1994, the Company acquired 100% of the stock of NCP, a California
company engaged in the business of developing, owning and managing
cogeneration and other independent power plants in the United States and
Canada. NCP Energy owns 100% of the following corporations: NCP Lake
Power, Inc. (NCP Lake), NCP Gem, Inc. (NCP Gem), NCP Dade Power, Inc.
(NCP Dade), NCP Pasco, Inc. (NCP Pasco), NCP Ada Power, Inc. (NCP Ada),
NCP Power Commerce, Inc. (NCP Commerce), NCP Perry, Inc., and NCP
Houston Power, Inc. NCP was formerly a wholly-owned subsidiary of North
Canadian Resources, Incorporated (NCRI).
NCP Energy also owns 100% of the following inactive corporations:
Umatilla Groves, NCP Brooklyn Power, Inc., and NCP New York, Inc.
Pursuant to this acquisition, EI acquired partnership interests in four
of the five cogeneration facilities associated with the sale (see Note
6), along with the tangible and intangible assets of NCP, for
approximately $53 million.
The ultimate acquisition of the fifth and remaining partnership interest
was contingent upon obtaining the appropriate consents of the parties
affiliated with that project. After obtaining the appropriate consents,
EI purchased a 4.9% limited partnership interest in Syracuse Orange
Partners, L.P. (SOP), which, in turn, owns an 89% interest in POA. POA
is a Delaware limited partnership. The principal asset of POA is an 80 MW
gas-fired cogeneration plant located in Syracuse, NY. POA has a 40-year
Power Purchase Agreement with Niagara Mohawk Power Corporation and a 40-
year steam sales agreement with Syracuse University. EI paid NCRI
$372,500 for the 4.9% interest. In addition, EI purchased a 20.01%
carried interest in the future cash flows of SOP from NCRI for
<PAGE>
20G
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
approximately $2.7 million, which is included in Other investments, net
on the consolidated balance sheets. EI also paid NCRI $2.6 million for
the rights to perform management services and receive fees pursuant to
POA management fee contracts. Payment of $5.7 million for this
acquisition was made on December 30, 1994.
The NCP acquisition was accounted for by the purchase method and
initially resulted in goodwill of approximately $2.5 million and other
intangible assets of approximately $14.3 million. These items are being
amortized over a period of 40 years.
In May 1995, final purchase price adjustments relating to the NCP
Acquisition were recorded which increased goodwill by approximately $5.9
million and increased intangible assets by approximately $2.9 million.
The adjustments were primarily attributable to utilizing higher discount
rates than previously used in order to determine the fair market value of
the Lake Cogen Ltd.(LAke Cogen) and Pasco Cogen Ltd. (Pasco) partnership
interests. Higher discount rates were used to reflect additional risk
associated with litigation that these two projects are currently involved
in with Florida Power Corporation (see Note 12), which resulted in
decreases to the partnership interest carrying values of Lake and Pasco
of approximately $2 million and $5.3 million, respectively.
In addition, the partnership interest carrying value of Ada Cogen Ltd.
was reduced by approximately $3.6 million to reflect the present value of
the sublease agreement (see Note 6).
Deferred tax assets of approximately $2.5 million were recorded to
reflect certain tax deferral items inherited at acquisition date, which
reduced goodwill.
The following summary, prepared on a pro-forma basis, combines the
consolidated results of operations as if NCP had been acquired as of the
beginning of the period presented, after including the impact of certain
adjustments, such as amortization of intangibles and the related income
tax effects.
<PAGE>
20H
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
(Unaudited)
1994
(dollars in thousands)
Operating revenues $5,683
Operating loss ($6,652)
Loss before income taxes ($8,524)
Net loss ($5,449)
The pro-forma results are not necessarily indicative of what would have
occurred if the acquisition had been in effect for the entire period
presented. In addition, they are not intended to be a projection of
future results from combined operations.
On December 29, 1995, EI exercised its option to purchase an additional
3.05% limited partnership interest in Pasco Cogen Ltd. from NCRI. EI
paid NCRI $1,324,000 to purchase the additional partnership interest.
Selkirk Option
Since 1992, EI retained an option to purchase interests in two
cogeneration facilities located in Bethlehem, New York: a 79.9 MW
operating facility and a 270 MW facility that commenced commercial
operation on September 1, 1994.
Through 1993, EI paid approximately $5.5 million for the option, certain
transaction costs and equity contributions to the project. On September
25, 1994, EI made a $7.6 million equity investment in the two projects.
The option agreement provided that the option be exercised prior to
January 2, 1995 with an additional payment of $5.5 million plus accrued
interest, subject to adjustment as specified in the agreement. In
November 1994, the Company exercised its option in the amount of $7.7
million.
Polsky Energy Corporation
In September 1993, the Company acquired an interest in Polsky Energy
Corporation (PEC), a Delaware corporation engaged in the development of
independent power production facilities. Pursuant to this acquisition,
the Company purchased common stock representing 4.9% of the voting shares
<PAGE>
20I
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
and, in aggregate, not more than 29% of the total number of shares of all
classes of stock for a total purchase price not to exceed $8.5 million.
The Company also has the right to provide the operations and maintenance
services for several PEC projects under development.
At the acquisition date, the Company paid $2.5 million, which represented
approximately a 12% interest in PEC, for the initial installment of the
stock purchase. On July 1, 1994 and 1995, the Company paid $2.5 million
and $2 million, respectively, for the second and third installments,
which increased its equity interest in PEC to approximately 20% and 25%,
respectively. The remaining obligation of $1.5 million of the aggregate
purchase price is to be paid on July 1, 1996 for which EI has posted a
letter of credit, guaranteed by GPU, in support of its 1996 obligation,
as required by the stock purchase agreement.
The Company has accounted for this acquisition using the purchase method
and, as a result, has recorded approximately $5.8 million as goodwill
that will be amortized over a period of 40 years. The Company accounts
for its investment using the equity method. The Company recorded
goodwill amortization on this investment of $134,134 and $101,168 and
equity losses of $607,872 and $380,002 for the years ended December 31,
1995 and 1994, respectively.
6. PARTNERSHIP INTERESTS
Prime Energy Limited Partnership
EEC has a 1% interest as the sole general partner and a 49% interest as a
limited partner in Prime Energy Limited Partnership (PELP). PELP was
organized to construct, own and operate a 65 MW cogeneration project in
Elmwood Park, New Jersey (Marcal Project). The Marcal Project was placed
in commercial operation in July 1989 at a total capitalized cost of
approximately $61 million, which was funded with nonrecourse debt
collateralized by PELP's assets. PELP has a Power Purchase Agreement
with an affiliate of EI for the sale of electricity and capacity from the
Marcal Project. As of December 31, 1995 and 1994, EEC had an investment
in PELP of approximately $7.5 million and $4.8 million, respectively.
<PAGE>
20J
ANNUAL REPORT OF ENERGY INITIATIVES,INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
O.L.S. Power Limited Partnership
Through Camchino, EI owns a 1% interest as general partner and a 49%
interest as limited partner in O.L.S. Power Limited Partnership (O.L.S.
Power), a Delaware limited partnership. As of December 31, 1993,
Camchino had reduced its investment in O.L.S. Power to zero through the
recording of equity losses.
On August 3, 1989, O.L.S. Power acquired, through O.L.S. Acquisition
Corporation, all of the outstanding capital stock of O.L.S. Energy -
Berkeley (Berkeley), O.L.S. Energy - Chino (Chino) and O.L.S. Energy -
Camarillo (Camarillo) for a total purchase price of approximately $13.4
million. Berkeley, Chino and Camarillo are each lessees, pursuant to
separate sale and leaseback agreements, of operating cogeneration
facilities at the University of California - Berkeley (22.5 MW), the
California State Correctional Facility in Chino (27 MW) and the State
Hospital in Camarillo, California (27 MW), respectively. See Note 13.
Onondaga Cogeneration Limited Partnership
Geddes holds the general partnership interest and a limited partnership
interest in Onondaga Cogeneration Limited Partnership (Onondaga), a New
York partnership.
The project has been financed by a group of lenders through the Onondaga
County Industrial Development Authority (OCIDA). OCIDA provided for a
construction loan of up to $89.5 million, which was converted to a term
loan of $82 million in May 1994, with a maturity of 15 years. Geddes
made its capital contribution of $13.5 million on December 17, 1993. On
December 18, 1993, the project commenced commercial operations. In April
1994, Geddes made an additional capital contribution of $1.4 million to
cover cost overruns relating to the construction of the project. As of
December 31, 1995 and 1994, Geddes had an investment in Onondaga of
approximately $18.6 million and $17.9 million, respectively.
The Lenders have required Geddes to provide for up to $5 million of
additional funding, in the form of equity letters of credit, to provide
for contingent obligations during the term loan period. Geddes, through
EI, has provided a letter of credit to support other funding requirements
in the amount of $5 million, which has been guaranteed by GPU.
<PAGE>
20K
ANNUAL REPORT OF ENERGY INITIATIVES,INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
Lake Cogen Ltd.
Through NCP Lake and NCP Gem, NCP Energy has a 1% general partner
interest and a 41.05% limited partner interest in Lake Cogen Ltd. (Lake),
a Florida limited partnership. The Lake project is a 112 MW cogeneration
facility located on the site of Golden Gem, Inc. fruit processing
operations. The project has a 20-year Power Purchase Agreement (PPA)
with Florida Power Corporation (FPC), and a 20-year Cogeneration Services
Agreement with Golden Gem, Inc. The project was placed into commercial
operation on July 1, 1993, and was financed through a sale-leaseback with
the Owner Trustee for an initial term of 11 years (see Note 12). As of
December 31, 1995 and 1994, NCP Energy had an investment in Lake of
approximately $3.9 million and $8.1 million, respectively.
In connection with the NCP acquisition, EI transferred the partnership
interests in Lake it did not acquire to Lake Interests Holdings,
Incorporated (LIHI), a subsidiary of NCRI. EI paid $3 million to NCRI
for the option to sell 50% of the Lake partnership interests currently
held by LIHI. If the option is exercised, EI must pay LIHI an additional
$7 million. If EI does not obtain a buyer for the LIHI interests by the
earlier of June 30, 1997 or six months following the resolution of
litigation pending with Florida Power Corporation (See Note 12),
ownership will remain with NCRI. EI has recorded the $3 million option
as a current asset as of December 31, 1995 and 1994.
Pasco Cogen Ltd.
Through NCP Dade and NCP Pasco, NCP Energy has a 1% general partner
interest and a 48.9% limited partner interest in Pasco Cogen Ltd.
(Pasco), a Florida joint venture partnership. The Pasco project is a 112
MW cogeneration facility located on the site of Lykes Pasco, Inc. fruit
processing operations. The project has a 20-year PPA with FPC and a 20-
year Steam Production Contract with Lykes Pasco, Inc. The project was
placed into commercial operation on July 1, 1993, and was financed with
long-term debt of approximately $93 million. As of December 31, 1995 and
1994, NCP Energy had an investment in Pasco of approximately $17 million
and $22.9 million, respectively.
<PAGE>
20L
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
Ada Cogeneration Limited Partnership
Through NCP Ada, NCP Energy has a 1% general partner interest in Ada
Cogeneration Limited Partnership (Ada), a Michigan limited partnership.
The Ada project is a 29 MW cogeneration facility located on the site of
Amway Corporation's headquarters. The project has a 35-year PPA with
Consumers Power Company and a 35-year Thermal Sales Agreement with Amway
Corporation. The project was placed into commercial operation on January
5, 1991. As of December 31, 1995 and 1994, NCP Energy had an investment
in Ada of approximately $21,000 and $3.8 million, respectively.
Pursuant to a sublease agreement with NCP Energy, Ada is obligated to
accrue, in a deferral account, sublease rent payable to NCP Energy.
Sublease rent consists of base rent, which escalates annually according to
the Consumer Price Index, plus contingent rent. Contingent rent is equal
to the product of Ada's annual adjusted gross revenue (as defined in the
sublease agreement) times a factor of 9% escalating 1% at the end of each
five-year period beginning on January 1, 1996. The accumulated sublease
rent payable balance earns interest at 10% per annum compounded monthly.
Payments to NCP Energy will be made in quarterly installments in
accordance with the sublease agreement for quarters commencing on January
1, 1996 at the lesser of 44% of available cash flow (as defined in the
sublease agreement) or the balance in this deferral account. As of
December 31, 1995 and 1994, NCP Energy accrued sublease rent receivables
of approximately $3.1 million and $2.3 million, respectively, which is
reflected in non-current receivables from partnerships in the accompanying
consolidated balance sheets.
FPB Cogeneration Partners, L.P.
Through NCP Commerce, NCP Energy has a 30% co-general partner interest in
FPB Cogeneration Partners, L.P. (FPB), a 26 MW cogeneration facility
located in Commerce, California. Due to the uncertainty of future
distributions of cash flows, no value has been ascribed to the partnership
interests in FPB. Consequently, there is no investment carrying amount as
of December 31, 1995 and 1994.
<PAGE>
20M
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
Brooklyn Energy Limited Partnership
On March 11, 1994, EI entered into an agreement with PEC to invest up to
$9.7 million of equity in the Brooklyn Energy Limited Partnership
(Brooklyn). The equity will be used towards the construction and
operation of a 24 MW wood and oil-fired cogeneration facility, which is
located in Brooklyn, Nova Scotia, Canada. Commercial operation of the
facility is scheduled to commence early in 1996. EI posted a $9.7
million letter of credit, guaranteed by GPU, in support of its equity
obligation to Brooklyn.
Pursuant to the Partnership Agreement, the distribution of available cash
(as defined) and the allocation of profits and losses is dependent on the
internal rate of return (IRR)(as defined) generated by EI on its equity
investment commencing with commercial operations of the facility, as
indicated below.
EI EI Polsky
General Limited General Polsky
Partner Partner Partner L.P.
Prior to EI achieving a 13% IRR 74% 1% 24% 1%
After EI achieves a 13% IRR 26.4% 1% 24% 48.6%
One year after EI achieves a 13% IRR, its percentage of profit sharing
and cash distributions may be reduced if actual plant performance exceeds
projected plant performance (as defined).
Selkirk Cogen Partners, L.P.
In November 1994, EI exercised its option to invest in Selkirk Cogen
Partners, L.P. (Selkirk), and was admitted as a limited partner. EI's
partnership interest includes a preferred equity participation position
as well as a common equity share. EI has approximately a 13.55% interest
in the preferred equity of the partnership and a 20% interest in the
common equity. As of December 31, 1995 and 1994, EI had an investment in
Selkirk of approximately $17.7 million and $20.9 million, respectively.
See Note 5.
<PAGE>
20N
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
Syracuse Orange Partners, L.P.
EI purchased a 4.9% limited partnership interest in SOP for $372,500 on
December 30, 1994. See Note 5. EI had an investment in SOP of
approximately $128,000 as of December 31, 1995.
Mid-Georgia Cogen, L.P.
Through NCP Houston Power, Inc. and NCP Perry Inc., NCP Energy has a 1%
general partner interest and a 99% limited partnership interest in Mid-
Georgia Cogen, L.P. (Mid-Georgia), a 300 MW cogeneration facility which
is currently in the process of development. On August 7, 1995, Mid-
Georgia entered a Power Purchase Agreement (PPA) with Georgia Power
Company. The PPA carries a term of thirty years commencing with
commercial operation. On December 21, 1995 Mid-Georgia entered into a
steam sales agreement with Frito-Lay, Inc. The agreement carries an
initial term of 22 years commencing with commercial operation, which is
targeted for mid 1998.
Envirotech Investment Fund L.P.
EI holds a limited partnership interest in Envirotech Investment Fund
L.P. (Envirotech), a Delaware partnership. Envirotech was formed to
invest in companies engaged in commercializing electrotechnologies and
renewable energy technologies that promote environmental and economic
responsibility. EI has committed to contribute up to a 9.9% interest in
Envirotech, which would represent investments between approximately $2.5
million to $5 million. During 1995, EI made equity contributions in the
amount of $314,237. As of December 31, 1995, EI had an investment in
Envirotech of approximately $280,000.
Partnership Financial Information
Combined partnership financial information for PELP, OLS Power, POA,
Onondaga, Selkirk, Pasco, FPB, Brooklyn, Lake and Ada as of and for the
years ended December 31, was as follows:
<PAGE>
20O
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
Balance Sheet Data 1995 1994
Current assets $153,471,999 $219,115,029
Property, plant & equipment, net 732,429,112 631,864,930
Equipment under capital leases, net 69,500,011 72,667,735
Construction work in progress, net 49,980,737 15,263,792
Other assets 126,840,780 68,450,235
Current liabilities 99,872,721 110,747,407
Long-term notes payable 846,323,019 692,158,930
Capital lease obligation 72,750,607 74,507,333
Other liabilities 44,731,593 28,426,367
Partners' capital 68,544,699 101,521,684
Income Statement Data 1995 1994
Revenues $383,596,790 $213,183,950
Operating expenses 274,062,709 165,753,096
Depreciation and amortization 33,029,599 18,394,830
Net interest expense 79,654,876 37,055,827
Other income (expense) - (34,884,900)
Income taxes (47,380) 122,228
Net loss to partners (3,103,014) (43,026,931)
Other income (expense) and net loss to partners for the year ended
December 31, 1994 included a write-off of deferred financing costs
relating to the Selkirk project of approximately $35 million. This write-
off occurred prior to EI exercising its option to invest in Selkirk as
described in Note 5.
<PAGE>
20P
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
EI's effective ownership interests in the aforementioned partnerships as
of December 31, 1995 and 1994 was as follows:
Investment as of
General Limited December 31,
Partner Partner (millions)
1995 1994 1995 1994 1995 1994
PELP 1% 1% 49% 49% $ 7.5 $ 4.8
OLS Power 1% 1% 49% 49% - -
Onondaga 1% 1% 49% 49% 18.6 17.9
Ada 1% 1% - - - 3.8
Lake 1% 1% 41.05% 41.05% 3.9 8.1
Pasco 1% 1% 48.9% 45.85% 17.0 22.9
Brooklyn 74% 74% 1% 1% .2 .2
Selkirk - - 19.23% 19.23% 17.7 20.9
FPB 30% 30% - - - -
SOP - - 4.9% 4.9% .2 .4
$65.1 $79.0
7. CREDIT AGREEMENT
In December 1994, EII entered into a credit agreement with Citibank, N.A.
and Canadian Imperial Bank of Commerce, with Citibank acting as the lead
agent. The credit agreement provides for the following:
- a $30 million credit line which may be drawn in the form of
notes or letters of credit. The aggregate amount of letters of
credit outstanding at one time may not exceed $15 million.
- notes issued under the agreement will bear interest at the
higher of either Citibank's base rate and the Federal funds rate
plus 50 basis points, or LIBOR plus 50 basis points. The
agreement has an initial term of three years, subject to a one-
year extension at the sole discretion of the lenders. Upon
termination, outstanding loans are payable over a two-year
period in quarterly installments.
<PAGE>
20Q
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
- facility fees are payable quarterly at an annual rate of 3/8 of 1%
on the average daily aggregate amount of each lender's commitment.
- letter of credit fees are payable quarterly at an annual rate
of 1/2 of 1%.
As of December 31, 1995, a $1,500,000 borrowing was outstanding under the
credit agreement. The borrowing bears interest at 6.25 percent per
annum, which is based on the LIBOR at December 31, 1995, plus 50 basis
points, and matures on January 31, 1996.
On December 8, 1995, a letter of credit in the face amount of $1,788,850
was issued. The letter of credit carries a fee equal to 1/2 of 1 percent
per annum of the face amount, plus a .10 percent fronting fee, and
expires on December 8, 1996. The purpose of the letter of credit is to
support PEC s commitment to construct a 236 MW cogeneration facility
pursuant to its power sales agreement with Wisconsin Public Service Co.
EI is the joint developer and owner, along with PEC, of this facility.
On August 7, 1995, a letter of credit in the face amount of $7,000,000
was issued. The letter of credit carries a fee equal to 1/2 of 1 percent
per annum of the face amount, plus a .10 percent fronting fee, and
expires on August 7, 1996. The purpose of the letter of credit is to
support EI s commitment to construct a 300 MW cogeneration facility
pursuant to its Power Purchase Agreement with Georgia Power Company dated
August 7, 1995.
GPU has represented to the lenders that it will not alter its position as
sole shareholder of EI without prior consent and it shall provide
appropriate oversight of the management of EI to help it meet its
financial obligations.
8. LEASES
EI leases its corporate offices from GPUN, an affiliated company (see
Note 3). In July 1994, the initial lease term of four years ending
September 1, 1996 was extended through August 31, 2006.
In January 1996, EI entered into a one-year lease agreement for its
California office, which expires December 31, 1996. The annual lease
payment for the California office is approximately $11,000. Rental
payments for its corporate and California offices, including operating
<PAGE>
20R
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
costs, for 1995 and 1994, were approximately $395,000 and $360,000,
respectively. In addition to the rental cost, EI is responsible for its
proportionate share of certain operating costs incurred by the lessor,
subject to annual adjustments in accordance with the lease agreement.
Future minimum rental payments on EI s leases as of December 31, 1995,
were as follows:
1996 259,590
1997 248,490
1998 248,490
1999 248,490
2000 248,490
Thereafter 1,408,938
Total future minimum rentals $2,662,488
9. INCOME TAXES
Income tax expenses for the years ended December 31, 1995 and 1994 were
different from the amount computed by applying the statutory Federal
income tax rate to book income (loss) before income taxes, as follows:
1995 1994
Income (loss) before income taxes $15,448,711 $(4,448,065)
Income tax expense (benefit) at
Federal statutory rate of 35% 5,407,049 (1,556,823)
Amortization 35,409 35,409
State income taxes, net of federal benefit 177,766 (5,627)
State NOL utilized 914,800 -
Valuation allowance (1,610,000) -
Other (25,404) 12,228
Income tax expense (benefit) $ 4,899,620 $ (1,514,813)
<PAGE>
20S
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
Income tax expense for the years ended December 31, was comprised of the
following:
1995 1994
Provision for income taxes currently
payable (recoverable) $ 2,723,177 $(1,623,744)
Deferred income taxes resulting from:
Deferred revenue - partnerships 1,660,236 39,036
Project costs (136,470) (450,945)
Partnership income (517,615) 388,487
Depreciation and amortization 877,275 160,828
Gain on sale of securities 563,776 -
Prior period Federal and State
income tax adjustments 370,008 66,373
Deferred state tax, net of federal benefit 111,049 (67,703)
Valuation allowance (1,610,000) -
State NOL utilized 914,800 -
Other (56,616) (27,145)
Deferred income taxes, net 2,176,443 108,931
Income tax expense (benefit) $ 4,899,620 $(1,514,813)
EI is a member of a group of companies which file a consolidated federal
income tax return with GPU. During 1994, EI generated a net operating
loss for tax purposes on a separate company basis. Pursuant to a tax
sharing agreement with GPU, EI received cash payments for its federal
net operating loss as it was fully utilized in the GPU 1994 federal
consolidated income tax return. Tax-related amounts due from GPU are
<PAGE>
20T
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
included in income taxes receivable on the accompanying consolidated
balance sheets as of December 31, 1994.
In 1995, EI generated net operating income for tax purposes on a separate
company basis. Tax-related amounts due to GPU are included in income
taxes payable on the accompanying consolidated balance sheets as of
December 31, 1995.
A summary of the components of deferred taxes as of December 31, was as
follows:
Deferred Tax Assets 1995 1994
Non-current:
Deferred revenue $ - $ 176,885
Deferred project costs 1,101,415 450,945
Sub Part F income 549,649 1,113,425
Partnership income 301,038 -
Deferred stock awards 111,460 93,471
State NOL carryforward 695,200 1,610,000
2,758,762 3,444,726
Valuation allowance - (1,610,000)
$2,758,762 $1,834,726
Deferred Tax Liabilities
Non-current:
Partnership income $ - $1,238,839
SFAS 115 adjustments 4,039,772 4,615,200
Deferred revenue 1,483,351 -
$5,523,123 $5,854,039
As of December 31, 1995 and 1994, EI had state income tax loss
carryforwards amounting to approximately $7.7 million and $17.9 million,
respectively, of which $10.2 million was utilized in 1995. The remainder
is expected to be utilized in 1996.
<PAGE>
20U
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
10. POSTEMPLOYMENT BENEFITS
The GPU System maintains defined benefit pension and other postretirement
benefit plans (the Plans), covering substantially all of its employees.
EI employees are covered under the GPUSC defined benefit pension plan.
Plan benefits are based on career average compensation and years of
service. GPUSC's policy is to currently fund net pension costs within
the deduction limits permitted by the Internal Revenue Code.
A summary of the components of net periodic pension cost as of December
31, was as follows:
1995 1994
Service cost-benefits earned during the period $ 49,000 $ 54,000
Interest cost on projected benefit obligation 54,000 27,000
Expected return on assets (55,000) 10,000
Net Amortization (5,000) -
Net periodic pension cost $ 43,000 $ 71,000
The funded status of the Plans and related assumptions as of December 31,
were as follows:
1995 1994
Accumulated benefit obligation:
Vested benefits $ 805,000 $ 341,000
Nonvested benefits 633,000 187,000
Effect of future compensation levels 472,000 157,000
Projected benefit obligation 1,910,000 685,000
Plan assets at fair value (252,000) (212,000)
Unrecognized prior service cost (40,000) -
Unrecognized net gain (loss) (1,157,000) (55,000)
Accrued pension cost $ 461,000 $ 418,000
<PAGE>
20V
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
As of December 31, 1995 and 1994, EI had an accrued pension liability of
$461,000 and $418,000, respectively, which was included in other long-
term liabilities on the accompanying consolidated balance sheets.
1995 1994
Principal Actuarial Assumptions:
Annual long-term rate of return
on plan assets 7.5% 8.0%
Discount rate 7.5% 8.0%
Annual increase in compensation level 5.5% 6.0%
The assets of the Plans are held in a Master Trust and generally invested
in common stocks, fixed income securities and real estate equity
investments.
The GPU System also maintains savings plans (Saving Plans) for
substantially all its employees. These Savings Plans provide for
employee contributions up to specified limits. Certain of the GPU
System's Savings Plans provide for various levels of matching
contributions. The Company's matching contributions for the years ended
December 31, 1995 and 1994 were $91,162 and $63,177, respectively.
In addition to providing the above benefits, EI provides certain retiree
health care and life insurance benefits for substantially all employees
who reach retirement age while working for the Company. The Company has
provided postretirement pension expense of $25,000 and $28,000 and has
recorded $104,000 and $79,000 as other long-term liabilities on the
accompanying consolidated balance sheets for these retiree health care
and life insurance benefits in 1995 and 1994, respectively. The
Company's accumulated postretirement benefit obligation as of December
31, 1995 is $303,000 and the market value of the plan assets is $9,000.
<PAGE>
20W
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
11. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment as of December 31, consisted of the
following:
1995 1994
Furniture and fixtures $ 119,012 $ 114,763
Office equipment 836,433 529,940
Leasehold improvements 266,434 171,480
1,221,879 816,183
Less accumulated depreciation 588,328 385,538
$ 633,551 $ 430,645
Depreciation expense amounted to $202,790 and $170,555 for the years
ended December 31, 1995 and 1994, respectively.
12. COMMITMENTS AND CONTINGENCIES
GPU has guaranteed payments to General Electric Capital Corporation of
amounts up to the lesser of six months average rent (approximately
$7,026,000) or $10 million to the extent Lake Cogen, Ltd. fails to pay
rent when due under the terms of the lease or chooses not to renew the
lease after the initial 11-year term. In addition, GPU has guaranteed to
pay any documentary stamp taxes and intangible personal property taxes
should these taxes become due and payable in connection with the lease.
Onondaga and Project Orange Associates, L.P. (POA) entered into power
purchase agreements with Niagara Mohawk Power Corporation (NiMo) under
which the utility agreed to purchase the net electrical energy and
capacity produced by Onondaga and POA up to a maximum of 79.9 MW. On
September 22, 1995, NiMo filed suit in the Supreme Court of New York,
Onondaga County, against Onondaga and POA seeking, among other things, a
Declaratory Judgment that it is not required to pay the projects for
electricity generated in excess of the expected annual production .
With regards to Onondaga, NiMo claims overpayment of $1,268,832 for
calendar year 1994 and asserts that in 1995 Onondaga will overgenerate
and claim entitlement to approximately $1.6 million in overpayments. As
to POA, NiMo claims $1,271,313 of overpayment in 1993, $3,002,470 in
1994, and in 1995 claims entitlement to approximately $2.9 million in
overpayments.
<PAGE>
20X
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
Based on these allegations, NiMo withheld $600,000 each from Onondaga and
POA's invoices during the third quarter 1995 relating to 1993 and 1994
"alleged" overpayments. From December 1995 through January 1996, NiMo
withheld approximately $2.9 million from POA, and $1.6 million from
Onondaga relating to 1995 purchased power.
Onondaga and POA filed summary judgment motions and arguments were held
on December 13, 1995.
Although summary judgment was denied, the judge ruled that NiMo was not
entitled to limit payments to the amounts approximated in the contracts,
but instead was obligated to purchase a "commercially reasonable"
additional amount. The definition of "commercially reasonable" will be
determined in the litigation. Discovery activities are underway. There
can be no assurance as to the outcome of these proceedings.
On March 25, 1996, Onondaga and NiMo, in settlement of the dispute,
agreed to amend the Power Purchase Agreement such that Onondaga may
generate and deliver electricity to NiMo in excess of the previously
asserted limit and that NiMo is obligated to pay contract rates for such
generations.
In addition, NiMo paid to Onondaga $1.8 million, representing the amount
due to Onondaga as if the amended Power Purchase Agreement had been in
effect as of January 1, 1994.
NiMo has filed litigation in the United States District Court for the
Northern District of New York Public Service Commission and the Federal
Energy regulatory Commission, seeking, among other things, to abrogate
the power purchase agreements with Onondaga and POA as well as many other
unrelated projects entered into pursuant to PURPA. Oral arguments are
scheduled for March 4, 1996. There can be no assurance as to the
outcome of these proceedings.
Since August 1994, Florida Power Corporation (FPC) has been paying Lake
and Pasco based on the as-available prices (which were generally less
than the formula price under their power purchase agreements) in a
majority of the hours during which energy was delivered. Lake wrote off
<PAGE>
20Y
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
approximately $2.3 million and $1.2 million in 1995 and 1994,
respectively, associated with these reduced rate payments. EI has
recorded a provision against its investment in Pasco of approximately
$2.4 million and $1.3 million in 1995 and 1994, respectively, associated
with these reduced rate payments.
Lake and Pasco filed suits in separate state courts in Florida to recover
the sums withheld and prevent future withholdings. FPC s motions to
dismiss these litigations were denied. Lake filed and was granted its
motion for partial summary judgment on the issue of liability on January
4, 1996, with the Court ruling that FPC was incorrect in its
determination of payments to be made to Lake. The damage portion of the
case is continuing. There can be no assurance as to the outcome of these
proceedings.
EI has guaranteed the obligations of affiliated companies, EI Power
Incorporated s subsidiaries, EI Services Colombia, Ltda., and
International Power Advisors, Inc.(the Operators), under the
operations and maintenance agreement in the South American project.
Pursuant to the guarantee, EI has guaranteed the performance of the
Operators,limited to $5,000,000.
13. SUBSEQUENT EVENTS
In January 1996, EI sold its remaining investment in securities and
recorded a realized gain of approximately $6.2 million, net of selling
expenses and income taxes.
In February 1996, CEC entered into negotiations with a third party to
sell its 49% limited partnership interest in OLS Power Limited
Partnership.
In January and February, 1996 EI advanced EI Energy, Inc., an affiliated
company which is a wholly-owned subsidiary of GPU, approximately $17.7
million for the purpose of acquiring securities in a foreign utility
company.
On March 28, 1996, the lawsuit initiated by GAS LP was settled and a
Stipulation of Discontinuance was filed in Court. In accordance with the
settlement, the distributions held by NCP Energy were distributed to the
Partners on March 29, 1996.
<PAGE>
21
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XV
STATEMENT OF INCOME
ACCOUNT D E S C R I P T I O N CURRENT YEAR PRIOR YEAR
(UNAUDITED)
INCOME
457 Services rendered to associate companies $ 19 063 $ 4 695
458 Services rendered to nonassociate companies - -
421 Equity earnings (losses) (1 741) (601)
421 Interest and dividend income 960 518
421 Gain on sale of asset 11 775 -
Total Income 30 057 4 612
EXPENSE
920 Salaries and wages 3 784 2 409
921 Office supplies and expenses 707 238
922 Administrative expense transferred -
credit - -
923 Outside services employed 5 888 3 726
924 Property insurance 91 36
925 Injuries and damages - -
926 Employee pensions and benefits 443 509
928 Regulatory commission expense - -
930.1 General advertising expenses - -
930.2 Miscellaneous general expenses 1 018 900
931 Rents 395 360
932 Maintenance of structures and equipment - -
403 Depreciation and amortization expense 1 142 471
408 Taxes other than income taxes 643 396
409 Income taxes 2 723 (1 316)
410 Provision for deferred income taxes 2 177 -
411 Provision for deferred income taxes -
credit - (199)
411.5 Investment tax credit - -
426.1 Donations - -
426.5 Other deductions - -
427 Interest on long-term debt - -
430 Interest on debt to associate
companies - -
431 Other interest expense 497 15
Total Expense 19 508 7 545
Net Income or (Loss) $ 10 549 $(2 933)
<PAGE>
22
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
ANALYSIS OF BILLING
ASSOCIATE COMPANIES
ACCOUNT 457
COSTS DIRECT INDIRECT COMPENSATION
NAME OF ASSOCIATE COMPANY COSTS FOR USE AMOUNT TOTAL
CHARGED CHARGE OF CAPITAL BILLED
457-1 457-2 457-3
PRIME ENERGY LIMITED PARTNERSHIP $ 1 796 $ - $ - $1 796
OLS POWER LIMITED PARTNERSHIP 532 - - 532
ONONDAGA COGENERATION LIMITED
PARTNERSHIP 36 - - 36
EI SERVICES CANADA 1 094 - - 1 094
TERMOBARRANQUILLA, S.A. EMPRESA
DE SERVICIOS PUBLICOS (TEBSA) 12 839 - - 12 839
SEF COGENERATION CORPORATION 493 - - 493
LAKE COGEN LIMITED 363 - - 363
PROJECT ORANGE ASSOCIATES 605 - - 605
ADA COGEN LIMITED 1 123 - - 1 123
PASCO COGEN LIMITED 182 - - 182
TOTAL $19 063 $ - $ - $19 063
<PAGE>
<TABLE>
23
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
ANALYSIS OF BILLING
NONASSOCIATE COMPANIES
ACCOUNT 458
<CAPTION>
DIRECT INDIRECT COMPENSATION EXCESS
COSTS COSTS FOR USE TOTAL OR TOTAL
NAME OF NONASSOCIATE COMPANY CHARGED CHARGED OF CAPITAL COST DEFICIENCY AMOUNT
458-1 458-2 458-3 458-4 BILLED
<S> <C> <C> <C> <C> <C> <C>
NOT APPLICABLE
INSTRUCTION: Provide a brief description of the services rendered to each nonassociated company:
<PAGE>
24
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XVI
ANALYSIS OF CHARGES FOR SERVICE
ASSOCIATE AND NONASSOCIATE COMPANIES
<CAPTION>
ASSOCIATE COMPANY CHARGES NONASSOCIATE COMPANY CHARGES TOTAL CHARGES FOR SERVICE
DIRECT INDIRECT DIRECT INDIRECT DIRECT INDIRECT
DESCRIPTION OF ITEMS COST COST TOTAL COST COST TOTAL COST COST TOTAL
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
920 SALARIES AND WAGES
921 OFFICE SUPPLIES AND EXPENSES
922 ADMINISTRATIVE EXPENSE TRANSFERRED-
CREDIT
923 OUTSIDE SERVICES EMPLOYED NOT APPLICABLE
924 PROPERTY INSURANCE
925 INJURIES AND DAMAGES
926 EMPLOYEE PENSIONS AND BENEFITS
928 REGULATORY COMMISSION EXPENSE
930.1 GENERAL ADVERTISING EXPENSES
930.2 MISCELLANEOUS GENERAL EXPENSES
931 RENTS
932 MAINTENANCE OF STRUCTURES AND
EQUIPMENT
403 DEPRECIATION AND AMORTIZATION
EXPENSE
408 TAXES OTHER THAN INCOME TAXES
409 INCOME TAXES
410 PROVISION FOR DEFERRED INCOME TAXES
411 PROVISION FOR DEFERRED INCOME TAXES
- CREDIT
411.5 INVESTMENT TAX CREDIT
426.1 DONATIONS
426.5 OTHER DEDUCTIONS
427 INTEREST ON LONG-TERM DEBT
430 INTEREST ON DEBT TO ASSOCIATE
COMPANIES
431 OTHER INTEREST EXPENSE
INSTRUCTION: Total cost of service will equal
for associate and nonassociate
companies the total amount billed
under their separate analysis of
billing schedules.
TOTAL EXPENSES =
COMPENSATION FOR USE OF EQUITY CAPITAL =
430 INTEREST ON DEBT TO ASSOCIATE
COMPANIES =
TOTAL COST OF SERVICE =
<PAGE>
25
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XVII
SCHEDULE OF EXPENSE DISTRIBUTION
BY
DEPARTMENT OR SERVICE FUNCTION
D E P A R T M E N T OR S E R V I C E F U N C T I O N
<CAPTION>
TOTAL OFFICE OF OYSTER THREE MILE THREE MILE
D E S C R I P T I O N O F I T E M S AMOUNT OVERHEAD PRESIDENT CREEK ISLAND I ISLAND II
<S> <C> <C> <C> <C> <C> <C>
920 SALARIES AND WAGES
921 OFFICE SUPPLIES AND EXPENSES
922 ADMINISTRATIVE EXPENSE TRANSFERRED -
CREDIT
923 OUTSIDE SERVICES EMPLOYED
924 PROPERTY INSURANCE
925 INJURIES AND DAMAGES
926 EMPLOYEE PENSIONS AND BENEFITS NOT APPLICABLE
928 REGULATORY COMMISSION EXPENSE
930.1 GENERAL ADVERTISING EXPENSE
930.2 MISCELLANEOUS GENERAL EXPENSES
931 RENTS
932 MAINTENANCE OF STRUCTURES AND
EQUIPMENT
403 DEPRECIATION AND AMORTIZATION
EXPENSE
408 TAXES OTHER THAN INCOME TAXES
409 INCOME TAXES
410 PROVISION FOR DEFERRED INCOME TAXES
411 PROVISION FOR DEFERRED INCOME TAXES
- CREDIT
411.5 INVESTMENT TAX CREDIT
426.1 DONATIONS
426.5 OTHER DEDUCTIONS
427 INTEREST ON LONG-TERM DEBT
430 INTEREST ON DEBT TO ASSOCIATE
COMPANIES
431 OTHER INTEREST EXPENSE
INSTRUCTION: Indicate each department or
service function. (See Instruc-
tion 01-3 General Structure of
Accounting System: Uniform
System Account)
TOTAL EXPENSES =
</TABLE>
<PAGE>
26
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XVII
SCHEDULE OF EXPENSE DISTRIBUTION
BY
DEPARTMENT OR SERVICE FUNCTION
D E P A R T M E N T OR S E R V I C E F U N C T I O N
ACCOUNT TECHNICAL NUCLEAR COMMUN- ADMIN & CORPORATE CORPORATE
NUMBER FUNCTIONS ASSURANCE CATIONS FINANCE SERVICES SECRETARY
920
921
922
923
924
925
926
928
930.1
930.2
931
932
403
408
409
410
411
411.5
426.1
426.5
427
430
431
TOTAL
<PAGE>
<TABLE>
27
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
DEPARTMENTAL ANALYSIS OF SALARIES
ACCOUNT 920
<CAPTION>
DEPARTMENTAL SALARY EXPENSE NUMBER
NAME OF DEPARTMENT INCLUDED IN AMOUNTS BILLED TO PERSONNEL
Indicate each department TOTAL SALARY OTHER NON END OF
or service function. AMOUNT EXPENSE ASSOCIATES ASSOCIATES YEAR
<S> <C> <C> <C> <C> <C>
Energy Initiatives, Inc. $ 3,784 $ 3,784 $ - $ - 46
TOTAL $ 3,784 $ 3,784 $ - $ - 46
<PAGE>
28
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
OUTSIDE SERVICES EMPLOYED
ACCOUNT 923
INSTRUCTIONS: Provide a breakdown by subaccount of outside services
employed. If the aggregate amounts paid to any one payee
and included within one subaccount is less than $25,000,
only the aggregate number and amount of all such payments
included within the subaccount need be shown. Provide a
subtotal for each type of service.
<CAPTION>
RELATIONSHIP
"A"=ASSOCIATE
FROM WHOM PURCHASED ADDRESS "NA"- NON AMOUNT
ASSOCIATE
<S> <C> <C> <C>
Engineering
CH2M Hill 825 N.E. Multnomah NA $ 37
Portland, OR 97232-2146
1 Other (under $25,000) NA 2
Sub-total $ 39
Auditing/Accounting
Coopers & Lybrand 1251 Avenue of the Americas NA $ 103
New York, NY 10020
GPU Service Company 100 Interpace Parkway A 264
Parsippany, NJ 07054
Subtotal $ 367
Consulting
CH2M Hill 825 N. E. Multnomah NA $ 67
Portland, OR 97232-2146
Boston Pacific, Co. 1225 I Street, NW, Suite 890 NA 70
Washington, DC 20005
Don Martin Public Affairs 3345 Bee Caves Road, Suite 212 NA 31
Austin, TX 78746
International Power Sys. 5106 Sandlewood Court NA 53
Corp. Marietta, GA 30068
Micro Business Systems, Inc. 100 Forge Way NA 59
Rockaway, NJ 07866
<PAGE>
28A
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
OUTSIDE SERVICES EMPLOYED
ACCOUNT 923
INSTRUCTIONS: Provide a breakdown by subaccount of outside services employed. If
the aggregate amounts paid to any one payee and included within one
subaccount is less than $25,000, only the aggregate number and amount
of all such payments included within the subaccount need be shown.
Provide a subtotal for each type of service.
RELATIONSHIP
"A"=ASSOCIATE
FROM WHOM PURCHASED ADDRESS "NA"- NON AMOUNT
ASSOCIATE
Consulting(Continued)
Parsons Main, Inc. PO Box 73678 NA 63
Rochester, NY 14673-3678
Slater Consulting 3370 Habersham Road NW NA 108
Atlanta, GA 30305
St. Gallen Consulting Group Rosenberstr 32 CH-9001 NA 38
St. Gallen, Switzerland
39 Others (under $25,000) 376
Subtotal $ 865
Legal
Berlack, Israels & Liberman 120 West 45th Street NA $ 559
New York, NY 10036
Brown, McCarroll & Oaks 1400 Franklin Plaza NA 100
111 Congress Avenue
Austin, TX 78701-4043
Claro y Cia Gertrudis Echenique 30 NA 32
Piso 3, Las Condes
Santiago, Chile
Dewey Ballantine 1775 Pennsylvania Ave., NW NA (120)
Washington, DC 20006
<PAGE>
28B
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
OUTSIDE SERVICES EMPLOYED
ACCOUNT 923
INSTRUCTIONS: Provide a breakdown by subaccount of outside services employed. If
the aggregate amounts paid to any one payee and included within one
subaccount is less than $25,000, only the aggregate number and amount
of all such payments included within the subaccount need be shown.
Provide a subtotal for each type of service.
RELATIONSHIP
"A"=ASSOCIATE
FROM WHOM PURCHASED ADDRESS "NA"- NON AMOUNT
ASSOCIATE
Legal (Continued)
Fischbein, Badillo, Wagner, 909 Third Avenue, 17th Floor NA 30
Itzler New York, NY 10022-4731
Hicks, Maloof & Campbell Marquis Two Tower NA 238
Suite 2200
285 Peachtree Center Avenue, NE
Atlanta, GA 30303
Hunton & Williams Suite 9000 NA 97
2000 Pennsylvania Avenue, NW
Washington, DC 20006
Jenkens & Gilchrist 1445 Ross Avenue NA 78
Suite 3200
Dallas, TX 75202-2799
Jun He Law Office Peace Hotel, 19th Floor NA 56
Beijing, PR CHI
King & Spalding 191 Peachtree Street NA 74
Atlanta, GA 30303-1763
Metzger, Hollis, Gordon 1275 K Street NW NA 36
& Mortimer Washington, DC 20005
Morrison & Foerster 345 California Street NA 42
San Francisco, CA 94104-2675
Prieto, Gutierrez, Carrera 9, No. 74-08, Of. 305 NA 75
Carrioza & Asociados Santa Fe de Bogota D.C., Colombia
<PAGE>
28C
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
OUTSIDE SERVICES EMPLOYED
ACCOUNT 923
INSTRUCTIONS: Provide a breakdown by subaccount of outside services employed. If
the aggregate amounts paid to any one payee and included within one
subaccount is less than $25,000, only the aggregate number and amount
of all such payments included within the subaccount need be shown.
Provide a subtotal for each type of service.
RELATIONSHIP
"A"=ASSOCIATE
FROM WHOM PURCHASED ADDRESS "NA"- NON AMOUNT
ASSOCIATE
Legal (Continued)
Simpson, Thatcher & 425 Lexington Avenue NA 40
Bartlett New York, NY 10017
Stone & Webster 7677 East Barry Avenue NA 30
Engineering Corporation Englewood, CO 80011-2137
Sutherland, Asbill & Brennan 999 Peachtree Street, NE NA 36
Atlanta, GA 30309-3996
Walker, Hulbert, Gray & Byrd P.O. Box 1234 NA 36
Hampton, NH 03842
Winthrop, Stimson, Putnam & One Battery Park Plaza NA 130
Roberts New York, NY 10004-1490
23 Others (under $25,000) 214
Subtotal $1,783
Advertising
20 Others (under $25,000) 43
Subtotal $ 43
<PAGE>
28D
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
OUTSIDE SERVICES EMPLOYED
ACCOUNT 923
INSTRUCTIONS: Provide a breakdown by subaccount of outside services employed. If
the aggregate amounts paid to any one payee and included within one
subaccount is less than $25,000, only the aggregate number and amount
of all such payments included within the subaccount need be shown.
Provide a subtotal for each type of service.
RELATIONSHIP
"A"=ASSOCIATE
FROM WHOM PURCHASED ADDRESS "NA"- NON AMOUNT
ASSOCIATE
Project Development
Black & Veach P.O. Box 27-258 NA 41
Kansas City, MO 64180-0258
Citibank 111 Wall Street NA 370
New York, NY 10043
Confinor Ave. Eng. Duarte Pacheco NA 25
Torre 2, Piso 6, Sala 10
Libson
Export-Import Bank of the US 811 Vermont Ave., NW NA 93
Washington, DC 20571
Frito Lay, Inc. 7701 Legacy Drive NA 100
Plano, TX 75024
Intesol International, Ltd. Peace Hotel, 19th Floor NA 688
Beijing, China 100004
OPIC U.S. Treasury Department NA 728
New York, NY
PENELEC 1001 Broad Street A 31
Johnstown, PA
Polsky Energy Corporation Edens Corporate Center A 354
650 Dundee Road, Suite 170
Northbrook, IL 60062
Rand Brothers & Company 28 East Marion Street NA 49
Princeton, IL 61356
<PAGE>
28E
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
OUTSIDE SERVICES EMPLOYED
ACCOUNT 923
INSTRUCTIONS: Provide a breakdown by subaccount of outside services employed. If
the aggregate amounts paid to any one payee and included within one
subaccount is less than $25,000, only the aggregate number and amount
of all such payments included within the subaccount need be shown.
Provide a subtotal for each type of service.
RELATIONSHIP
"A"=ASSOCIATE
FROM WHOM PURCHASED ADDRESS "NA"- NON AMOUNT
ASSOCIATE
Project Development (Continued)
SEF Cogen Corporation 1041 Third Avenue, 2nd Floor NA 41
New York, NY 10021
The Bureau of National Affairs P.O. Box 64543 NA 30
Baltimore, MD 21264
28 Others (under $25,000) 160
Subtotal 2,710
Computer
GPU Service Corp 100 Interpace Parkway A 58
12 Others (under $25,000) Parsippany, NJ 07054 23
Subtotal 81
Total Outside Professional Services $5,888
</TABLE>
<PAGE>
29
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
EMPLOYEE PENSIONS AND BENEFITS
ACCOUNT 926
INSTRUCTIONS: Provide a listing of each pension plan and benefit program
provided by the service company. Such listing should be limited
to $25,000.
D E S C R I P T I O N AMOUNT
GROUP LIFE INSURANCE $ (105)
HEALTH AND DENTAL INSURANCE 196
PENSION PLANS 43
EMPLOYEE SAVINGS PLAN 91
EDUCATIONAL REIMBURSEMENT 34
VACATION ACCRUAL 137
DEFERRED COMPENSATION 27
2 OTHER BENEFITS (Under $25,000) 20
TOTAL $ 443
<PAGE>
30
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
GENERAL ADVERTISING EXPENSES
ACCOUNT 930.1
INSTRUCTIONS: Provide a listing of the amount included in Account 930.1,
"General Advertising Expenses", classifying the items according
to the nature of the advertising and as defined in the account
definition. If a particular class includes an amount in excess
of $3,000 applicable to a single payee, show separately the name
of the payee and the aggregate amount applicable thereto.
D E S C R I P T I O N NAME OF PAYEE AMOUNT
NONE
TOTAL -
<PAGE>
31
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
MISCELLANEOUS GENERAL EXPENSES
ACCOUNT 930.2
INSTRUCTIONS: Provide a listing of the amount included in Account 930.2,
"Miscellaneous General Expenses", classifying such expenses
according to their nature. Payments and expenses permitted by
Section 321 (b) (2) of the Federal Election Campaign Act, as
amended by Public Law 94-283 in 1976 (2 U.S.C.S. 441 (b) (2)
shall be separately classified.
D E S C R I P T I O N AMOUNT
Employee Travel Expense $ 550
Employee Recruiting and Relocation Expense 302
Employee Training Expense 68
Other 98
TOTAL $ 1 018
<PAGE>
32
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
RENTS
ACCOUNT 931
INSTRUCTIONS: Provide a listing of the amount included in Account 931,
"Rents", classifying such expenses by major groupings of
property, as defined in the account definition of the Uniform
System of Accounts.
T Y P E O F P R O P E R T Y AMOUNT
OFFICE SPACE $ 395
TOTAL $ 395
<PAGE>
33
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
TAXES OTHER THAN INCOME TAXES
ACCOUNT 408
INSTRUCTION: Provide an analysis of Account 408, "Taxes Other Than Income
Taxes". Separate the analysis into two groups: (1) other than
U.S. Government taxes, and (2) U.S. Government taxes. Specify
each of the various kinds of taxes and show the amounts thereof.
Provide a subtotal for each class of tax.
K I N D O F T A X AMOUNT
(1) U.S. GOVERNMENT TAXES
FEDERAL UNEMPLOYMENT COMPENSATION $ 3
FICA 197
Sub Total 200
(2) OTHER THAN U.S. GOVERNMENT TAXES
NEW YORK GROSS RECEIPTS TAXES 407
SUI 36
Sub Total 443
TOTAL $ 643
<PAGE>
34
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
DONATIONS
ACCOUNT 426.1
INSTRUCTION: Provide a listing of the amount included in Account 426.1,
"Donations", classifying such expenses by its purpose. The
aggregate number and amount of all items of less than $3,000 may
be shown in lieu of details.
NAME OF RECIPIENT PURPOSE OF DONATION AMOUNT
NONE
<PAGE>
35
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
OTHER DEDUCTIONS
ACCOUNT 426.5
INSTRUCTIONS: Provide a listing of the amount included in
Account 426.5, "Other Deductions",
classifying such expenses according to
their nature.
D E S C R I P T I O N NAME OF PAYEE AMOUNT
NONE
<PAGE>
36
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
SCHEDULE XVIII
NOTES TO STATEMENT OF INCOME
INSTRUCTIONS: The space below is provided for important notes regarding the
statement of income or any account thereof. Furnish particulars
as to any significant increase in services rendered or expenses
incurred during the year. Notes relating to financial
statements shown elsewhere in this report may be indicated here
by reference.
See "Notes to Financial Statements" on Schedule XIV.
<PAGE>
37
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
For the Year Ended December 31, 1995
ORGANIZATION CHART
________________________________________
| |
| |
| |
| BOARD OF DIRECTORS |
| Chairman |
|________________________________________|
| |
| PRESIDENT & CEO |
|______________________________________|
| DIRECTOR, LEGAL & CORPORATE |
| AFFAIRS AND CORPORATE SECRETARY |
|____________________________________|
| |
| V.P. OF FINANCE AND TREASURER |
| ___________________________________|
| |
| V.P. BUSINESS OPERATIONS |
|____________________________________|
| |
| V.P. BUSINESS DEVELOPMENT |
|____________________________________|
| |
| CONTROLLER |
|____________________________________|
<PAGE>
38
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
METHODS OF ALLOCATION
Not Applicable
<PAGE>
39
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
ANNUAL STATEMENT OF COMPENSATION FOR USE OF CAPITAL BILLED
NONE
<PAGE>
40
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
VENTURE DISCLOSURES
In accordance with discussions with the staff, financial statements for
projects in which EII owns interests will be included in a Certificate
Pursuant to Rule 24 to be filed under the 1935 Act for the quarter ended
March 31, 1996, pursuant to the order dated November 16, 1995 (HCAR No. 26123;
File No. 70-7727).
<PAGE>
ANNUAL REPORT OF ENERGY INITIATIVES, INC.
SIGNATURE CLAUSE
Pursuant to the requirements of the Public
Utility Holding Company Act of 1935 and the rules
and regulations of the Securities and Exchange
Commission issued thereunder, the undersigned
company has duly caused this report to be signed
on its behalf by the undersigned officer thereunto
duly authorized.
ENERGY INITIATIVES, INC.
(Name of Reporting Company)
By: /s/ B. L. Levy
(Signature of Signing Officer)
B. L. Levy, President and CEO
(Printed Name and Title of Signing Officer)
Date: 5/1/96
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS Exhibit F-1
Part III.
The following pages consist of disclosures made in GPU's 1996 Proxy
Statement as well as disclosures made in the GPU and System Companies' 1995
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, 1996, 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. The Corporation has been
advised that as of December 31, 1995, Franklin Resources, Inc. ("Franklin"),
777 Mariners Island Boulevard, San Mateo, California 94404, beneficially owned
(with shared dispositive power) 7,003,402 shares of GPU Common Stock, or 5.8%
of the outstanding shares on such date, of which 6,964,120 shares Franklin
also beneficially owned with sole voting power.
Amount and Nature
of Beneficial
Name Title of Security Ownership(1)
Louis J. Appell, Jr. GPU Common Stock 2,000 shares-Direct
4,274 shares-Indirect
Theodore H. Black GPU Common Stock 7,359 shares-Direct
Philip R. Clark GPU Common Stock 4,306 shares-Direct
362 shares-Indirect
John G. Graham GPU Common Stock 4,321 shares-Direct
1,180 shares-Indirect
Fred D. Hafer GPU Common Stock 4,756 shares-Direct
124 shares-Indirect
Henry F. Henderson, Jr. GPU Common Stock 2,811 shares-Direct
1,200 shares-Indirect
Ira H. Jolles GPU Common Stock 5,515 shares-Direct
James R. Leva GPU Common Stock 4,376 shares-Direct
100 shares-Indirect
John M. Pietruski GPU Common Stock 4,000 shares-Direct
Catherine A. Rein GPU Common Stock 2,562 shares-Direct
Paul R. Roedel GPU Common Stock 2,600 shares-Direct
Carlisle A. H. Trost GPU Common Stock 2,117 shares-Direct
Robert L. Wise GPU Common Stock 4,982 shares-Direct
Patricia K. Woolf GPU Common Stock 3,277 shares-Direct
All GPU Directors and
Executive Officers
as a Group GPU Common Stock 65,502 shares-Direct
11,183 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, COMPENSATION AND NOMINATING COMMITTEE REPORT
The executive compensation program at GPU was revised in 1995 to
increase the portion of pay that is based on business results and to
strengthen the link between compensation and shareholder value. Accordingly,
the Corporation modified each of the three interrelated programs of executive
compensation - the Base Salary Program, the Incentive Compensation Program and
the 1990 Stock Plan -in 1995.
Compensation Philosophy and Market Comparisons
GPU's overall philosophy of executive compensation remains unchanged.
The Corporation's objective is to attract and retain high caliber executive
talent and to provide appropriate rewards when business objectives are
achieved. Pay levels are intended to vary with the achievement of business
objectives and with individual contribution to that achievement.
GPU continues to target executive pay at the median or 50th percentile
of the competitive market when business objectives have been fully achieved.
Actual pay levels will vary and may be above or below the median in any given
year based on actual business results for the year.
In defining median competitive pay levels, GPU retains a major
compensation consulting firm to provide an objective analysis. The
competitive market data is developed based on other companies which are
believed to employ executives with similar levels of skill, experience and
expertise and in positions similar to those at GPU. These companies are
primarily, but not exclusively, other large electric utilities. The companies
used for compensation comparisons include most but not all of the companies in
the S&P Electric Utility Index shown in the chart on page 10 of this exhibit.
In addition, some companies not included in the Index are also used for
comparison because GPU competes for executive talent in a larger market than
is reflected in the Index.
Base Salary Program
Base salary is the most stable portion of executive compensation and
does not directly vary with business results. The program has historically
been designed and managed to provide a range of salary opportunities for each
position with the middle of the range approximating the market median. For
many years, the Board traditionally reviewed the salaries of executives each
year considering market data, individual performance and contribution, and the
Corporation's financial resources in determining if any increases were
appropriate. This process, which involves subjective judgment, typically
resulted in merit salary increases for most executives.
-2-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
Similarly, in 1995, competitive market data and the Board's assessment
of executive performance made salary increases appropriate. As part of the
Corporation's shift to increased variable pay with a greater emphasis on the
link to business results, however, the Board determined not to make any normal
increases in base salaries for executives. Instead, executives were provided
with an opportunity to earn higher levels of annual incentive compensation,
but only to the extent business results were achieved.
Neither Mr. Leva nor any of the other named executives received salary
increases in 1995. Salary levels continue on average to approximate the
median of the competitive market. Differences between full year salaries for
1994 and 1995 shown in the Summary Compensation Table on page 7 of this
exhibit result from increases granted mid-year in 1994. Salary levels
established at that time have not been adjusted.
This decreased emphasis on base salary compensation and corresponding
increase in annual incentive compensation opportunity is part of a planned two
year program that will be continued in 1996 when the Board intends to again
eliminate normal salary increases in favor of additional increased incentive
opportunity.
Incentive Compensation Program
The Incentive Compensation Program provides executives with an
opportunity to earn additional cash compensation if business objectives are
achieved. As indicated above, this program was modified in 1995. Targeted
levels of annual incentive compensation for executives were increased to
offset the elimination of base salary increases. These target levels are
designed to approximate the competitive median.
Actual awards of incentive compensation for named executives other than
Mr. Leva are based on the achievement of specific business objectives
established for the GPU company to which the executive is assigned and on the
achievement of the Corporation's return on equity objective. In addition, the
individual performance and contribution of each executive is considered. The
Board uses subjective judgment in assessing this individual performance and
contribution.
For the utility subsidiaries (JCP&L and Met-Ed/Penelec), objectives were
earnings (50%), capital spending (20%), the all-in price to customers per
kilowatt-hour sold (15%), and efforts to deal with industry change (15%).
For GPU Nuclear, objectives were safety (50%), budget management (30%)
and generation (20%). For the fossil generation function, objectives were
performance, defined as plant availability and efficiency and structuring the
company (25%), budget management (45%), safety (15%) and environmental factors
(15%).
-3-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
For the corporate functions at GPU Service Corporation, objectives were
system-wide budget management (40%), efforts to position the Corporation for
the changing industry (30%) and future positioning of the Corporation with
regard to the cost of energy supply (30%).
Overall results were above target at the utility companies and earnings
goals were exceeded at each company. One company significantly exceeded its
capital spending objective while the other was slightly under target. The
all-in price to customer goal was under target at one company and slightly
above at the other. Both JCP&L and Met-Ed/Penelec significantly exceeded
objectives in their efforts to respond to the changing industry.
GPU Nuclear significantly exceeded each of its objectives. Each measure
of nuclear safety was at or above target. Both operating nuclear plants
received an "exemplary" safety rating from the Institute of Nuclear Power
Operations. Budget management objectives were also exceeded, and generation
levels were well above targets with the Oyster Creek facility setting new
plant performance records.
At the fossil generation function, the performance objective was
achieved while the budget management, safety and environmental goals were each
exceeded.
For GPU Service, each of the established objectives was exceeded.
System-wide budget management was above target and the two future positioning
goals were exceeded.
The Corporation's return on equity objective was exceeded for the year.
Achievement of this objective serves as a "multiplier" applied to individual
company results in determining incentive awards.
Award for Mr. Leva
Mr. Leva's award was based on some of the same criteria used to
determine awards for other executives; however, different weightings were used
reflecting his overall responsibility for the Corporation's success. Mr.
Leva's award was based on objectives of return on equity (40%), nuclear safety
(20%), efforts to position the Corporation for the changing industry (20%) and
future positioning of the Corporation with regard to the cost of energy supply
(20%).
The return on equity objective, as noted, was exceeded and nuclear
safety measures were at or above target.
Efforts to position the Corporation for the changing utility industry
were deemed to be well above objectives. Among the accomplishments resulting
from Mr. Leva's leadership were specific actions taken to enhance the
Corporation's competitive position including the sale of an additional 5
-4-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
million shares of stock and refinancing of significant long-term debt at more
favorable rates. GPU also took a leadership position in supporting
legislative and regulatory changes considered essential if the Corporation is
to compete effectively in the future.
A new Corporate Development function was established to investigate and
pursue new business opportunities in areas such as distributed generation,
retail energy services and nuclear decommissioning services. In addition, the
Energy Initiatives Group expanded its independent power development contracts
to take advantage of opportunities in Australia and South America in 1995.
Mr. Leva continued to provide both leadership and a personal example of
support for the cultural change efforts at GPU. These culture change efforts
include initiatives to educate employees on the need to increase their focus
on business results. Among these initiatives is a newly implemented program
of expanded incentive pay opportunities whereby most of the GPU workforce now
have a portion of pay linked to achievement of business results.
Efforts to enhance the Corporation's future position with regard to
energy supply and cost were also deemed to have exceeded target. Again under
Mr. Leva's leadership, a number of highly uneconomic contracts with non-
utility power generators were successfully terminated or renegotiated. As
part of efforts to increase the Corporation's technical competence in the
power supply market, a Power Marketing group was formed with responsibility to
develop appropriate benchmarks and a comprehensive business plan. A rigorous
analysis of existing generating facilities and their future potential was
undertaken as part of an overall strategic plan for generation.
Consistent with plan design, actual incentive pay awards for the named
executives for 1995 were, on average, somewhat above competitive medians
reflecting the achievement levels described.
1990 Stock Plan
The 1990 Stock Plan, which was approved by shareholders, provides the
Board with the discretion to use several different stock compensation
vehicles. In 1995, the Board initiated the use of performance restricted
units reflecting its judgment that such units provide a stronger link to
increases in shareholder value.
Performance restricted units give the executive the right to receive
shares of GPU Common Stock (or cash at the discretion of the Committee)
provided that certain performance objectives are achieved. For the 1995
grants, the performance measure is GPU's total shareholder return compared to
the total return of companies in the S&P Electric Utility Index. The
percentile ranking of GPU's total shareholder return among the Index
companies, calculated quarterly over the five year performance period and
averaged, will determine how many shares, if any, are actually received by the
executive at the end of the performance period.
-5-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
Executives are awarded a specific number of units and dividend
equivalents are paid on these units and reinvested in additional units. The
number of units that vest at the end of the performance period, however, may
differ significantly from the number initially awarded. The awarded number of
units (plus reinvested dividend equivalents) will vest if GPU's total return
is at the targeted level of the 55th percentile of Index companies.
Additional units will vest if total return is at a higher level and fewer will
vest if total return is lower. No units will vest if total return is below
the 40th percentile.
Awards to executives reflect median competitive levels and the
individual contribution and performance of the executive. These factors are
not weighted and the Board uses subjective judgment in determining specific
awards.
Award for Mr. Leva
Because Mr. Leva's normal retirement date is in 1997, the Board
determined that the program of annual performance unit grants with a five year
performance period would be inappropriate for him. Consequently, the Board
awarded Mr. Leva a one-time grant in 1995 approximately equal in size to three
median competitive annual grants. This one-time grant has a three year
performance period from 1995 through 1997 and is subject to the same
performance requirements as described above. The Board does not intend to
make any additional Stock Plan awards to Mr. Leva in the next two years.
Personnel, Compensation and Nominating
Committee Members
Louis J. Appell, Jr.
Theodore H. Black
John M. Pietruski
Catherine A. Rein
-6-
<PAGE>
<TABLE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
<CAPTION>
SUMMARY COMPENSATION TABLE
Annual Compensation Long-Term Compensation
Awards Payouts
Other
Name and Annual Restricted All Other
Principal Compen- Stock/Unit LTIP Compen-
Position Year Salary Bonus sation(1) Awards(2) Payouts(3) sation
<S> <C> <C> <C> <C> <C> <C> <C>
James R. Leva 1995 $585,000 $333,450 $ - $ - $ 44,131 $ 80,850(4)
Chairman, President and 1994 573,750 292,500 - 117,563 - 68,409
Chief Executive Officer, 1993 523,750 189,000 - 124,000 - 54,291
General Public Utilities
Corporation
Philip R. Clark 1995 331,692(5) 150,600 181 - 316,779 25,871(6)
President, GPU 1994 304,750 84,000 277 44,021 - 21,329
Nuclear Corporation 1993 291,250 80,000 911 48,825 - 29,126
Ira H. Jolles 1995 331,000 116,000 - - 57,207 27,757(7)
Senior Vice President 1994 327,750 83,000 - 47,025 - 24,114
and General Counsel, 1993 314,750 69,000 - 49,600 - 23,724
General Public Utilities
Corporation
Robert L. Wise 1995 293,000 138,600 - - 44,131 29,862(8)
President, GPU 1994 290,000 81,000 - 41,931 - 23,945
Generation Corporation 1993 278,250 67,000 - 43,710 - 30,012
John G. Graham 1995 280,000 98,000 - - 42,292 32,234(9)
Senior Vice President and 1994 276,250 75,000 - 39,841 - 29,582
Chief Financial Officer, 1993 261,250 59,000 - 41,850 - 40,740
General Public Utilities
Corporation
Fred D. Hafer 1995 280,000 94,000 - - 40,454 23,076(10)
President, Metropolitan 1994 275,250 77,000 - 39,841 - 19,733
Edison Company and 1993 258,250 50,000 - 41,850 - 18,975
Pennsylvania Electric
Company
(1) "Other Annual Compensation" is composed entirely of the above-market
interest accrued on the pre-retirement portion of deferred compensation.
(2) The restricted units issued in 1995 under the 1990 Stock Plan for
Employees of GPU Corporation and Subsidiaries (the "1990 Stock Plan")
are performance based as shown in "Long-Term Incentive Plans - Awards in
Last Fiscal Year" table (the "LTIP table"). Dividends are paid or
accrued on the aggregate restricted shares/units awarded under the 1990
Stock Plan and reinvested.
-7-
</TABLE>
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
The aggregate number and value (based on the stock price per share at
December 31, 1995) of nonvested restricted shares/units includes the
amounts shown on the LTIP table and at the end of 1995 were:
Aggregate Shares/Units Aggregate Value
James R. Leva 42,050 $1,429,700
Philip R. Clark 5,060 $ 172,040
Ira H. Jolles 10,675 $ 362,950
Robert L. Wise 9,700 $ 329,800
John G. Graham 8,925 $ 303,450
Fred D. Hafer 8,875 $ 301,750
(3) Consists of Performance Cash Incentive Awards paid on the 1990
restricted stock awards which have vested under the 1990 Stock Plan.
These amounts are designed to compensate recipients of restricted
stock/unit awards for the amount of federal and state income taxes that
are payable upon vesting of the restricted stock/unit awards. Amounts
for Mr. Clark include Performance Cash Incentive Awards of $44,131 on
the 1990 restricted stock award, $180,248 on the 1992, 1993 and 1994
restricted stock awards which vested upon his retirement and $92,400
paid in cash in lieu of receiving restricted units in 1995.
(4) Consists of the Corporation's matching contributions under the Savings
Plan ($6,000), matching contributions under the non-qualified deferred
compensation plan ($29,100), the benefit of interest-free use of the
non-term portion of employer paid premiums for split-dollar life
insurance ($38,988), and above-market interest accrued on the retirement
portion of deferred compensation ($6,762).
(5) Mr. Clark retired as president of GPU Nuclear Corporation effective
December 31, 1995. The 1995 salary amount for Mr. Clark includes
$23,692 of accrued vacation paid upon his retirement.
(6) Consists of the Corporation's matching contributions under the Savings
Plan ($6,000), matching contributions under the non-qualified deferred
compensation plan ($9,680), the benefit of interest-free use of the non-
term portion of employer paid premiums for split-dollar life insurance
($4,401), and above-market interest accrued on the retirement portion of
deferred compensation ($5,790).
(7) Consists of the Corporation's matching contributions under the Savings
Plan ($6,000), matching contributions under the non-qualified deferred
compensation plan ($10,560), the benefit of interest-free use of the
non-term portion of employer paid premiums for split-dollar life
insurance ($10,723), and above-market interest accrued on the retirement
portion of deferred compensation ($474).
-8-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
(8) Consists of the Corporation's matching contributions under the Savings
Plan ($6,000), matching contributions under the non-qualified deferred
compensation plan ($8,960), the benefit of interest-free use of the non-
term portion of employer paid premiums for split-dollar life insurance
($8,124), and above-market interest accrued on the retirement portion of
deferred compensation ($6,778).
(9) Consists of the Corporation's matching contributions under the Savings
Plan ($6,000), matching contributions under the non-qualified deferred
compensation plan ($8,200), the benefit of interest-free use of the non-
term portion of employer paid premiums for split-dollar life insurance
($9,499), and above-market interest accrued on the retirement portion of
deferred compensation ($8,535).
(10) Consists of the Corporation's matching contributions under the Savings
Plan ($6,000), matching contributions under the non-qualified deferred
compensation plan ($8,280), the benefit of interest-free use of the non-
term portion of employer paid premiums for split-dollar life insurance
($8,548), and above-market interest accrued on the retirement portion of
deferred compensation ($248).
NOTE: The split-dollar life insurance amounts reported in the "All Other
Compensation" column are equal to the present value of the interest-free use
of the current year Corporation paid premiums to the projected date the
premiums will be refunded to the Corporation.
<TABLE>
LONG-TERM INCENTIVE PLANS - AWARDS IN LAST FISCAL YEAR
<CAPTION>
Performance Estimated future payouts under
Number of or other non-stock price based plans(1)
shares, period until
units or maturation Threshold Target Maximum
Name other rights or payout ($ or #) ($ or #) ($ or #)
<S> <C> <C> <C> <C> <C>
James R. Leva (2) 27,750 3 year vesting $ 0 $943,500 $1,887,000
Philip R. Clark (3) - - $ 0 $ 0 $ 0
Ira H. Jolles 3,425 5 year vesting $ 0 $116,450 $ 232,900
Robert L. Wise 3,035 5 year vesting $ 0 $103,190 $ 206,380
John G. Graham 3,000 5 year vesting $ 0 $102,000 $ 204,000
Fred D. Hafer 2,900 5 year vesting $ 0 $ 98,600 $ 197,200
</TABLE>
-9-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
(1) The restricted units issued in 1995 under the 1990 Stock Plan provide
for a performance adjustment to the aggregate number of units vesting
for the recipient based on the annualized GPU Total Shareholder Return
(TSR) percentile ranking against all companies in the Standard & Poor's
Electric Utility Index for the period between the award and vesting
dates. With a 55th percentile ranking, the performance adjustment would
be 100% as reflected in the "Target" column. In the event that the
percentile ranking is below the 55th percentile, the performance
adjustment would be reduced in steps reaching 0% at the 39th percentile
as reflected in the "Threshold" column. Should the TSR percentile
ranking exceed the 59th percentile, then the performance adjustment
would be increased in steps reaching 200% at the 90th percentile as
reflected in the "Maximum" column. The estimated future payouts are
computed based on the number of restricted units awarded for 1995
multiplied by the 1995 year-end market value of $34 per share. Actual
payouts under the Plan would be based on the actual number of shares
issued and the market value of those shares at the time the restrictions
lapse, and may be different from those indicated above.
(2) The 1995 award for Mr. Leva represents an amount intended to provide
incentives for 1995, 1996 and 1997.
(3) The $92,400 in cash received by Mr. Clark in lieu of receiving
restricted units in 1995 is disclosed in the Summary Compensation Table
under LTIP Payouts.
Comparison of Five Year Cumulative Total Return*
GPU, S&P 500 Index and S&P Electric Utility Index
($)
Amount
Invested
1/1/91 1991 1992 1993 1994 1995
GPU 100 127 137 161 146 202
S&P 500 100 131 140 155 157 215
S&P Electric Utility 100 130 138 155 135 177
* Assumes $100 invested on January 1, 1991 in GPU Common Stock, S&P
500 Index and S&P Electric Utility Index. Cumulative Total Return
includes reinvestment of dividends.
-10-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
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.
Upon retirement Mr. Jolles will also receive (a) an extension of health
insurance benefits to the later of his 62nd birthday and the third anniversary
of retirement and (b) an amended split-dollar life insurance supplement to
provide for eligibility for full benefits at age 55 with 10 years of 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.
Mr. Jolles will also be entitled to receive such additional monthly
payment, if any, to ensure that the aggregate monthly pension amount otherwise
payable to him under GPUSC's retirement plans is not less than: (a)
$10,825.75 for each month beginning after retirement and before the month
beginning after Mr. Jolles' 62nd birthday or (b) $10,325.75 for each month
beginning after the later of his retirement date and his 62nd birthday.
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.
-11-
<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 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.
Benefit Protection Trusts
The Corporation has entered into benefit protection trust agreements to
be used to fund the Corporation's obligations to executive officers and
directors under deferred compensation and incentive programs and agreements,
and with respect to certain retirement and termination benefits, in the event
of a change in control. The trusts may also be used for the purpose of paying
legal expenses incurred in pursuing benefit claims under such programs and
agreements following a change in control. The trusts are currently partially
funded.
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 1996 (computed
on a single life annuity basis) to persons in specified salary and years of
service classifications:
-12-
<PAGE>
<TABLE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
ESTIMATED ANNUAL RETIREMENT BENEFITS (2) (3) (4) (5)
BASED UPON CAREER AVERAGE COMPENSATION
(1996 Retirement)
<CAPTION>
Career
Average
Compen- 10 Years 15 Years 20 Years 25 Years 30 Years 35 Years 40 Years 45 Years
sation(1) of Service of Service of Service of Service of Service of Service of Service of Service
<S> <C> <C> <C> <C> <C> <C> <C> <C>
$ 50,000 $ 9,378 $ 14,067 $ 18,756 $ 23,445 $ 28,134 $ 32,823 $ 37,236 $ 41,236
100,000 19,378 29,067 38,756 48,445 58,134 67,823 76,836 84,836
150,000 29,378 44,067 58,756 73,445 88,134 102,823 116,436 128,436
200,000 39,378 59,067 78,756 98,445 118,134 137,823 156,036 172,036
250,000 49,378 74,067 98,756 123,445 148,134 172,823 195,636 215,636
300,000 59,378 89,067 118,756 148,445 178,134 207,823 235,236 259,236
350,000 69,378 104,067 138,756 173,445 208,134 242,823 274,836 302,836
400,000 79,378 119,067 158,756 198,445 238,134 277,823 314,436 346,436
450,000 89,378 134,067 178,756 223,445 268,134 312,823 354,036 390,036
500,000 99,378 149,067 198,756 248,445 298,134 347,823 393,636 433,636
550,000 109,378 164,067 218,756 273,445 328,134 382,823 433,236 477,236
600,000 119,378 179,067 238,756 298,445 358,134 417,823 472,836 520,836
650,000 129,378 194,067 258,756 323,445 388,134 452,823 512,436 564,436
700,000 139,378 209,067 278,756 348,445 418,134 487,823 552,036 608,036
750,000 149,378 224,067 298,756 373,445 448,134 522,823 591,636 651,636
800,000 159,378 239,067 318,756 398,445 478,134 557,823 631,236 695,236
______________
(1) Career Average Compensation is the average annual compensation received
from January 1, 1984 to retirement and includes Salary and Bonus. 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 - $414,445; Clark - $288,793; Wise - $253,349;
Graham - $263,920; and Hafer - $249,444.
(2) Years of Creditable Service at December 31, 1995: Messrs. Leva - 44
years; Clark - 24 years; Jolles - 14 years; Wise - 32 years; Graham - 26
years; and Hafer - 33 years.
(3) Certain of these executives have supplemental pension arrangements.
Based on assumed retirement in 1996 with current years of creditable
service, the total pension benefit amounts payable to Mr. Leva are
$541,114 ($352,521 basic pension per the above table and $188,593 under
supplemental pension agreements); to Mr. Jolles are $129,909 ($106,542
basic pension per the above table and $23,367 under a supplemental
-13-
</TABLE>
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
pension agreement); and to Mr. Graham are $151,842 ($135,703 basic
pension per the above table and $16,139 under a supplemental pension
agreement). Total pension benefit amounts payable to Mr. Clark, who
retired as of December 31, 1995, are $200,795 ($135,838 basic pension
per the above table and $64,957 under a supplemental pension agreement).
(4) Based on an assumed retirement at age 65 in 1996. 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.
(5) Annual retirement benefits under the basic pension per the above table
cannot exceed 55% of the average compensation during the highest paid 36
calendar months.
Supplemental Pensions
The Corporation has adopted supplemental pension programs for Messrs.
Leva, Jolles, Graham and Clark as described below. The supplemental pension
payments are not funded, but are payable from GPU System sources. The
programs provide that supplemental pension payments (assuming the lower scale
payment described below applies) are to be increased by 20% during the first
year following retirement.
Mr. Leva will receive an annual supplemental pension equal to (a) 65% of
his final average compensation (as defined), reduced by (b) in general, the
aggregate annual pension amount payable to him under other GPUSC retirement
plans. "Final average compensation" is defined as Mr. Leva's average annual
salary and bonus compensation paid for the three years prior to retirement.
Assuming Mr. Leva retires at normal retirement age, the estimated monthly
pension payable to him under the foregoing supplemental pension would be
$15,406. Mr. Leva will also receive upon retirement a separate supplemental
pension payment of $3,726 annually.
Mr. Jolles will receive supplemental pensions as described above. See
"Employment, Termination and Change in Control Arrangements--Mr. Jolles."
Mr. Graham will be entitled to receive such additional monthly payment,
if any, to ensure that the aggregate monthly pension amount otherwise payable
to him under GPUSC's retirement plans is not less than: (a) $12,653.50 for
each month beginning after his retirement date and before the month beginning
after his 62nd birthday or (b) $12,153.50 for each month beginning after the
later of his retirement date and his 62nd birthday. Mr. Graham will also
receive (i) an extension of health insurance benefits to the later of his 62nd
birthday and the third anniversary of retirement and (ii) an amended split-
dollar life insurance supplement to provide for eligibility for full benefits
under his policy at age 55 with 10 years of service.
-14-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
The supplemental pensions payable to Messrs. Leva and Graham will be
paid in the form of a single life annuity, provided that if the executive is
married on his retirement date, it will be payable to him at a reduced rate,
and, following his death, his surviving spouse, if any, will receive an
annuity payable for life equal to 50% of the supplemental pension payable to
him. In addition, in the event of the executive's death before he retires,
his surviving spouse, if any, will receive an annuity payable for life equal
to 50% of the supplemental pension that would have been payable to him had he
retired on the last day of the month in which his death occurs.
Mr. Clark, who retired effective December 31, 1995, receives an annual
supplemental pension of $77,949 during 1996 and $64,957 annually thereafter.
Following his death, his surviving spouse, if any, will receive a life annuity
of $32,479 per year.
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, Compensation and Nominating Committee, commencing at the later
of age 60 or upon retirement. As of December 31, 1995, the following
directors had at least 54 months of service:
Director Months of Service
Louis J. Appell, Jr. 275
Theodore H. Black 94
Henry F. Henderson, Jr. 83
Paul R. Roedel 204
John M. Pietruski 83
Catherine A. Rein 83
Carlisle A. H. Trost 60
Patricia K. Woolf 149
-15-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
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.
-16-
<PAGE>
<TABLE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
Jersey Central Power & Light Company
Metropolitan Edison/Pennsylvania Electric Company
EXECUTIVE COMPENSATION.
The managements of Met-Ed and Penelec were combined in a 1994 reorganization.
Accordingly, the amounts shown below represent the aggregate remuneration paid
to such executive officers by Met-Ed and Penelec during 1995.
Remuneration of Executive Officers
SUMMARY COMPENSATION TABLE
<CAPTION>
Annual Compensation Long-Term Compensation
Awards Payouts
<S> <C> <C> <C> <C> <C> <C> <C>
Other
Name and Annual Restricted All Other
Principal Compen- Stock/Unit LTIP Compen-
Position Year Salary Bonus sation(1) Awards (2) Payouts(3) sation
J. R. Leva
Chairman of the Board
and Chief Executive
Officer (4) (4) (4) (4) (4) (4) (4)
JCP&L:
D. Baldassari 1995 $275,000 $86,000 $ 94 $ - $ 9,930 $19,425 (5)
President 1994 271,250 62,000 17 39,188 - 16,823
1993 253,750 57,000 - 41,850 - 15,436
M. P. Morrell 1995 151,700 45,000 712 - 11,033 7,162 (6)
Vice President - 1994 150,175 27,300 804 15,936 - 6,000
Regulatory and 1993 144,200 26,000 1,932 15,500 - 5,768
Public Affairs
E. J. McCarthy 1995 145,000 39,000 - - 9,930 6,074 (7)
Vice President - 1994 136,267 26,100 - 13,324 - 5,451
Customer Operations 1993 125,825 22,500 - 13,020 - 5,033
and Sales
D. W. Myers 1995 144,000 34,000 - - 10,665 5,280 (8)
Vice President - 1994 142,125 29,300 - 13,716 - 5,685
Operations Support 1993 135,125 22,400 - 13,950 - 5,405
and Comptroller
R. S. Cohen 1995 128,400 30,000 - - 9,930 5,459 (9)
Secretary and 1994 127,225 22,800 - 12,018 - 5,089
Corporate Counsel 1993 122,500 19,500 - 12,710 - 4,902
</TABLE>
-17-<PAGE>
<TABLE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
JCP&L
MET-ED/PENELEC
<CAPTION>
Annual Compensation Long-Term Compensation
Awards Payouts
<S> <C> <C> <C> <C> <C> <C> <C>
Other
Name and Annual Restricted All Other
Principal Compen- Stock/Unit LTIP Compen-
Position Year Salary Bonus sation(1) Awards (2) Payouts(3) sation
Met-Ed/Penelec:
F. D. Hafer 1995 $280,000 $94,000 $ - $ - $40,454 $23,076 (10)
President 1994 275,250 77,000 - 39,841 - 19,733
1993 258,250 50,000 - 41,850 - 18,975
J. G. Herbein (11) 1995 149,500 62,000 - - 98,466 11,181 (12)
Vice President - 1994 148,025 34,000 - 14,238 - 9,861
Generation 1993 142,200 25,900 - 15,190 - 15,338
R. J. Toole 1995 143,500 53,650 - - 10,297 6,962 (13)
Vice President - 1994 142,125 30,100 - 13,716 - 5,685
Generation 1993 136,750 21,000 - 13,950 - 5,470
G. R. Repko 1995 147,100 48,000 - - 9,930 6,066 (14)
Vice President - 1994 142,225 32,000 - 14,630 - 5,689
Customer Services 1993 129,100 24,200 - 13,330 - 5,164
and Operations
R. S. Zechman 1995 142,500 46,000 - - 8,318 6,000 (15)
Vice President - 1994 132,500 31,000 - 13,324 - 5,300
Administration 1993 118,750 17,000 - 12,400 - 4,750
and Finance
(1) "Other Annual Compensation" is composed entirely of the above-market
interest accrued on the pre-retirement portion of deferred compensation.
(2) The restricted units issued in 1995 under the 1990 Stock Plan for
Employees of GPU Corporation and Subsidiaries (the "1990 Stock Plan")
are performance based as shown in the "Long-Term Incentive Plans -
Awards in Last Fiscal Year" table (the "LTIP table"). Dividends are
paid or accrued on the aggregate restricted shares/units awarded under
the 1990 Stock Plan and reinvested.
The aggregate number and value (based on the stock price per share at
December 31, 1995) of nonvested restricted shares/units include the
amounts shown on the LTIP table and at the end of 1995 were:
Aggregate Aggregate
Shares/Units Value
JCP&L:
D. Baldassari 7,575 $257,550
M. P. Morrell 3,275 $111,350
E. J. McCarthy 2,915 $ 99,110
D. W. Myers 2,990 $101,660
R. S. Cohen 2,750 $ 93,500
Met-Ed/Penelec:
F. D. Hafer 8,875 $301,750
R. J. Toole 3,100 $105,400
G. R. Repko 3,000 $102,000
R. S. Zechman 2,815 $ 95,710
-18-</TABLE>
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
JCP&L
MET-ED/PENELEC
(3) Consists of Performance Cash Incentive Awards paid on the 1990
restricted stock awards which have vested under the 1990 Stock Plan.
These amounts are designed to compensate recipients of restricted
stock/unit awards for the amount of federal and state income taxes that
are payable upon vesting of the restricted stock/unit awards. Amounts
for Mr. Herbein include Performance Cash Incentive Awards of $10,665 on
the 1990 restricted stock award, $57,901 on the 1992, 1993 and 1994
restricted stock awards which vested upon retirement and $29,900 paid in
cash in lieu of receiving restricted units in 1995.
(4) As noted above, Mr. Leva is Chairman and Chief Executive Officer of
General Public Utilities Corporation and its Subsidiaries. Mr. Leva is
compensated by GPUSC for his overall service on behalf of the GPU System
and accordingly is not compensated directly by the other subsidiary
companies for his services. Information with respect to Mr. Leva's
compensation is included on pages 7 through 10 of this exhibit.
(5) Consists of employer matching contributions under the Savings Plan
($6,000), matching contributions under the non-qualified deferred
compensation plan ($7,480), the benefit of interest-free use of the non-
term portion of employer paid premiums for split-dollar life insurance
($5,851) and above-market interest accrued on the retirement portion of
deferred compensation ($94).
(6) Consists of employer matching contributions under the Savings Plan
($6,000), matching contributions under the non-qualified deferred
compensation plan ($1,160) and above-market interest accrued on the
retirement portion of deferred compensation ($2).
(7) Consists of employer matching contributions under the Savings Plan
($6,000), matching contributions under the non-qualified deferred
compensation plan ($8) and above-market interest accrued on the
retirement portion of deferred compensation ($66).
(8) Consists of employer matching contributions under the Savings Plan
($5,280).
(9) Consists of employer matching contributions under the Savings Plan
($5,136), matching contributions under the non-qualified deferred
compensation plan ($48) and above-market interest accrued on the
retirement portion of deferred compensation ($275).
(10) Consists of employer matching contributions under the Savings Plan
($6,000), matching contributions under the non-qualified deferred
compensation plan ($8,280), the benefit of interest-free use of the non-
term portion of employer paid premiums for split-dollar life insurance
($8,548) and above-market interest accrued on the retirement portion of
deferred compensation ($248).
-19-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
JCP&L
MET-ED/PENELEC
(11) Mr. Herbein retired as Vice President - Generation of Penelec effective
December 31, 1995.
(12) Consists of employer matching contributions under the Savings Plan
($4,600), matching contributions under the non-qualified deferred
compensation plan ($1,340) and above-market interest accrued on the
retirement portion of deferred compensation ($5,241).
(13) Consists of employer matching contributions under the Savings Plan
($5,740), matching contributions under the non-qualified deferred
compensation plan ($944) and above-market interest accrued on the
retirement portion of deferred compensation ($278).
(14) Consists of employer matching contributions under the Savings Plan
($6,000) and above-market interest accrued on the retirement portion of
deferred compensation ($66).
(15) Consists of employer matching contributions under the Savings Plan
($6,000).
Note: The split-dollar life insurance amounts reported in the "All Other
Compensation" column are equal to the present value of the interest-free use
of the current year employer paid premiums to the projected date the premiums
will be refunded to the respective GPU System companies.
<TABLE>
LONG-TERM INCENTIVE PLANS - AWARDS IN LAST FISCAL YEAR
<CAPTION>
Performance Estimated future payouts
Number of or other under non-stock price-
shares, period until based plans(1)
units or maturation Threshold Target Maximum
Name other rights or payout ( $ or #) ($ or #) ($ or #)
<S> <C> <C> <C> <C> <C>
JCP&L:
D. Baldassari 2,845 5 year vesting $ 0 $ 96,730 $193,460
M. P. Morrell 1,055 5 year vesting $ 0 $ 35,870 $ 71,740
E. J. McCarthy 995 5 year vesting $ 0 $ 33,830 $ 67,660
D. W. Myers 995 5 year vesting $ 0 $ 33,830 $ 67,660
R. S. Cohen 880 5 year vesting $ 0 $ 29,920 $ 59,840
Met-Ed/Penelec:
F. D. Hafer 2,900 5 year vesting $ 0 $ 98,600 $197,200
J. G. Herbein - (2) 5 year vesting $ 0 $ 0 $ 0
R. J. Toole 1,025 5 year vesting $ 0 $ 34,850 $ 69,700
G. R. Repko 1,000 5 year vesting $ 0 $ 34,000 $ 68,000
R. S. Zechman 950 5 year vesting $ 0 $ 32,300 $ 64,600
-20-</TABLE>
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
JCP&L
MET-ED/PENELEC
(1) The restricted units issued in 1995 under the 1990 Stock Plan provide
for a performance adjustment to the aggregate number of units vesting
for the recipient based on the annualized GPU Total Shareholder Return
(TSR) percentile ranking against all companies in the Standard & Poor's
Electric Utility Index for the period between the award and vesting
dates. With a 55th percentile ranking, the performance adjustment would
be 100% as reflected in the "Target" column. In the event that the
percentile ranking is below the 55th percentile, the performance
adjustment would be reduced in steps reaching 0% at the 39th percentile
as reflected in the "Threshold" column. Should the TSR percentile
ranking exceed the 59th percentile, then the performance adjustment
would be increased in steps reaching 200% at the 90th percentile as
reflected in the "Maximum" column. The estimated future payouts above
are computed based on the number of restricted units awarded for 1995
multiplied by the 1995 year-end market value of $34 per share. Actual
payouts under the Plan would be based on the actual number of shares
issued and the market value of those shares at the time the restrictions
lapse and may be different from those indicated above.
(2) The $29,900 in cash received by Mr. Herbein in lieu of receiving
restricted units in 1995 is included in the Summary Compensation Table
under LTIP Payouts.
Proposed Remuneration of Executive Officers
None of the named executive officers in the Summary Compensation Table
has an employment contract. The compensation of executive officers is
determined from time to time by the Personnel & Compensation Committee of the
GPU 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 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
benefits from funded and unfunded sources resulting from employer
contributions to the qualified trust and direct payments payable upon
retirement in 1996 (computed on a single life annuity basis) to persons in
specified salary and years of service classifications:
-21-
<PAGE>
<TABLE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
JCP&L
MET-ED/PENELEC
ESTIMATED ANNUAL RETIREMENT BENEFITS
BASED UPON CAREER AVERAGE COMPENSATION(2) (3) (4)
(1996 Retirement)
<CAPTION>
Career
Average 10 Years 15 Years 20 Years 25 Years 30 Years 35 Years 40 Years 45 Years
Compensation(1) of Service of Service of Service of Service of Service of Service of Service of Service
<S> <C> <C> <C> <C> <C> <C> <C> <C>
$ 50,000 $ 9,378 $ 14,067 $ 18,756 $ 23,445 $ 28,134 $ 32,823 $ 37,236 $ 41 236
100,000 19,378 29,067 38,756 48,445 58,134 67,823 76,836 84,836
150,000 29,378 44,067 58,756 73,445 88,134 102,823 116,436 128,436
200,000 39,378 59,067 78,756 98,445 118,134 137,823 156,036 172,036
250,000 49,378 74,067 98,756 123,445 148,134 172,823 195,636 215,636
300,000 59,378 89,067 118,756 148,445 178,134 207,823 235,236 259,236
350,000 69,378 104,067 138,756 173,445 208,134 242,823 274,836 302,836
400,000 79,378 119,067 158,756 198,445 238,134 277,823 314,436 346,436
450,000 89,378 134,067 178,756 223,445 268,134 312,823 354,036 390,036
500,000 99,378 149,067 198,756 248,445 298,134 347,823 393,636 433,636
(1) Career Average Compensation is the average annual compensation received
from January 1, 1984 to retirement and includes Salary and Bonus. 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: JCP&L: Messrs. Baldassari - $175,136; Morrell - $128,798;
McCarthy - $125,601; Myers - $145,654; Cohen - $111,397 and
Met-Ed/Penelec: Messrs. Hafer - $249,444; Herbein - $140,854; Toole -
$127,434; Repko - $127,376; Zechman - $110,388.
(2) Years of Creditable Service at December 31, 1995: JCP&L: Messrs.
Baldassari - 26 years; Morrell - 24 years; McCarthy - 35 years; Myers -
15 years; Cohen - 27 years and Met-Ed/Penelec: Messrs. Hafer - 33
years; Herbein - 35 years; Toole - 29 years; Repko - 29 years; Zechman -
26 years.
(3) Based on an assumed retirement at age 65 in 1996. 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 benefits under the basic pension per the above table
cannot exceed 55% of the average compensation during the highest paid
thirty-six calendar months.
-22-
</TABLE>
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
JCP&L
MET-ED/PENELEC
All of the outstanding shares of JCP&L (15,371,270), Met-Ed (859,500)
and Penelec (5,290,596) common stock are owned beneficially and of record by
the Company's parent, General Public Utilities Corporation, 100 Interpace
Parkway, Parsippany, NJ 07054.
The following table sets forth, as of February 1, 1996, the beneficial
ownership of equity securities of each of the directors and each of the
executive officers named in the Summary Compensation Tables, and of all
directors and executive officers of each of the respective GPU System
companies 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)
JCP&L:
J. R. Leva GPU Common Stock 4,376 Shares - Direct
GPU Common Stock 100 Shares - Indirect
J. G. Graham GPU Common Stock 4,321 Shares - Direct
GPU Common Stock 1,180 Shares - Indirect
R. C. Arnold GPU Common Stock 2,231 Shares - Direct
GPU Common Stock 3,943 Shares - Indirect
D. Baldassari GPU Common Stock 1,061 Shares - Direct
R. S. Cohen GPU Common Stock 882 Shares - Direct
E. J. McCarthy GPU Common Stock 869 Shares - Direct
M. P. Morrell GPU Common Stock 1,126 Shares - Direct
D. W. Myers GPU Common Stock 1,008 Shares - Direct
G. E. Persson GPU Common Stock None
S. C. Van Ness GPU Common Stock None
S. B. Wiley GPU Common Stock None
All Directors and GPU Common Stock 19,831 Shares - Direct
Officers as a Group GPU Common Stock 5,223 Shares - Indirect
Met-Ed/Penelec:
J. R. Leva GPU Common Stock 4,376 Shares - Direct
GPU Common Stock 100 Shares - Indirect
J. G. Graham GPU Common Stock 4,321 Shares - Direct
GPU Common Stock 1,180 Shares - Indirect
R. C. Arnold GPU Common Stock 2,231 Shares - Direct
GPU Common Stock 3,943 Shares - Indirect
J. F. Furst GPU Common Stock 670 Shares - Direct
F. D. Hafer GPU Common Stock 4,756 Shares - Direct
GPU Common Stock 124 Shares - Indirect
G. R. Repko GPU Common Stock 643 Shares - Direct
R. J. Toole GPU Common Stock 1,072 Shares - Direct
R. S. Zechman GPU Common Stock 947 Shares - Direct
All Directors and GPU Common Stock 22,317 Shares - Direct
Officers as a Group GPU Common Stock 5,347 Shares - Indirect
-23-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
JCP&L
MET-ED/PENELEC
(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.
-24-
<PAGE>
<TABLE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
Energy
Initiatives, Inc.
and Subsidiary Eliminations Elmwood Camchino
Companies and Energy Energy Energy
Consolidated Adjustments Initiatives, Inc. Corporation Corporation
<S> <C> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and temporary cash investments $ 2,592 $ 2,261
Special deposits 2,983 95
Accounts receivable 2,886 $ 29,606 10,278 $ 6,277 $ 3,140
Deferred income taxes 2,725 (2,233) 457 35
Prepayments 3,184 3,180
Total current assets 14,370 27,373 16,271 6,312 3,140
Deferred Debits and Other Assets:
Deferred income taxes 1,371 4,162 550 607
Investments 105,071 84,574 120,579 7,512
Other 26,711 (233) 20,790 300
Total deferred debits and other assets
133,153 88,503 141,919 8,119 300
Total Assets $147,523 $115,876 $158,190 $14,431 $ 3,440
-1-<PAGE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
Geddes EI Canada
NCP Energy Cogeneration EI Selkirk Holding
Inc. Corporation Inc. Limited, Inc.
<S> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and temporary cash investments $ 331
Special Deposits $ 2,888
Accounts receivable 5,349 $ 3,742 $ 3,233 473
Deferred income taxes
Prepayments
4
Total current assets 8,237 3,742 3,233 808
Deferred Debits and Other Assets:
Deferred income taxes 4,162 214
Investments 27,042 16,608 17,722 182
Other 5,388
Total deferred debits and other assets 36,592 16,822 17,722 182
Total Assets $44,829 $20,564 $20,955 $ 990
-2-
<PAGE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
Energy
Initiatives, Inc.
and Subsidiary Eliminations Elmwood Camchino
Companies and Energy Energy Energy
Consolidated Adjustments Initiatives, Inc. Corporation Corporation
<S> <C> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock $ 100 $ 10 $ 100 $ 10
Capital surplus 127,904 89,804 127,904 4,206 $ 6,800
Retained earnings (1,037) (5,142) (1,037) 3,529 (6,212)
Total capitalization 126,967 84,672 126,967 7,745 588
Current Liabilities:
Notes payable 1,800 1,500
Accounts payable 1,349 28,976 19,666 3,022 2,845
Other 6,162 995 3,355 85
Total current liabilities 9,311 29,971 24,521 3,107 2,845
Deferred Credits and Other Liabilities:
Deferred income taxes 7,232 1,928 5,455 2,092 7
Other 4,013 (695) 1,247 1,487
Total deferred credits and other liabilities 11,245 1,233 6,702 3,579 7
Total Liabilities and Capital $147,523 $115,876 $158,190 $14,431 $ 3,440
-3-
<PAGE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
Geddes EI Canada
NCP Energy Cogeneration EI Selkirk Holding
Inc. Corporation Inc. Limited, Inc.
<S> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock
Capital surplus $41,392 $16,299 $20,925 $ 182
Retained earnings (3,139) 841 (156) (5)
Total capitalization 38,253 17,140 20,769 177
Current Liabilities:
Notes payable 300
Accounts payable 3,206 1,549 18 19
Other 2,851 72 794
Total current liabilities 6,357 1,621 18 813
Deferred Credits and Other Liabilities:
Deferred income taxes 219 1,219 168
Other 584
Total deferred credits and other liabilities 219 1,803 168 -
Total Liabilities and Capital $44,829 $20,564 $20,955 $ 990
-4-
<PAGE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
Energy
Initiatives, Inc.
and Subsidiary Eliminations Elmwood Camchino
Companies and Energy Energy Energy
Consolidated Adjustments Initiatives, Inc. Corporation Corporation
<S> <C> <C> <C> <C> <C>
Operating Revenues $ 6,025 $ 1,371 $ 427 $ 532
Operating Expenses:
Other operation and maintenance (363) (3,671) 165 519
Depreciation and amortization 1,008 900
Total operating expenses 645 (2,771) 165 519
Operating Income Before Income Taxes 5,380 4,142 262 13
Income taxes 1,573 1,573
Operating Income 3,807 2,569 262 13
Other Income and Deductions:
Other income / (expense), net 9,138 $ (915) 11,099 2,686 33
Income taxes (3,198) (3,921) (1,151) (13)
Total other income and deductions 5,940 (915) 7,178 1,535 20
Income Before Interest Charges 9,747 (915) 9,747 1,797 33
Interest Charges:
Other interest 497 497
Net Income $ 9,250 $ (915) $ 9,250 $ 1,797 $ 33
-5-
<PAGE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
Geddes EI Canada
NCP Cogeneration EI Selkirk Holding
Energy Inc. Corporation Inc. Limited, Inc.
<S> <C> <C> <C> <C>
Operating Revenues $ 2,272 $ 329 $1,094
Operating Expenses:
Other operation and maintenance 938 352 $ 240 1,094
Depreciation and amortization 108
Total operating expenses 1,046 352 240 1,094
Operating Income Before Income Taxes 1,226 (23) (240) -
Income taxes
Operating Income 1,226 (23) (240) -
Other Income and Deductions:
Other income / (expense), net (4,867) (689) (39)
Income taxes 1,516 273 98
Total other income and deductions (3,351) (416) 59
Income Before Interest Charges (2,125) (439) (181) -
Interest Charges:
Other interest
Net Income $(2,125) $ (439) $ (181) $ -
-6-
<PAGE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
Energy
Initiatives, Inc.
and Subsidiary Eliminations Elmwood Camchino
Companies and Energy Energy Energy
Consolidated Adjustments Initiatives, Inc. Corporation Corporation
<S> <C> <C> <C> <C> <C>
Balance at beginning of year $ (8,301) $(4,222) $ (8,301) $1,732 $(6,245)
Net income (loss) 9,250 (915) 9,250 1,797 33
Cash dividends declared on common stock -
Net unrealized gain on investments (1,981) (1,981)
Other adjustments, net (5) (5) (5)
Balance at end of year $ (1,037) $(5,142) $ (1,037) $3,529 $(6,212)
-7-
<PAGE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
Geddes EI Canada
NCP Cogeneration EI Selkirk Holding
Energy Inc. Corporation Inc. Limited, Inc.
<S> <C> <C> <C> <C>
Balance at beginning of year $(1,014) $1,280 $ 25 $ -
Net income (loss) (2,125) (439) (181)
Cash dividends declared on common stock
Net unrealized gain on investments
Other adjustments, net (5)
Balance at end of year $(3,139) $ 841 $ (156) $ (5)
-8-
<PAGE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
Energy
Initiatives, Inc.
and Subsidiary Eliminations Elmwood Camchino
Companies and Energy Energy Energy
Consolidated Adjustments Initiatives, Inc. Corporation Corporation
<S> <C> <C> <C> <C> <C>
Operating Activities:
Net income $ 9,250 $ (918) $ 9,250 $ 1,796 $ 32
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries - 918 918
Depreciation and amortization 1,008 766
Deferred income taxes and investment tax credits, net 2,596 2,331 1,046 7
Changes in working capital:
Receivables (500) 381 6 (159) (35)
Special deposits and prepayments (3,084) 11 (185)
Payables and accrued liabilities 3,668 1,059 856 11 (17)
Due to/from affiliates (570) - 5,533 77 13
Other, net (5,766) (1,448) (9,844) (2,771)
Net cash provided (required) by operating activities 6,602 3 9,631 - -
Investing Activities:
Purchase of investments (4,712) (1,738) (4,604)
Other, net (2,769) (6,561)
Net cash provided (used) for investing activities (7,481) (1,738) (11,165) - -
Financing Activities:
Increase (decrease) in notes payable 1,175 1,500
Dividends paid on common stock - Internal
Cash contributions from parent 1,524 1,735 1,524
Net cash provided by financing activities 2,699 1,735 3,024 - -
Net increase (decrease) in cash and temporary cash
investments from above activities 1,820 - 1,490 - -
Cash and temporary cash investments, beginning of year 772 - 770 - -
Cash and temporary cash investments, end of year $ 2,592 $ - $ 2,260 $ - $ -
Supplemental Disclosure:
Income taxes paid (refunded) $ 653 $ 2,677 $ 246 $ 15
-9-
<PAGE>
Energy Initiatives, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
Geddes EI Canada
NCP Energy Cogeneration EI Selkirk Holding
Inc. Corporation Inc. Limited, Inc.
<S> <C> <C> <C> <C>
Operating Activities:
Net income $ (2,126) $ (438) $ (182) $ -
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries
Depreciation and amortization 242
Deferred income taxes and investment tax credits, net (1,022) 66 168
Changes in working capital:
Receivables 612 (46) (24) (473)
Special deposits and prepayments (2,888)
Payables and accrued liabilities 3,513 238 27 99
Due to/from affiliates (2,570) (449) (3,192) 18
Other, net 4,012 663 39 687
Net cash provided (required) by operating activities (227) 34 (3,164) 331
Investing Activities:
Purchase of investments (1,613) (35) (16) (182)
Other, net 628 3,164
Net cash provided (used) for investing activities (985) (35) 3,148 (182)
Financing Activities:
Increase (decrease) in notes payable (325)
Dividends paid on common stock - Internal
Cash contributions from parent 1,537 16 182
Net cash provided by financing activities 1,212 - 16 182
Net increase (decrease) in cash and temporary cash
investments from above activities - (1) - 331
Cash and temporary cash investments, beginning of year 1 1 - -
Cash and temporary cash investments, end of year $ 1 $ - $ - $ 331
Supplemental Disclosure:
Income taxes paid (refunded) (1,462) $ (535) $ (288)
-10-
<PAGE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
NCP Energy, Inc.
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:
Special deposits $ 2,888 $ 2,888
Accounts receivable 5,349 2,014 $ 596 $ 404
Total current assets 8,237 4,902 596 404
Deferred Debits and Other Assets:
Deferred income taxes 4,162 2,511 1
Investments 32,430 $ 44,277 35,162 20 514
Total deferred debits and other assets 36,592 44,277 37,673 21 514
Total Assets $44,829 $ 44,277 $42,575 $ 617 $ 918
-11-
<PAGE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(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:
Special deposits
Accounts receivable $ 1,706 $ 629
Total current assets 1,706 629
Deferred Debits and Other Assets:
Deferred income taxes 56 $ 1,594
Investments 16,467 147 3,948 $16,635 $3,814
Total deferred debits and other assets 16,467 203 5,542 16,635 3,814
Total Assets $18,173 $ 832 $ 5,542 $16,635 $3,814
-12-
<PAGE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
NCP Energy, Inc.
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 $41,392 $ 54,688 $41,392 $ 121 $ 668
Retained earnings (3,139) (10,411) (3,139) 141 (71)
Total capitalization 38,253 44,277 38,253 262 597
Current Liabilities:
Notes Payable 300 300
Accounts payable 3,206 1,171 355 287
Other 2,851 2,851
Total current liabilities 6,357 4,322 355 287
Deferred Credits and Other Liabilities:
Deferred income taxes 219 34
Total Liabilities and Capital $44,829 $ 44,277 $42,575 $ 617 $ 918
-13-
<PAGE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(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 $19,819 $ 309 $ 6,841 $20,019 $ 6,911
Retained earnings (2,179) (32) (1,785) (3,386) (3,099)
Total capitalization 17,640 277 5,056 16,633 3,812
Current Liabilities:
Notes payable
Accounts payable 348 555 486 2 2
Other
Total current liabilities 348 555 486 2 2
Deferred Credits and Other Liabilities:
Deferred income taxes
185
Total Liabilities and Capital $18,173 $ 832 $ 5,542 $16,635 $3,814
-14-
<PAGE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statements of Income and Accumulated Earnings
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
NCP Energy, Inc.
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 $ 2,272 $ 1,398 $ 329 $ 182
Operating Expenses:
Other operation and maintenance 938 257 155 200
Depreciation and amortization 108 108
Total operating expenses 1,046 365 155 200
Operating Income Before Income Taxes 1,226 1,033 174 (18)
Income taxes
Operating Income 1,226 1,033 174 (18)
Other Income and Deductions:
Other income / (expense), net (4,867) $ (7,320) (3,149) (68)
Income taxes 1,516 (9) (63) 29
Total other income and deductions (3,351) (7,320) (3,158) (63) (39)
Net Income (Loss) (2,125) (7,320) (2,125) 111 (57)
Accumulated earnings at beginning of year (1,014) (3,091) (1,014) 30 (14)
Accumulated earnings (losses) at end of year $(3,139) $(10,411) $(3,139) $ 141 $ (71)
-15-
<PAGE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statements of Income and Accumulated Earnings
For the Year Ended December 31, 1995
(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 $ 363
Operating Expenses:
Other operation and maintenance 322 $ 2 $ 2
Depreciation and amortization
Total operating expenses 322 2 2
Operating Income Before Income Taxes 41 (2) (2)
Income taxes
Operating Income 41 (2) (2)
Other Income and Deductions:
Other income / (expense), net $(2,359) (63) $(1,986) (2,381) (2,181)
Income taxes 826 7 726
Total other income and deductions (1,533) (56) (1,260) (2,381) (2,181)
Net Income (Loss) (1,533) (15) (1,260) (2,383) (2,183)
Accumulated earnings at beginning of year (646) (17) (525) (1,003) (916)
Accumulated earnings (losses) at end of year $(2,179) $ (32) $(1,785) $(3,386) $(3,099)
-16-
<PAGE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
NCP Energy, Inc.
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) $ (2,126) $ (7,322) $ (2,126) $ 111 $ (56)
Adjustments to reconcile income to cash provided:
Depreciation and amortization 242 242
Deferred income taxes and investment tax credits, net (1,022) 39 (6) 32
Changes in working capital:
Receivables 612 (2) 361 7 (4)
Special deposits and prepayments (2,888) (2,888)
Payables and accrued liabilities 3,513 3,277 2 21
Due to/from affiliates (2,570) 1 (1,422) (118) (62)
Other, net 4,012 7,268 2,235 4 69
Net cash required by operating activities (227) (55) (282) - -
Investing Activities:
Purchase of investments (1,613) (3,104) (1,559) (27) (37)
Other, net 628 628
Net cash used for investing activities (985) (3,104) (931) (27) (37)
Financing Activities:
Decrease in notes payable (325) (325)
Cash contributions from parent 1,537 3,159 1,538 27 37
Net cash provided by financing activities 1,212 3,159 1,213 27 37
Net increase in cash and temporary cash
investments from above activities - - - - -
Cash and temporary cash investments, beginning of year 1 - 1 - -
Cash and temporary cash investments, end of year $ 1 $ - $ 1 $ - $ -
Supplemental Disclosure:
Income taxes paid (refunded) $ (1,462) $ (389) $ 57 $ (70)
-17-
<PAGE>
NCP Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1995
(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) $ (1,534) $ (15) $(1,261) $ (2,384) $(2,183)
Adjustments to reconcile income to cash provided:
Depreciation and amortization
Deferred income taxes and investment tax credits, net 122 (41) (1,168)
Changes in working capital:
Receivables 161 (77) 162
Special deposits and prepayments
Payables and accrued liabilities 254 9 (50)
Due to/from affiliates (1,363) 61 331 2 2
Other, net 2,360 63 1,986 2,382 2,181
Net cash required by operating activities - - - - -
Investing Activities:
Purchase of investments (1,477) (1) (62) (1,492) (62)
Other, net
Net cash used for investing activities (1,477) (1) (62) (1,492) (62)
Financing Activities:
Decrease in notes payable
Cash contributions from parent 1,477 1 62 1,492 62
Net cash provided by financing activities 1,477 1 62 1,492 62
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) $ (1,363) $ 11 $ 292
-18-
<PAGE>
EI Power, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
EI Power, Inc.
and Subsidiary Eliminations Guaracachi EI
Companies and EI Power, America, Barranquilla,
Consolidated Adjustments Inc. Inc. Inc.
<S> <C> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and temporary cash investments $ 175 $ 42 $ 29
Accounts receivable 1,623 25 1,562
Materials and supplies, at average cost or less:
Construction and maintenance 6,246 6,246
Prepayments
699 607 $ 92
Total current assets 8,743 67 8,444 92
Deferred Debits and Other Assets:
Investments 70,800 $ 34,045 34,045 70,794 (157)
Other 52,134 1,130 900 52,134
Total deferred debits and other assets 122,934 35,175 34,945 122,928 (157)
Total Assets $131,677 $ 35,175 $ 35,012 $131,372 $ (65)
-19-
<PAGE>
EI Power, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
Barranquilla
Lease Holding, EI
Inc. International
<S> <C> <C>
ASSETS
Current Assets:
Cash and temporary cash investments $ 104
Accounts receivable 36
Materials and supplies, at average cost or less:
Construction and maintenance
Prepayments
Total current assets 140
Deferred Debits and Other Assets:
Investments $ 12 151
Other 230
Total deferred debits and other assets
12 381
Total Assets $ 12 $ 521
-20-
<PAGE>
EI Power, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
EI Power, Inc.
and Subsidiary Eliminations Guaracachi EI
Companies and EI Power, America, Barranquilla,
Consolidated Adjustments Inc. Inc. Inc.
<S> <C> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock $ 1 $ 1
Capital surplus 32,999 $ 32,930 32,999 $ 32,908
Retained earnings 1,113 1,115 1,113 1,298 $ (107)
Common stockholder's equity 34 113 34,045 34,113 34,206 (107)
Long-term debt 48,386 48,386
Total capitalization 82,499 34,045 34,113 82,592 (107)
Current Liabilities:
Securities due within one year 2,308 2,308
Accounts payable 1,249 842 501 (55)
Interest accrued 955 955
Other 548 57 461
Total current liabilities 5,060 899 4,225 (55)
Deferred Credits and Other Liabilities:
Other 44,118 1,130 44,555 97
Total Liabilities and Capital $131,677 $ 35,175 $ 35,012 $131,372 $ (65)
-21-
<PAGE>
EI Power, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
Barranquilla
Lease Holding, EI
Inc. International
<S> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock
Capital surplus $ 12 $ 10
Retained earnings (76)
Common stockholder's equity 12 (66)
Long-term debt
Total capitalization 12 (66)
Current Liabilities:
Securities due within one year
Accounts payable (39)
Interest accrued
Other 30
Total current liabilities (9)
Deferred Credits and Other Liabilities:
Other 596
Total Liabilities and Capital $ 12 $ 521
-22-
<PAGE>
EI Power, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
EI Power, Inc.
and Subsidiary Eliminations Guaracachi EI
Companies and EI Power, America, Barranquilla,
Consolidated Adjustments Inc. Inc. Inc.
<S> <C> <C> <C> <C> <C>
Operating Revenues $11,339 $11,111
Operating Expenses:
Fuel 5,993 5,993
Other operation and maintenance 1,560 $ 3 1,206 $ 4
Depreciation and amortization 2,006 2,006
Taxes, other than income taxes 12 12
Total operating expenses 9,571 3 9,217 4
Operating Income Before Income Taxes 1,768 (3) 1,894 (4)
Income taxes 383 (1) 484 (55)
Operating Income 1,385 (2) 1,410 51
Other Income and Deductions:
Other income / (expense), net 844 $ 151 151 1,002 (158)
Income taxes -
Total other income and deductions 844 151 151 1,002 (158)
Income Before Interest Charges 2,229 151 149 2,412 (107)
Interest Charges:
Interest on long-term debt 1,158 1,158
Minority interest (922) (922)
Net Income (Loss) $ 149 $ 151 $ 149 $ 332 $ (107)
-23-
<PAGE>
EI Power, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
Barranquilla
Lease Holding, EI
Inc. International
<S> <C> <C>
Operating Revenues $ - $ 228
Operating Expenses:
Fuel
Other operation and maintenance 347
Depreciation and amortization
Taxes, other than income taxes
Total operating expenses 347
Operating Income Before Income Taxes (119)
Income taxes (45)
Operating Income (74)
Other Income and Deductions:
Other income / (expense), net
Income taxes
Total other income and deductions
Income Before Interest Charges (74)
Interest Charges:
Other interest
Minority interest
Net Income (Loss) $ - $ (74)
-24-
<PAGE>
EI Power, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
EI Power, Inc.
and Subsidiary Eliminations Guaracachi EI
Companies and EI Power, America, Barranquilla,
Consolidated Adjustments Inc. Inc. Inc.
<S> <C> <C> <C> <C> <C>
Balance at beginning of year $ - $ - $ - $ - $ -
Net income (loss) 149 151 149 332 (107)
Other adjustments, net 964 964 964 966
Balance at end of year $ 1,113 $ 1,115 $ 1,113 $ 1,298 $ (107)
-25-
<PAGE>
EI Power, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
Barranquilla
Lease Holding, EI
Inc. International
<S> <C> <C>
Balance at beginning of year $ - $ -
Net income (74)
Other adjustments, net (2)
Balance at end of year $ - $ (76)
-26-
<PAGE>
EI Power, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
EI Power, Inc.
and Subsidiary Eliminations Guaracachi EI
Companies and EI Power, America, Barranquilla,
Consolidated Adjustments Inc. Inc. Inc.
<S> <C> <C> <C> <C> <C>
Operating Activities:
Net income (loss) $ 149 $ 150 $ 149 $ 332 $ (106)
Adjustments to reconcile income to cash provided:
Depreciation and amortization 2,088 2,085
Changes in working capital:
Receivables 2,546 (24) 2,606
Special deposits and prepayments (1,066) (974) (92)
Payables and accrued liabilities 171 287 (114) (55)
Due to/from affiliates 612 (288) 500 96
Other, net 2,453 157 (151) 2,604 157
Net cash provided (required) by operating activities 6,953 307 (27) 7,039 -
Investing Activities:
Purchase of investments (47,946) (33,237) (32,931) (48,240)
Other, net (4,970) (4,816)
Net cash used for investing activities (52,916) (33,237) (32,931) (53,056) -
Financing Activities:
Increase in notes payable 13,138 13,138
Cash contributions from parent 33,000 32,930 33,000 32,908
Net cash provided by financing activities 46,138 32,930 33,000 46,046 -
Net increase in cash and temporary cash
investments from above activities 175 - 42 29 -
Cash and temporary cash investments, beginning of year - - - - -
Cash and temporary cash investments, end of year $ 175 $ - $ 42 $ 29 $ -
Supplemental Disclosure:
Income taxes paid $ -
-27-
<PAGE>
EI Power, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
Barranquilla
Lease Holding, EI
Inc. International
<S> <C> <C>
Operating Activities:
Net income (loss) $ - $ (76)
Adjustments to reconcile income to cash provided:
Depreciation and amortization 3
Changes in working capital:
Receivables (36)
Special deposits and prepayments
Payables and accrued liabilities 53
Due to/from affiliates 304
Other, net
Net cash provided (required) by operating activities - 248
Investing Activities:
Purchase of investments (12)
Other, net (154)
Net cash used for investing activities (12) (154)
Financing Activities:
Increase in notes payable
Cash contributions from parent 12 10
Net cash provided by financing activities 12 10
Net increase in cash and temporary cash
investments from above activities - 104
Cash and temporary cash investments, beginning of year - -
Cash and temporary cash investments, end of year $ - $ 104
Supplemental Disclosure:
Income taxes paid
-28-
<PAGE>
EI Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
EI Energy, Inc.
and Subsidiary Eliminations Victoria EI Australia
Companies and EI Energy, Electric, Services Pty.,
Consolidated Adjustments Inc. Inc. Ltd.
<S> <C> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and temporary cash investments $ 2,924 $ 2,465 $ 459
Accounts receivable:
Customers, net 448 9 $ 439
Other 143 206 4 (67)
Prepayments 733 733
Total current assets 4,248 3,413 463 372
Deferred Debits and Other Assets:
Investments 112,173 $112,022 112,022 112,173
Other 247 986 1,233
Total deferred debits and other assets 112,420 113,008 113,255 112,173
Total Assets $116,668 $113,008 $116,668 $112,636 $ 372
-29-
<PAGE>
EI Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
EI Energy, Inc.
and Subsidiary Eliminations Victoria EI Australia
Companies and EI Energy, Electric, Services Pty.,
Consolidated Adjustments Inc. Inc. Ltd.
<S> <C> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock $ 1 $ 1
Capital surplus 47,999 $111,905 47,999 $111,905
Retained earnings (191) 117 (191) (7) $ 124
Total common stockholder's equity 47,809 112,022 47,809 111,898 124
Long-term debt 68,312 68,312
Total capitalization 116,121 112,022 116,121 111,898 124
Current Liabilities:
Accounts payable 404 404
Interest accrued 11 11
Other 132 132
Total current liabilities 547 547
Deferred Credits and Other Liabilities:
Other - 986 738 248
Total Liabilities and Capital $116,668 $113,008 $116,668 $112,636 $ 372
-30-
<PAGE>
EI Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
EI Energy, Inc.
and Subsidiary Eliminations Victoria EI Australia
Companies and EI Energy, Electric, Services Pty.,
Consolidated Adjustments Inc. Inc. Ltd.
<S> <C> <C> <C> <C> <C>
Operating Revenues $ 439 $ 439
Operating Expenses:
Other operation and maintenance 248 248
Depreciation and amortizations -
Total operating expenses 248 248
Operating Income Before Income Taxes 191 191
Income taxes (103) $ (167) $ (3) 67
Operating Income 294 167 3 124
Other Income and Deductions:
Other income / (expense), net (7) $ 118 120 (9)
Income taxes -
Total other income and deductions (7) 118 120 (9)
Income Before Interest Charges 287 118 287 (6) 124
Interest Charges:
Interest on long-term debt 478 478
Net Income (Loss) $ (191) $ 118 $ (191) $ (6) $ 124
-31-
<PAGE>
EI Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
EI Energy, Inc.
and Subsidiary Eliminations Victoria EI Australia
Companies and EI Energy, Electric, Services Pty.,
Consolidated Adjustments Inc. Inc. Ltd.
<S> <C> <C> <C> <C> <C>
Balance at beginning of year $ - $ - $ - $ - $ -
Net income (loss) (191) 118 (191) (6) 124
Other adjustments, net
Balance at end of year $ (191) $ 118 $ (191) $ (6) $ 124
-32-
<PAGE>
EI Energy, Inc. and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
EI Energy, Inc.
and Subsidiary Eliminations Victoria EI Australia
Companies and EI Energy, Electric, Services Pty.,
Consolidated Adjustments Inc. Inc. Ltd.
<S> <C> <C> <C> <C> <C>
Operating Activities:
Net income (loss) $ (191) $ 117 $ (191) $ (7) $ 124
Adjustments to reconcile income to cash provided:
Depreciation and amortization 15 15
Changes in working capital:
Receivables (591) (215) (4) (372)
Special deposits and prepayments (733) (733)
Payables and accrued liabilities 414 414
Due to/from affiliates 134 134
Other, net (74) (1,060) 738 248
Net cash provided (required) by operating activities (1,026) 117 (1,636) 727 -
Investing Activities:
Purchase of investments (112,173) (112,022) (112,022) (112,173)
Other, net
Net cash used for investing activities (112,173) (112,022) (112,022) (112,173) -
Financing Activities:
Increase in notes payable 68,123 68,123
Cash contributions from parent 48 000 111,905 48,000 111,905
Net cash provided by financing activities 116,123 111,905 116,123 111,905 -
Net increase in cash and temporary cash
investments from above activities 2,924 - 2,465 459
Cash and temporary cash investments, beginning of year - - - -
Cash and temporary cash investments, end of year $ 2,924 $ - $ 2,465 $ 459 $ -
Supplemental Disclosure:
Income taxes paid $ -
-33-
<PAGE>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc.
<S> <C> <C> <C> <C>
ASSETS
Utility Plant:
In service, at original cost $4,311,458 $4,311,458
Less, accumulated depreciation 1,669,893 1,669,893
Net utility plant in service 2,641,565 2,641,565
Construction work in progress 157,885 157,885
Other, net 111,023 111,023
Net utility plant 2,910,473 2,910,473
Other Property and Investments:
Common stock of subsidiary - $ 17,143 (A) 17,143
Nuclear decommissioning trusts 225,200 225,200
Nuclear fuel disposal fund 95,393 95,393
Other, net 7,218 7,218
Total other property and investments 327,811 17,143 344,954
Current Assets:
Cash and temporary cash investments 922 921 $ 1
Special deposits 7,358 7,358
Accounts receivable:
Customers, net 150,002 150,002
Other 21,912 13,543 (B) 21,912 13,543
Unbilled revenues 66,389 66,389
Materials and supplies, at average cost or less:
Construction and maintenance 95,949 95,949
Fuel 18,693 18,693
Deferred energy costs 5,290 5,290
Deferred income taxes 12,142 12,142
Prepayments 20,869 20,869
Total current assets 399,526 13,543 399,525 13,544
Deferred Debits and Other Assets:
Regulatory assets:
Three Mile Island Unit 2 deferred costs 138,472 138,472
Unamortized property losses 100,176 100,176
Income taxes recoverable through future rates 134,787 134,787
Other 311,293 311,293
Total regulatory assets 684,728 684,728
Deferred income taxes 122,082 122,082
Other 20,359 128,866 (C) 20,359 128,866
Total deferred debits and other assets 827,169 128,866 827,169 128,866
Total Assets $4,464,979 $159,552 $4,482,121 $142,410
The notes to the consolidated financial statements of JCP&L, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1995, are an integral part of the consolidating financial statements.
-34-
<PAGE>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(In Thousands)
<CAPTION>
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc.
<S> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock $ 153,713 $ 1 (A) $ 153,713 $ 1
Capital surplus 510,769 16,753 (A) 510,769 16,753
Retained earnings 816,770 389 (A) 816,770 389
Total common stockholder's equity 1,481,252 17,143 1,481,252 17,143
Cumulative preferred stock:
With mandatory redemption 134,000 134,000
Without mandatory redemption 37,741 37,741
Company-obligated mandatorily redeemable
preferred securities 125,000 125,000
Long-term debt 1,192,945 128,866 (C) 1,321,811
Total capitalization 2,970,938 146,009 2,974,804 142,143
Current Liabilities:
Securities due within one year 35,710 35,710
Notes payable 800 800
Obligations under capital leases 90,329 90,329
Accounts payable 143,110 13,543 (B) 156,653
Taxes accrued 10,516 10,249 267
Interest accrued 28,718 28,718
Other 75,069 75,069
Total current liabilities 384,252 13,543 397,528 267
Deferred Credits and Other Liabilities:
Deferred income taxes 607,188 607,188
Unamortized investment tax credits 66,874 66,874
Three Mile Island Unit 2 future costs 103,271 103,271
Regulatory liabilities 37,597 37,597
Other 294,859 294,859
Total deferred credits and other liabilities 1,109,789 - 1,109,789 -
Total Liabilities and Capital $4,464,979 $159,552 $4,482,121 $142,410
The notes to the consolidated financial statements of JCP&L, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1995, are an integral part of the consolidating financial statements.
-35-
<PAGE>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc.
<S> <C> <C> <C> <C>
Operating Revenues $2,035,928 $2,035,928
Equity in Earnings of Subsidiary
- $ 594 (A) 594
Operating Expenses:
Fuel 101,110 101,110
Power purchased and interchanged:
Affiliates 17,950 17,950
Other 642,858 642,858
Deferral of energy and capacity costs, net (5,949) (5,949)
Other operation and maintenance 475,448 475,448
Depreciation and amortization 194,976 194,976
Taxes, other than income taxes 226,994 226,994
Total operating expenses 1,653,387 - 1,653,387
Operating Income Before Income Taxes 382,541 594 383,135
Income taxes 91,321 (320)(B) 91,001
Operating Income 291,220 914 292,134
Other Income and Deductions:
Allowance for other funds used
during construction 1,803 1,803
Other income, net 14,889 7,554 (C) 14,901 $ 7,542
Income taxes (5,905) (320)(B) (5,905) (320)
Total other income and deductions 10,787 7,234 10,799 7,222
Income Before Interest Charges and
Dividends on Preferred Securities 302,007 8,148 302,933 7,222
Interest Charges and Dividends
on Preferred Securities:
Interest on long-term debt 92,602 92,602
Other interest 9,709 7,554 (C) 17,263
Allowance for borrowed funds used
during construction (6,021) (6,021)
Dividends on company-obligated mandatorily
redeemable preferred securities 6,628 6,628
Total interest charges and dividends
on preferred securities 102,918 7,554 103,844 6,628
Net Income $ 199,089 $ 594 (A) $ 199,089 $ 594
The notes to the consolidated financial statements of JCP&L, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1995, are an integral part of the consolidating financial statements.
-36-
<PAGE>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc.
<S> <C> <C> <C> <C>
Balance at beginning of year $ 772,240 $ - $ 772,240 $ -
Net income 199,089 594 199,089 594
Cash dividends declared on common stock (140,000) (205) (140,000) (205)
Cash dividends on cumulative preferred stock (14,457) (14,457)
Other adjustments, net (102) (102)
Balance at end of year $ 816,770 $ 389 $ 816,770 $ 389
The notes to the consolidated financial statements of JCP&L, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1995, are an integral part of the consolidating financial statements.
-37-
<PAGE>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc.
<S> <C> <C> <C> <C>
Operating Activities:
Net income $ 199,089 $ 594 $ 199,089 $ 594
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiary - (594) (594)
Depreciation and amortization 212,609 212,609
Amortization of property under capital leases 31,963 31,963
Nuclear outage maintenance costs, net 16,239 16,239
Deferred income taxes and investment tax credits, net (3,264) (3,264)
Deferred energy and capacity costs, net (6,511) (6,511)
Accretion income (12,520) (12,520)
Allowance for other funds used during construction (1,803) (1,803)
Changes in working capital:
Receivables (34,860) (34,860)
Materials and supplies (2,642) (2,642)
Special deposits and prepayments 22,261 22,261
Payables and accrued liabilities (45,098) (45,365) 267
Due to/from affiliates (2,994) (2,337) (657)
Other, net (29,816) (33,755) 3,939
Net cash provided by operating activities 342,653 - 338,510 4,143
Investing Activities:
Cash construction expenditures (217,805) (217,805)
Contributions to decommissioning trusts (18,793) (18,793)
Other, net (7,114) (7,114)
Net cash used for investing activities (243,712) - (243,712) -
Financing Activities:
Issuance of long-term debt 49,625 49,625
Decrease in notes payable, net (109,700) (109,700)
Retirement of long-term debt (47,439) (47,439)
Capital lease principal payments (26,991) (26,991)
Issuance of company-obligated mandatorily
redeemable preferred securities 121,063 121,063
Advances to/from affiliates - 128,866 (128,866)
Redemption of preferred stock (6,049) (6,049)
Dividends paid on preferred stock (14,569) (14,569)
Dividends paid on common stock (140,000) (140,000)
Dividends paid on common stock - Internal - 205 (205)
Capital stock paid-in capital 75,000 71,134 3,866
Net cash required by financing activities (99,060) - (94,918) (4,142)
Net increase (decrease) in cash and temporary cash
investments from above activities (119) (120) 1
Cash and temporary cash investments, beginning of year 1,041 - 1,041 -
Cash and temporary cash investments, end of year $ 922 $ - $ 921 $ 1
Supplemental Disclosure:
Interest paid $ 106,673 $ 7,554 $ 107,599 $ 6,628
Income taxes paid $ 93,662 $ 93,610 $ 52
New capital lease obligations incurred $ 18,264 $ 18,264
The notes to the consolidated financial statements of JCP&L, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1995, are an integral part of the consolidating financial statements.
-38-
<PAGE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(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 $2,240,951 $2,225,039 $15,912
Less, accumulated depreciation 763,921 758,818 5,103
Net utility plant in service 1,477,030 1,466,221 10,809
Construction work in progress 83,353 82,006 1,347
Other, net 45,587 45,587
Net utility plant 1,605,970 1,593,814 12,156
Other Property and Investments:
Common stock of subsidiaries - $ 26,008 (A) 26,008
Nuclear decommissioning trusts 95,317 95,317
Other, net 9,899 9,899
Total other property and investments 105,216 26,008 131,224
Current Assets:
Cash and temporary cash investments 1,810 1,223 $ 75 512
Special deposits 1,256 1,256
Accounts receivable:
Customers, net 60,739 60,739
Other 22,151 11,825 (B) 22,048 11,351 577
Unbilled revenues 31,509 31,509
Materials and supplies, at average cost or less:
Construction and maintenance 39,337 39,337
Fuel 9,817 9,817
Deferred income taxes 7,868 7,868
Prepayments 6,549 6,549
Total current assets 181,036 11,825 180,346 11,426 1,089
Deferred Debits and Other Assets:
Regulatory assets:
Three Mile Island Unit 2 deferred costs 149,004 149,004
Income taxes recoverable through future rates 178,513 178,468 45
Other 112,458 112,458
Total regulatory assets 439,975 439,930 45
Deferred income taxes 91,356 91,412 (56)
Other 13,612 103,093 (C) 13,612 103,093
Total deferred debits and other assets 544,943 103,093 544,954 103,093 (11)
Total Assets $2,437,165 $140,926 $2,450,338 $114,519 $13,234
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, 1995, are an integral part of the consolidating financial statements.
-39-
<PAGE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(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 370,200 16,262 (A) 370,200 13,402 2,860
Retained earnings 248,434 8,582 (A) 248,434 614 7,968
Total common stockholder's equity 684,907 26,008 684,907 14,017 11,991
Cumulative preferred stock 23,598 23,598
Company-obligated mandatorily redeemable
preferred securities 100,000 100,000
Long-term debt 603,268 103,093 (C) 706,361
Total capitalization 1,411,773 129,101 1,414,866 114,017 11,991
Current Liabilities:
Securities due within one year 15,019 15,019
Notes payable 22,390 22,390
Obligations under capital leases 43,600 43,600
Accounts payable 102,097 11,825 (B) 113,922
Taxes accrued 19,615 19,016 502 97
Deferred energy credits 1,417 1,417
Interest accrued 19,359 19,359
Other 40,635 40,635
Total current liabilities 264,132 11,825 275,358 502 97
Deferred Credits and Other Liabilities:
Deferred income taxes 380,135 379,078 1,057
Unamortized investment tax credits 33,387 33,336 51
Three Mile Island Unit 2 future costs 206,489 206,489
Regulatory liabilities 26,461 26,423 38
Other 114,788 114,788
Total deferred credits and other liabilities 761,260 - 760,114 - 1,146
Total Liabilities and Capital $2,437,165 $140,926 $2,450,338 $114,519 $13,234
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, 1995, are an integral part of the consolidating financial statements.
-40-
<PAGE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1995
(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 $854,674 $5,276 (A) $854,588 $5,362
Equity in Earnings of Subsidiaries - 1,683 (B) 1,683
Operating Expenses:
Fuel 87,477 87,477
Power purchased and interchanged:
Affiliates 31,411 5,276 (A) 36,687
Other 184,319 184,319
Deferral of energy costs, net (1,041) (1,041)
Other operation and maintenance 229,559 226,806 2,753
Depreciation and amortization 99,588 99,006 582
Taxes, other than income taxes 54,870 54,579 291
Total operating expenses 686,183 5,276 687,833 3,626
Operating Income Before Income Taxes 168,491 1,683 168,438 1,736
Income taxes 36,686 (399)(C) 35,429 858
Operating Income 131,805 2,082 133,009 878
Other Income and Deductions:
Allowance for other funds used
during construction 1,304 1,257 47
Other income, net 129,660 10,224 (D) 129,727 $10,141 16
Income taxes (55,364) (399)(C) (55,364) (399)
Total other income and deductions 75,600 9,825 75,620 9,742 63
Income Before Interest Charges and
Dividends on Preferred Securities 207,405 11,907 208,629 9,742 941
Interest Charges and Dividends
on Preferred Securities:
Interest on long-term debt 45,844 45,844
Other interest 5,147 10,224 (D) 15,371
Allowance for borrowed funds used
during construction (1,126) (1,126)
Dividends on company-obligated mandatorily
redeemable preferred securities 9,000 9,000
Total interest charges and dividends
on preferred securities 58,865 10,224 60,089 9,000 -
Net Income $148,540 $ 1,683 (B) $148,540 $ 742 $ 941
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, 1995, are an integral part of the consolidating financial statements.
-41-
<PAGE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1995
(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 $ 190,742 $ 8,454 $ 190,719 $ 150 $ 8,327
Net income 148,540 1,683 148,540 742 941
Cash dividends declared on common stock (95,000) (1,578) (95,000) (278) (1,300)
Cash dividends on cumulative preferred stock (944) (944)
Net unrealized gain on investments 5,119 5,119
Other adjustments, net (23) 23
Balance at end of year $ 248,434 $ 8,582 $ 248,434 $ 614 $ 7,968
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, 1995, are an integral part of the consolidating financial statements.
-42-
<PAGE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1995
(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 Activities:
Net income $ 148,540 $ 1,683 $ 148,540 $ 742 $ 941
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries - (1,683) (1,683)
Depreciation and amortization 84,848 84,360 488
Amortization of property under capital leases 13,667 13,667
Three Mile Island Unit 2 costs (118,209) (118,209)
Nuclear outage maintenance costs, net (5,931) (5,931)
Deferred income taxes and investment tax credits, net 68,827 68,651 176
Deferred energy costs, net (1,041) (1,041)
Allowance for other funds used during construction (1,304) (1,257) (47)
Changes in working capital:
Receivables (13,092) (13,105) 13
Materials and supplies 7,053 7,053
Special deposits and prepayments 1,615 1,615
Payables and accrued liabilities (6,521) (6,809) 368 (80)
Due to/from affiliates (9,538) (10,025) (758) 1,245
Other, net (36,318) (36,318)
Net cash provided by operating activities 132,596 - 129,508 352 2,736
Investing Activities:
Cash construction expenditures (112,554) (111,094) (1,460)
Contributions to decommissioning trusts (13,485) (13,485)
Other, net (300) (300)
Net cash used for investing activities (126,339) - (124,879) - (1,460)
Financing Activities:
Issuance of long-term debt 87,911 87,911
Increase in notes payable, net 22,390 22,390
Retirement of long-term debt (40,519) (40,519)
Capital lease principal payments (12,531) (12,531)
Dividends paid on preferred stock (944) (944)
Dividends paid on common stock (95,000) (95,000)
Dividends paid on common stock - Internal - 1,578 (278) (1,300)
Capital stock paid-in capital 25,000 25,000
Net cash required by financing activities (13,693) - (12,115) (278) (1,300)
Net increase (decrease) in cash and temporary cash
investments from above activities (7,436) (7,486) 74 (24)
Cash and temporary cash investments, beginning of year 9,246 8,709 1 536
Cash and temporary cash investments, end of year $ 1,810 $ - $ 1,223 $ 75 $ 512
Supplemental Disclosure:
Interest paid $ 57,606 $10,224 $ 58,830 $ 9,000
Income taxes paid $ 47,343 $ 46,660 $ 683
New capital lease obligations incurred $ 22,316 $ 22,316
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, 1995, are an integral part of the consolidating financial statements.
-43-
<PAGE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(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>
ASSETS
Utility Plant:
In service, at original cost $2,667,842 $2,666,795 $1,032 $15
Less, accumulated depreciation 974,992 974,765 227
Net utility plant in service 1,692,850 1,692,030 805 15
Construction work in progress 72,233 72,233
Other, net 30,876 30,876
Net utility plant 1,795,959 1,795,139 805 15
Other Property and Investments:
Common stock of subsidiaries - $ 16,237 (A) 16,237
Nuclear decommissioning trusts 42,440 42,440
Other, net 6,545 6,545
Total other property and investments 48,985 16,237 65,222 - -
Current Assets:
Cash and temporary cash investments 1,367 532 $ 75 760
Special deposits 2,718 2,718
Accounts receivable:
Customers, net 67,454 67,454
Other 29,033 12,001 (B) 29,026 12,001 7
Unbilled revenues 30,851 30,851
Materials and supplies, at average
cost or less:
Construction and maintenance 53,237 53,237
Fuel 11,285 11,285
Deferred energy costs 9,335 9,335
Deferred income taxes 4,602 4,602
Prepayments 10,328 10,328
Total current assets 220,210 12,001 219,368 12,076 767 -
Deferred Debits and Other Assets:
Regulatory assets:
Three Mile Island Unit 2 deferred costs 81,236 81,236
Income taxes recoverable
through future rates 214,284 214,284
Other 19,485 19,485
Total regulatory assets 315,005 315,005
Deferred income taxes 78,754 78,754
Other 14,657 108,247 (C) 14,657 108,247
Total deferred debits and other assets 408,416 108,247 408,416 108,247 - -
Total Assets $2,473,570 $136,485 $2,488,145 $120,323 $1,572 $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, 1995, are an integral part of the consolidating financial statements.
-44-
<PAGE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1995
(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 285,486 15,439 (A) 285,486 14,072 1,367
Retained earnings 327,814 827 (A) 327,814 691 136
Total common stockholder's equity 719,112 16,283 719,112 14,764 1,504 15
Cumulative preferred stock 36,777 36,777
Company-obligated mandatorily
redeemable preferred securities 105,000 105,000
Long-term debt 642,487 108,247 (C) 750,734
Total capitalization 1,503,376 124,530 1,506,623 119,764 1,504 15
Current Liabilities:
Securities due within one year 75,009 75,009
Notes payable 27,100 27,100
Obligations under capital leases 22,751 22,751
Accounts payable 80,493 12,001 (B) 92,494
Taxes accrued 16,019 15,456 559 4
Interest accrued 19,567 19,567
Other 29,424 29,424
Total current liabilities 270,363 12,001 281,801 559 4 -
Deferred Credits and Other Liabilities:
Deferred income taxes 462,354 462,329 25
Unamortized investment tax credits 45,114 45,075 39
Three Mile Island Unit 2 future costs 103,271 103,271
Regulatory liabilities 33,941 33,941
Other 55,151 (46)(A) 55 105
Total deferred credits
and other liabilities 699,831 (46) 699,721 - 64 -
Total Liabilities and Capital $2,473,570 $136,485 $2,488,145 $120,323 $1,572 $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, 1995, are an integral part of the consolidating financial statements.
-45-
<PAGE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1995
(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 $981,329 $981,329 $ -
Equity in Earnings of
Subsidiaries - $ 793 (A) 793
Operating Expenses:
Fuel 174,624 174,624
Power purchased and interchanged:
Affiliates 5,927 5,927
Other 195,184 195,184
Deferral of energy costs, net 1,088 1,088
Other operation and maintenance 266,347 266,347
Depreciation and amortization 83,086 83,074 $ 12
Taxes, other than income taxes 67,064 67,049 15
Total operating expenses 793,320 - 793,293 27
Operating Income Before Income Taxes 188,009 793 188,829 (27)
Income taxes 45,948 (420)(B) 45,545 (17)
Operating Income 142,061 1,213 143,284 (10)
Other Income and Deductions:
Allowance for other funds used
during construction 2,006 2,006
Other income, net 56,454 10,472 (C) 56,499 $10,387 40
Income taxes
(24,431) (420)(B) (24,415) (420) (16)
Total other income
and deductions 34,029 10,052 34,090 9,967 24
Income Before Interest Charges and
Dividends on Preferred Securities 176,090 11,265 177,374 9,967 14
Interest Charges and Dividends
on Preferred Securities:
Interest on long-term debt 49,875 49,875
Other interest 8,428 10,472 (C) 18,900
Allowance for borrowed funds used
during construction (2,411) (2,411)
Dividends on company-obligated
mandatorily redeemable
preferred securities 9,188 9,188
Total interest charges and
dividends on preferred
securities 65,080 10,472 66,364 9,188 -
Net Income $111,010 $ 793 (A) $111,010 $ 779 $ 14 $ -
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, 1995, are an integral part of the consolidating financial statements.
-46-
<PAGE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1995
(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 $ 290,786 $ 287 $ 290,755 $ 196 $122 $ -
Net income 111,010 793 111,010 779 14
Cash dividends declared on common stock (75,000) (284) (75,000) (284)
Cash dividends on cumulative
preferred stock (1,544) (1,544)
Net unrealized gain on investments 2,593 2,593
Other adjustments, net (31) 31
Balance at end of year $ 327,814 $ 827 $ 327,814 $ 691 $136 $ -
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, 1995, are an integral part of the consolidating financial statements.
-47-
<PAGE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
Pennsylvania
Electric Company
and Subsidiary Eliminations Pennsylvania Penelec
Companies and Electric Preferred
Consolidated Adjustments Company Capital, Inc.
<S> <C> <C> <C> <C>
Operating Activities:
Net income $ 111,010 $ 793 $ 111,010 $ 779
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries - (793) (793)
Depreciation and amortization 77,635 77,623
Amortization of property under capital leases 7,777 7,777
Three Mile Island Unit 2 costs (51,796) (51,796)
Nuclear outage maintenance costs, net (2,901) (2,901)
Deferred income taxes and investment tax credits, net 42,514 42,515
Deferred energy costs, net 1,491 1,491
Allowance for other funds used during construction (2,006) (2,006)
Changes in working capital:
Receivables (7,744) (7,760)
Materials and supplies 4,912 4,912
Special deposits and prepayments (5,078) (5,078)
Payables and accrued liabilities 4,869 4,500 379
Due to/from affiliates 3,403 4,203 (800)
Other, net 1,178 1,178
Net cash provided by operating activities 185,264 - 184,875 358
Investing Activities:
Cash construction expenditures (130,512) (130,512)
Contributions to decommissioning trusts (5,263) (5,263)
Other, net (323) (323)
Net cash used for investing activities (136,098) - (136,098) -
Financing Activities:
Issuance of long-term debt 197,997 197,997
Decrease in notes payable, net (83,952) (83,952)
Retirement of long-term debt (99,319) (99,319)
Capital lease principal payments (7,172) (7,172)
Dividends paid on preferred stock (1,544) (1,544)
Dividends paid on common stock (75,000) (75,000)
Dividends paid on common stock - Internal - 284 (284)
Capital stock paid-in capital 20,000 20,000
Net cash required by financing activities (48,990) - (48,706) (284)
Net increase in cash and temporary cash
investments from above activities 176 71 74
Cash and temporary cash investments, beginning of year 1,191 461 1
Cash and temporary cash investments, end of year $ 1,367 $ - $ 532 $ 75
Supplemental Disclosure:
Interest paid $ 60,524 $10,472 $ 61,808 $ 9,188
Income taxes paid $ 43,685 $ 43,684
New capital lease obligations incurred $ 11,160 $ 11,160
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, 1995, are an integral part of the consolidating financial statements.
-48-
<PAGE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1995
(In Thousands)
<CAPTION>
Waverly
Nineveh Electric Light
Water and Power
Company Company
<S> <C> <C>
Operating Activities:
Net income $ 14 $ -
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
Nuclear outage maintenance costs, net
Deferred income taxes and investment tax credits, net (1)
Deferred energy costs, net
Allowance for other funds used during construction
Changes in working capital:
Receivables 16
Materials and supplies
Special deposits and prepayments
Payables and accrued liabilities (10)
Due to/from affiliates
Other, net
Net cash provided by operating activities 31 -
Investing Activities:
Cash construction expenditures
Contributions to decommissioning trusts
Other, net
Net cash used for investing activities
- -
Financing Activities:
Issuance of long-term debt
Decrease in notes payable, net
Retirement of long-term debt
Capital lease principal payments
Dividends paid on preferred stock
Dividends paid on common stock
Dividends paid on common stock - Internal
Capital stock paid-in capital
Net cash required by financing activities
- -
Net increase in cash and temporary cash
investments from above activities 31
Cash and temporary cash investments, beginning of year 729
Cash and temporary cash investments, end of year $760 $ -
Supplemental Disclosure:
Interest paid
Income taxes paid $ 1
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, 1995,
are an integral part of the consolidating financial statements.
-48-
</TABLE>
<PAGE>
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000040779
<NAME> GENERAL PUBLIC UTILITIES CORPORATION
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> MAR-31-1996
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 6,367,638
<OTHER-PROPERTY-AND-INVEST> 799,300
<TOTAL-CURRENT-ASSETS> 1,028,754
<TOTAL-DEFERRED-CHARGES> 1,888,782
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 10,084,474
<COMMON> 314,458
<CAPITAL-SURPLUS-PAID-IN> 747,563
<RETAINED-EARNINGS> 2,106,608
<TOTAL-COMMON-STOCKHOLDERS-EQ> 3,079,107 <F1>
454,000 <F2>
98,116
<LONG-TERM-DEBT-NET> 2,510,040
<SHORT-TERM-NOTES> 205,415
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 21,964
<LONG-TERM-DEBT-CURRENT-PORT> 128,044
20,000
<CAPITAL-LEASE-OBLIGATIONS> 10,274
<LEASES-CURRENT> 167,885
<OTHER-ITEMS-CAPITAL-AND-LIAB> 3,389,629
<TOT-CAPITALIZATION-AND-LIAB> 10,084,474
<GROSS-OPERATING-REVENUE> 1,022,934
<INCOME-TAX-EXPENSE> 68,010
<OTHER-OPERATING-EXPENSES> 793,718
<TOTAL-OPERATING-EXPENSES> 861,728
<OPERATING-INCOME-LOSS> 161,206
<OTHER-INCOME-NET> 7,536
<INCOME-BEFORE-INTEREST-EXPEN> 168,742
<TOTAL-INTEREST-EXPENSE> 60,489 <F3>
<NET-INCOME> 108,253
0
<EARNINGS-AVAILABLE-FOR-COMM> 108,253
<COMMON-STOCK-DIVIDENDS> 54,718
<TOTAL-INTEREST-ON-BONDS> 189,820
<CASH-FLOW-OPERATIONS> 231,404
<EPS-PRIMARY> .90
<EPS-DILUTED> .90
<FN>
<F1> INCLUDES REACQUIRED COMMON STOCK OF $89,522.
<F2> INCLUDES SUBSIDIARY-OBLIGATED MANDATORILY REDEEMABLE PREFERRED
<F2> SECURITIES OF $330,000.
<F3> INCLUDES DIVIDENDS ON SUBSIDIARY-OBLIGATED MANDATORILY REDEEMABLE
<F3> PREFERRED SECURITIES OF $7,222 AND PREFERRED STOCK DIVIDENDS OF
<F3> SUBSIDIARIES OF $4,208.
</FN>
<PAGE>
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000053456
<NAME> JERSEY CENTRAL POWER & LIGHT COMPANY
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> MAR-31-1996
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 2,922,426
<OTHER-PROPERTY-AND-INVEST> 341,372
<TOTAL-CURRENT-ASSETS> 465,981
<TOTAL-DEFERRED-CHARGES> 823,257
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 4,553,036
<COMMON> 153,713
<CAPITAL-SURPLUS-PAID-IN> 510,769
<RETAINED-EARNINGS> 867,680
<TOTAL-COMMON-STOCKHOLDERS-EQ> 1,532,162
249,000 <F1>
37,741
<LONG-TERM-DEBT-NET> 1,162,997
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 30,010
20,000
<CAPITAL-LEASE-OBLIGATIONS> 2,007
<LEASES-CURRENT> 103,764
<OTHER-ITEMS-CAPITAL-AND-LIAB> 1,415,355
<TOT-CAPITALIZATION-AND-LIAB> 4,553,036
<GROSS-OPERATING-REVENUE> 529,274
<INCOME-TAX-EXPENSE> 25,564
<OTHER-OPERATING-EXPENSES> 426,349
<TOTAL-OPERATING-EXPENSES> 451,913
<OPERATING-INCOME-LOSS> 77,361
<OTHER-INCOME-NET> 2,094
<INCOME-BEFORE-INTEREST-EXPEN> 79,455
<TOTAL-INTEREST-EXPENSE> 24,959 <F2>
<NET-INCOME> 54,496
3,586
<EARNINGS-AVAILABLE-FOR-COMM> 50,910
<COMMON-STOCK-DIVIDENDS> 0 <F3>
<TOTAL-INTEREST-ON-BONDS> 92,617
<CASH-FLOW-OPERATIONS> 174,047
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
<F1> INCLUDES COMPANY-OBLIGATED MANDATORILY REDEEMABLE PREFERRED
<F1> SECURITIES OF $125,000.
<F2> INCLUDES DIVIDENDS ON COMPANY-OBLIGATED MANDATORILY REDEEMABLE
<F2> PREFERRED SECURITIES OF $2,675.
<F3> REPRESENTS COMMON STOCK DIVIDENDS PAID TO PARENT CORPORATION.
</FN>
<PAGE>
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000065350
<NAME> METROPOLITAN EDISON COMPANY
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> MAR-31-1996
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,594,289
<OTHER-PROPERTY-AND-INVEST> 114,085
<TOTAL-CURRENT-ASSETS> 198,478
<TOTAL-DEFERRED-CHARGES> 541,099
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 2,447,951
<COMMON> 66,273
<CAPITAL-SURPLUS-PAID-IN> 370,200
<RETAINED-EARNINGS> 263,088
<TOTAL-COMMON-STOCKHOLDERS-EQ> 699,561
100,000 <F1>
23,598
<LONG-TERM-DEBT-NET> 603,269
<SHORT-TERM-NOTES> 25,990
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 4,193
<LONG-TERM-DEBT-CURRENT-PORT> 15,019
0
<CAPITAL-LEASE-OBLIGATIONS> 827
<LEASES-CURRENT> 40,361
<OTHER-ITEMS-CAPITAL-AND-LIAB> 935,133
<TOT-CAPITALIZATION-AND-LIAB> 2,447,951
<GROSS-OPERATING-REVENUE> 237,688
<INCOME-TAX-EXPENSE> 20,856
<OTHER-OPERATING-EXPENSES> 178,440
<TOTAL-OPERATING-EXPENSES> 199,296
<OPERATING-INCOME-LOSS> 38,392
<OTHER-INCOME-NET> 236
<INCOME-BEFORE-INTEREST-EXPEN> 38,628
<TOTAL-INTEREST-EXPENSE> 14,591 <F2>
<NET-INCOME> 24,037
236
<EARNINGS-AVAILABLE-FOR-COMM> 23,801
<COMMON-STOCK-DIVIDENDS> 10,000 <F3>
<TOTAL-INTEREST-ON-BONDS> 46,299
<CASH-FLOW-OPERATIONS> 44,140
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
<F1> REPRESENTS COMPANY-OBLIGATED MANDATORILY REDEEMABLE PREFERRED
<F1> SECURITIES.
<F2> INCLUDES DIVIDENDS ON COMPANY-OBLIGATED MANDATORILY REDEEMABLE
<F2> PREFERRED SECURITIES OF $2,250.
<F3> REPRESENTS COMMON STOCK DIVIDENDS PAID TO PARENT CORPORATION.
</FN>
<PAGE>
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000077227
<NAME> PENNSYLVANIA ELECTRIC COMPANY
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> MAR-31-1996
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,795,070
<OTHER-PROPERTY-AND-INVEST> 51,720
<TOTAL-CURRENT-ASSETS> 250,966
<TOTAL-DEFERRED-CHARGES> 408,837
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 2,506,593
<COMMON> 105,812
<CAPITAL-SURPLUS-PAID-IN> 285,486
<RETAINED-EARNINGS> 338,370
<TOTAL-COMMON-STOCKHOLDERS-EQ> 729,668
105,000 <F1>
36,777
<LONG-TERM-DEBT-NET> 642,477
<SHORT-TERM-NOTES> 70,700
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 17,771
<LONG-TERM-DEBT-CURRENT-PORT> 50,009
0
<CAPITAL-LEASE-OBLIGATIONS> 4,964
<LEASES-CURRENT> 21,126
<OTHER-ITEMS-CAPITAL-AND-LIAB> 828,101
<TOT-CAPITALIZATION-AND-LIAB> 2,506,593
<GROSS-OPERATING-REVENUE> 269,329
<INCOME-TAX-EXPENSE> 21,590
<OTHER-OPERATING-EXPENSES> 201,079
<TOTAL-OPERATING-EXPENSES> 222,669
<OPERATING-INCOME-LOSS> 46,660
<OTHER-INCOME-NET> (680)
<INCOME-BEFORE-INTEREST-EXPEN> 45,980
<TOTAL-INTEREST-EXPENSE> 15,465 <F2>
<NET-INCOME> 30,515
386
<EARNINGS-AVAILABLE-FOR-COMM> 30,129
<COMMON-STOCK-DIVIDENDS> 20,000 <F3>
<TOTAL-INTEREST-ON-BONDS> 50,904
<CASH-FLOW-OPERATIONS> 17,715
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
<F1> REPRESENTS COMPANY-OBLIGATED MANDATORILY REDEEMABLE PREFERRED
<F1> SECURITIES.
<F2> INCLUDES DIVIDENDS ON COMPANY-OBLIGATED MANDATORILY REDEEMABLE
<F2> PREFERRED SECURITIES OF $2,297.
<F3> REPRESENTS COMMON STOCK DIVIDENDS PAID TO PARENT CORPORATION.
</FN>
<PAGE>
</TABLE>
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 as of 12/31/95|
|_________________________________|
-1-<PAGE>
Exhibit H-1
Energy Initiatives, Inc.
EWG Organizational Chart
_________________________________
| |
| Energy Initiatives, Inc. |
| |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Selkirk, Inc. |
| |
| |
|_________________________________|
|
|
20% |
________________|________________
| |
| Selkirk Cogeneration Partners |
| Limited Partnership |
| (EWG) |
|2 facilities |
|350 MW total |
|_________________________________|
-2-
<PAGE>
Exhibit H-1
EI Power, Inc.
EWG Organizational Chart
_________________________________
| |
| EI Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Hanover Energy Corporation |
| (EWG) |
|Inactive |
|_________________________________|
-3-<PAGE>
Exhibit H-1
EI Power, Inc.
EWG Organizational Chart
_________________________________
| |
| EI Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Power (China), Inc. |
| (EWG) |
|Inactive |
|_________________________________|
|
|
50% |
________________|________________
| |
| China Power Partners, L.P. |
| (EWG) |
|Inactive |
|_________________________________|
-4-
<PAGE>
Exhibit H-1
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 |
|_________________________________|
-5-
<PAGE>
Exhibit H-1
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 |
|_________________________________|
-6-
<PAGE>
Exhibit H-1
EI Power, Inc.
EWG Organizational Chart
_________________________________
| |
| EI Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Power (China) III, Inc. |
| (EWG) |
|Inactive |
|_________________________________|
|
|
50% |
________________|________________
| |
| Zhuang He Power Partners, L.P. |
| (EWG) |
|Inactive |
|_________________________________|
-7-
<PAGE>
Exhibit H-1
EI Power, Inc.
EWG Organizational Chart
_________________________________
| |
| EI Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Guaracachi America, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
50% |
________________|________________
| |
| Empresa Guaracachi S.A. |
| (EWG) |
|3 facilities |
|216 MW total |
|_________________________________|
-8-
<PAGE>
Exhibit H-1
EI Power, Inc.
EWG Organizational Chart
_________________________________
| |
| EI Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Barranquilla, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
29% |
________________|________________
| |
| Termobarranquilla S.A. |
| (EWG) |
|2 facilities |
|990 MW total |
|750 MW under construction |
|_________________________________|
-9-
<PAGE>
Exhibit H-1
EI Power, Inc.
EWG Organizational Chart
_________________________________
| |
| EI Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Barranquilla Lease Holding, Inc.|
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Los Amigos Leasing Company, Ltd.|
| (EWG) |
| |
|_________________________________|
-10-
<PAGE>
Exhibit H-1
EI Power, Inc.
EWG Organizational Chart
_________________________________
| |
| EI Power, Inc. |
| (EWG) |____
| | |
| | |
|_________________________________| |
| |
| |
100% | |
________________|________________ |
| | |
| EI International | |
| (EWG) | |
| | |
|_________________________________| |
| |
| |
99% | |
________________|________________ |
| | |
| EI Services Colombia, Ltda. | | 1%
| (EWG) |____|
| |
| |
|_________________________________|
-11-
<PAGE>
Exhibit H-1
EI Power, Inc.
EWG Organizational Chart
_________________________________
| |
| EI Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| International Power |
| Advisors, Inc. |
| (EWG) |
|Inactive |
|_________________________________|
-12-
<PAGE>
Exhibit H-1
EI Power, Inc.
EWG Organizational Chart
_________________________________
| |
| EI Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Colombian Installations, Inc. |
| (EWG) |
|Inactive |
|_________________________________|
-13-
<PAGE>
Exhibit H-1
EI Power, Inc.
EWG Organizational Chart
_________________________________
| |
| EI Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Austin Cogeneration Corporation |
| (EWG) |
|Inactive |
|_________________________________|
|
|
100% |
________________|________________
| |
| Austin Cogeneration |
| Partners, L.P |
| (EWG) |
|Inactive |
|_________________________________|
-14-
<PAGE>
Exhibit H-1
EI Energy, Inc.
FUCO Organizational Chart
_________________________________
| |
| EI Energy, Inc. |
| (FUCO) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Victoria Electric, Inc. |
| (FUCO) |
| |
|_________________________________|
|
|
50% |
________________|________________
| |
| Solaris Power |
| (FUCO) |
|Distribution company |
|_________________________________|
-15-
<PAGE>
