Amendment No. 2 to
SEC File No. 70-8913
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM U-1
APPLICATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 ("Act")
GPU INTERNATIONAL, INC. ("GPUI")
One Upper Pond Road
Parsippany, New Jersey 07054
(Name of company filing this statement and
address of principal executive offices)
GPU, INC. ("GPU")
(Name of top registered holding company parent of applicant)
M. A. Nalewako, Secretary W. S. Greengrove, Secretary
M. J. Connolly, Esq., Assistant GPU International, Inc.
General Counsel One Upper Pond Road
GPU Service, Inc. Parsippany, New Jersey 07054
100 Interpace Parkway
Parsippany, New Jersey 07054
Douglas E. Davidson, Esq.
Berlack, Israels & Liberman LLP
120 West 45th Street
New York, New York 10036
(Names and addresses of agents for service)<PAGE>
GPUI hereby amends its Application on Form U-1, as
heretofore amended, docketed in SEC File No. 70-8913, as follows:
1. By revising paragraphs A through G of Item 1
thereof to read in their entirety as follows:
A. GPUI (formerly known as Energy Initiatives, Inc.),
a direct wholly owned subsidiary of GPU, is primarily engaged in
the business of developing, owning and operating generation,
transmission and distribution facilities in the United States and
in foreign countries and related activities. GPUI proposes,
directly or through a direct or indirect wholly owned subsidiary
("Subsidiary"), to invest in an enterprise (the "Enterprise")
with one or more unaffiliated entities for the purposes of
developing, manufacturing and marketing stationary electrical
power systems employing fuel cell technology.
A fuel cell is an electrochemical device that produces
electricity directly without combustion, cleanly and with high
efficiency. In a fuel cell, hydrogen fuel (in pure form or
obtained from natural gas or methanol) and oxygen (from the air)
are combined to produce electricity, heat and water. Unlike a
battery, a fuel cell does not require recharging, as it provides
power as long as fuel is supplied. By contrast, combustion
engines operate by burning fuel to create heat, turn heat into
mechanical energy and convert this mechanical energy into
electric power. These multiple processes, however, result in
lower efficiency and create more pollution.
GPUI thus believes that fuel cell stationary power
plants can become an attractive low emission source of power, for
both utility and non-utility applications. As such, fuel cell
power plants could be utilized by electric distribution<PAGE>
companies, such as the GPU Energy companies, and their
commercialization could generate additional revenues and earnings
for the GPU System.
B. GPUI has been holding discussions with
representatives of a company (the "Developer") which has been
engaged for several years in the business of developing and
marketing fuel cell-based power systems with a primary focus on
certain limited applications. The Developer and GPUI have also
determined that there exists an accessible market for stationary
fuel cell-based systems, i.e., systems having a more or less
fixed situs. This market would include, among other things, so-
called "remote" or "distributed generation". "Distributed
generation" is commonly considered to include electrical power
generating systems which are smaller than the typical utility-
owned central generating station and are used as stand-alone
systems at the point of use to power a particular residential
commercial or industrial site or to address a specific, localized
utility need by providing supplemental power to the utility grid.
Use of distributed generation can defer expansion of transmission
and distribution systems, reduce line losses and improve
reliability and power quality. It is expected that power systems
of 1 kw or more would be within the business of the Enterprise,
although smaller systems might also be included if they are
otherwise consistent with the concept of "stationary" systems.
C. GPUI will invest, directly or through a direct or
indirect wholly owned subsidiary, up to $23.25 million in the
2
<PAGE>
Enterprise(1) (which amount includes the purchase price of two
field test power plants to be purchased by GPUI from the
Enterprise), from time to time through 1998. The timing and
amount of each such investment will be based on the achievement
of specified milestones by the Enterprise relating to formulation
of a business plan, consummation of other financing by the
Enterprise and completion of prototype and field test power
plants.
In consideration for its investment, GPUI will acquire
(in addition to the two field test units) Class B Voting Common
shares and Class C Non-Voting Preferred Shares of the Enterprise,
as well as options to acquire, for an aggregate purchase price of
$1.00, a specified number of additional shares of the Enterprise.
Upon making its full investment and exercise in full of such
options, GPUI will own securities in the Enterprise representing
not in excess of 9.9% of the total voting power and not in excess
of 20% of the equity of the Enterprise. The Developer will own
the remainder of the outstanding shares of the Enterprise,
although it is currently expected that one or more be additional
investors will acquire equity interests in the Enterprise in the
future.
As the holder of Class B Voting Common Shares, GPUI
will have the right to designate one member of the Enterprise's
board of directors. An additional director will be designated by
the Enterprise's management and the Developer will designate a
majority of the board, which will, except as set forth below,
generally act
by ordinary majority vote. Under the Unanimous Shareholder
____________________
1 Additional information about the Enterprise is set forth in
Exhibit I hereto which is being filed separately under a request
for confidential treatment pursuant to Rule 104(b) under the Act.
3
<PAGE>
Agreement, GPUI will have the right to cause the Enterprise or
the Developer to purchase GPUI's interest in the Enterprise
undercertain circumstances, including the taking of certain
specified actions by the Enterprise over GPUI's objection. The
Class C Non-Voting Preferred Shares will entitle GPUI to a
preference, in the event of a liquidation, dissolution or winding
up of the Enterprise, in an amount equal to its $23.25 million
investment.
GPUI's voting and liquidation rights, and its rights
with respect to significant actions, will terminate upon
consummation of the Enterprise's initial public offering.
The Developer will transfer to the Enterprise all
assets, and license to the Enterprise all relevant technology,
relating to the development, manufacturing and marketing of
stationary fuel cell-based power systems. The Developer will
also provide administrative and management support to the
Enterprise for up to two years and will sell the requisite fuel
cells and related components to the Enterprise for incorporation
into the systems to be produced and sold by the Enterprise.
D. GPUI therefore requests authority (1) to acquire
an interest in the stationary fuel cell-based power system
business as aforesaid and (2) to acquire the securities of a
Subsidiary and/or, directly or indirectly, the securities of the
Enterprise. The Enterprise will not own or operate any
facilities for the generation, transmission or distribution of
electric energy. Therefore, neither any Subsidiary nor the
Enterprise will become an "electric utility company" as defined
in Section 2(a)(3) of the Act. GPUI's aggregate investment in
4
<PAGE>
the Enterprise will not exceed $30 million, which is expected to
be funded through capital contributions from GPU, internally
generated sources at GPUI or drawdowns by GPUI under existing
lines of credit, or any combination of the foregoing.
E. GPUI will also be granted warrants exercisable for
five years to purchase up to 100,000 shares of common stock of
the Developer at an exercise price equal to the average of the
closing prices of such shares from October 23, 1996 to
December 2, 1996. It is requested that the Commission authorize
the acquisition of such warrants, but that it reserve
jurisdiction over the exercise of such warrants.
F. The authorization requested herein with respect to
the acquisition of securities of a Subsidiary and/or the
Enterprise shall expire upon the first to occur of (i) December
31, 2000 and (ii) the adoption by the Commission of proposed Rule
58 (HCAR No. 35-26313, June 20, 1995) or such other rule,
regulation or order as shall exempt the transactions as herein
proposed from Section 9(a) of the Act.
G. Certain personnel of GPUI familiar with the market
for, and marketing of, distributed generation may provide
consulting or other marketing-related services to the Enterprise.
These services may include analysis of specific user requirements
and of the applications and size ranges of stationary systems
that will have the broadest market appeal. GPUI personnel will
also participate in development of the Enterprise's business and
marketing plans and monitor their implementation. Any such
services provided to the Enterprise at a time when the Enterprise
is a "subsidiary company" of GPU will be provided at cost in
5
<PAGE>
compliance with Rules 90 and 91 under the Act, unless otherwise
authorized by the Commission.
2. By completing Item 2 thereof to read in its
entirety as follows:
Item 2. Fees, Commissions and Expenses.
The estimated fees, commissions and expenses to be
incurred in connection herewith are as follows:
Filing fees - Securities and
Exchange Commission $ 2,000
Legal fees:
Berlack, Israels & Liberman LLP 110,000
Special Local Counsel 60,000
Accounting fees:
Ernst & Young LLP 15,000
Miscellaneous 13,000
________
Total $200,000
3. By filing the following exhibits in Item 6(a)
thereof.
A-1 Form of Certificate of Incorporation of
Subsidiary
A-2 Form of By-Laws of Subsidiary
A-3 Form of Subsidiary stock certificate
F Opinion of Berlack, Israels & Liberman LLP
4. By separately filing the following additional
exhibits in Item 6(a) thereof under a request for confidential
treatment pursuant to Rule 104(b) under the Act:
A-4 Form of Articles of Incorporation of the
Enterprise
A-5 Form of Bylaws of the Enterprise
B-1 Form of Subscription Agreement
B-2 Form of Unanimous Shareholder Agreement
I Description of the Enterprise
6
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE PUBLIC UTILITY
HOLDING COMPANY ACT OF 1935, THE UNDERSIGNED COMPANY HAS DULY
CAUSED THIS STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED
THEREUNTO DULY AUTHORIZED.
GPU INTERNATIONAL, INC.
By: /s/B. L. Levy
B. L. Levy, President
Date: December 6, 1996
<PAGE>
(EXHIBITS TO BE FILED BY EDGAR)
Exhibits:
A-1 Form of Certificate of Incorporation of
Subsidiary
A-2 Form of By-Laws of Subsidiary
A-3 Form of Subsidiary stock certificate
F Opinion of Berlack, Israels & Liberman LLP<PAGE>
EXHIBIT A-1
FORM OF [CERTIFICATE/ARTICLES] OF INCORPORATION
I. The name of the Corporation is _____________________.
II. The location and post office address of the registered
office of the Corporation in _______________________
is:
________________________________________________________
________________________________________________________
________________________________________________________
III. The purposes for which the Corporation is incorporated
are to engage in all lawful business for which
corporations may be incorporated under the [applicable
corporate law].
IV. The Corporation is incorporated under the provisions of
the [applicable corporate law].
V. The term of existence of the Corporation shall be
perpetual.
VI. The aggregate number of shares which the Corporation
shall have the authority to issue is
_________________________ (_____) shares of the par
value of $_____ per share, all of which shall be
designated "Common Shares".
VII. The name and address of the sole incorporator is
______________________________________________________.
VIII. The number of directors shall not be less than one nor
more than twelve. The number of directors within said
minimum and maximum limits which shall constitute the
Board of Directors shall be specified in the By-Laws of
the Corporation.
IN WITNESS WHEREOF, the Incorporator has hereunto signed
[this Certificate] [these Articles] of Incorporation this
____ day of _____, 199_.
________________________________________
Sole Incorporator<PAGE>
EXHIBIT A-2
FORM OF BY-LAWS
Offices
1. The principal office of the Corporation shall be in
__________________. 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 "________________". 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.
Shareholders' Meetings
3. All meetings of shareholders 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 shareholders 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
shareholders 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/Articles] of Incorporation, as amended from time to
time, 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 shareholders. 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
shareholders 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<PAGE>
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 the shareholders each shareholder
having the right to vote shall be entitled to vote in person or
by proxy appointed by an instrument executed in writing by such
shareholder, or by his duly appointed attorney; but no proxy
shall be valid after the expiration of eleven months from the
date of its execution unless the shareholder executing it shall
have specified therein the length of time it is to continue in
force, which shall be for some specified period permitted by law.
Each holder of record of stock having voting power shall be
entitled to one vote for each share of stock standing in the name
of such holder on the stock transfer books of the Corporation.
The vote for directors, and upon the demand of any shareholder or
duly authorized proxy, the vote upon any question before the
meeting, shall be by ballot. For all elections of directors, the
candidates receiving the highest number of votes from each class
or group of classes, if any, entitled to elect directors
separately up to the number of directors to be elected by the
class or group of classes shall be elected. 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. 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, shall not be
voted.
7. A complete list of the shareholders entitled to vote at
any meeting of shareholders, arranged in alphabetical order, with
the residence of each, and the number of shares held by each,
shall be prepared by the Secretary and filed in the principal
office of the Corporation at least fifteen days before the
meeting, and shall be open to the examination of any shareholder
at all times prior to such meeting, during the usual hours for
business, and shall be available at the time and place of such
meeting and open to the examination of any shareholder.
8. Special meetings of the shareholders for any purpose or
purposes, unless otherwise prescribed by law or by the
[Certificate/Articles] of Incorporation, may be called by the
Chairman of the Board of Directors or by the President or by a
majority of the Executive Committee, and shall be called by the
President or Secretary at the request in writing of holders of
record of twenty percent of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote.
Business transacted at all special meetings of the shareholders
shall be confined to the purposes stated in the call.
9. (a) Notice of every meeting of shareholders, setting
forth the time and the place and briefly the purpose or purposes<PAGE>
thereof, shall be given, not less than ten nor more than fifty
days prior to such meeting, to each shareholder of record (at the
shareholder's address appearing on the stock books of the
Corporation, unless the shareholder shall have filed with the
Secretary of the Corporation a written request that notices
intended for such shareholder 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,
by the [Certificate/Articles] of Incorporation, as amended, or by
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
shareholders at a meeting thereof is required or permitted to be
taken in connection with any corporate action, the meeting and
vote of shareholders may be dispensed with, if all the
shareholders who would have been entitled to vote upon the action
if such meeting were held, shall consent in writing prior or
subsequent 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/Articles] of
Incorporation under which the written consent of the holders of
less than all outstanding shares is sufficient for corporate
action.
Directors
10. The business and affairs of the Corporation shall be
managed under the direction of its Board of Directors, which
shall consist of not less than one nor more than twelve
directors. Each director shall be at least twenty-one years of
age. Directors need not be shareholders of the Corporation.
Directors shall be elected at the annual meeting of shareholders,
or, if any such election shall not be held, at a shareholders'
meeting called and held in accordance with the provisions of
applicable law. Each director shall serve until the next annual
meeting of shareholders and thereafter until such director's
successor shall have been elected and shall qualify.
11. In addition to the powers and authority by the By-Laws
expressly conferred upon it, the Board of Directors may exercise
all such powers of the Corporation and do all such lawful acts
and things as are not by law or by the [Certificate/Articles] of
Incorporation, as amended, or by the By-Laws directed or required
to be exercised or done by the shareholders.
12. Unless otherwise required by law, in the absence of
fraud no contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation
and any domestic or foreign corporation, partnership, firm or
association of any type or kind in which one or more of its
directors or officers are directors or officers or have a
financial or other interest, shall be void or voidable solely for
such reason, or solely because such director or officer is
present at or participates in the meeting of the Board or<PAGE>
committee thereof which authorizes the contract or transaction,
or solely because the votes of such director or directors are
counted for such purposes if:
(a) the material facts as to the relationship or
interest and as to the contract or transaction are
disclosed or are known to the Board of Directors and
the Board authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested
directors even though the disinterested directors are
less than a quorum;
(b) the material facts as to such relationship or
interest and as to the contract or transaction are
disclosed or are known to the shareholders entitled to
vote thereon and the contract or transaction is
specifically approved in good faith by vote of those
shareholders; 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
shareholders.
No director or officer shall be liable to account to the
Corporation for any profit realized by such director or officer
from or through any such contract or transaction of the
Corporation by reason of the interest of such director or officer
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 12, nor shall any such
director be liable to account because of such relation. For the
purpose of this Section 12, the term "affiliate" shall mean any
corporation which is an "affiliate" of the Corporation within the
meaning of the Public Utility Holding Company Act of 1935, as
said Act shall at the time be in effect.
Nothing herein shall create liability in any of the events
described in this Section 12 or prevent the authorization,
ratification or approval, in any other manner provided by law, of
any contract or transaction described in this Section 12.
Meetings of the Board of Directors
13. The first meeting of the Board of Directors, for the
purpose of organization, the election of officers, and the
transaction of any other business which may come before the
meeting, shall be held on call of the Chairman within one week
after the annual meeting of shareholders. If the Chairman shall<PAGE>
fail to call such meeting, it may be called by the President or
by any director. Notice of such meeting shall be given in the
manner prescribed for special meetings of the Board of Directors.
14. Regular meetings of the Board of Directors may be held
without notice except for the purpose of taking action on matters
as to which notice is in the By-Laws required to be given, at
such time and place as shall from time to time be designated by
the Board, but in any event at intervals of not more than three
months. Special meetings of the Board of Directors may be called
by the Chairman or by the President or in the absence or
disability of the Chairman and the President, by a Vice
President, or by any two directors, and may be held at the time
and place designated in the call and notice of the meeting.
15. Except as otherwise provided by the By-Laws, any item
or business may be transacted at any meeting of the Board of
Directors, whether or not such item of business shall have been
specified in the notice of meeting. Where notice of any meeting
of the Board of Directors is required to be given by the By-Laws,
the Secretary or other officer performing such duties shall give
notice either personally or by telephone or telegraph or
facsimile transmission at least twenty-four hours before the
meeting, or by mail at least three days before the meeting.
Meetings may be held at any time and place without notice if all
the directors are present or if those not present waive notice in
writing either before or after the meeting.
16. At all meetings of the Board of Directors or a
committee thereof a majority of the entire Board or committee
shall be requisite for, and shall constitute, a quorum for the
transaction of business, and the act of a majority of the
directors present and voting 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/Articles] of Incorporation or any amendment thereto
or by the By-Laws.
17. Any action required or permitted to be taken by the
Board or any committee of the Board may be taken without a
meeting if, prior or subsequent to such action, all members of
the Board or the committee consent in writing to the adoption of
a resolution authorizing the action. The resolution and the
written consents thereto by the members of the Board or committee
shall be filed with the minutes of the proceedings of the Board
or committee. Any regular or special meeting may be adjourned to
any time or place by a majority of the directors present at the
meeting whether or not a quorum shall be present at such meeting,
and no notice of the adjourned meeting shall be required other
than announcement at the meeting.
Committees
18. The Board of Directors may, by the vote of a majority
of the directors in office, create an Executive Committee,
consisting of two or more members, of whom one shall be the chief
executive officer of the Corporation. The other members of the<PAGE>
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; provided, however, that the
Executive Committee shall not have power or authority to (i)
submit to the shareholders any action requiring approval of the
shareholders under applicable law, (ii) create or fill vacancies
on the Board of Directors, (iii) amend or repeal these By-Laws or
adopt new By-Laws, (iv) amend or repeal any resolution of the
Board that by its terms is amendable or repealable only by the
Board, or (v) act on any matter committed by these By-Laws or by
resolution of the Board to another committee of the Board.
19. The Executive Committee shall cause to be kept regular
minutes of its proceedings, which may be transcribed in the
regular minute book of the Corporation, and all such proceedings
shall be reported to the Board of Directors at its next
succeeding meeting. The action of the Executive Committee shall
be subject to revision or alteration by the Board of Directors,
provided that no rights which, in the absence of such revision or
alteration, third persons would have had shall be affected by
such revision or alteration. A majority of the Executive
Committee shall constitute a quorum at any meeting. The Board of
Directors may by vote of a majority of the total number of
directors provided for in Section 10 of the By-Laws fill any
vacancies in the Executive Committee. The Executive Committee
shall designate one of its number as Chairman of the Executive
Committee and may, from time to time, prescribe rules and
regulations for the calling and conduct of meetings of the
Committee, and other matters relating to its procedure and the
exercise of its powers.
20. From time to time the Board of Directors may appoint
any other committee or committees for any purpose or purposes,
which committee or committees shall have such powers and such
tenure of office as shall be specified in the resolution of
appointment. The chief executive officer of the Corporation
shall be a member ex officio of all committees of the Board
unless otherwise directed by the Board in respect of any
committee or committees.
Compensation and Reimbursement of Directors
and Members of the Executive Committee
21. Directors, other than salaried officers of the
Corporation or its affiliates, shall receive compensation for
their services as directors at such rate 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.<PAGE>
22. Directors, other than salaried officers of the
Corporation or its affiliates, who are members of any committee
of the Board shall receive compensation for their services as
such members at such rate 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 such committee or otherwise
performing their duties as members of such committee.
Officers
23. The officers of the Corporation shall be chosen by vote
of a majority of the directors in office and shall be a
President, one or more Vice Presidents, a Secretary and a
Treasurer, and may include a Chairman, a 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, if there be
one, 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. If a
Comptroller shall not be chosen, the Board of Directors shall
designate another officer as principal accounting officer of the
Corporation who in his capacity as such shall have the duties and
responsibilities set forth in Section 33 hereof. Any two offices
may be occupied and the duties thereof may be performed by one
person, but no officer shall execute, acknowledge or verify any
instrument in the name of the Corporation in more than one
capacity.
24. The salaries and other compensation of the officers
(other than assistant officers) of the Corporation shall be
determined from time to time by the Board of Directors. The
salaries and other compensation of the assistant officers of the
Corporation shall be determined from time to time by the
President.
25. 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, perform
such duties, and receive such salaries or other compensation, as
shall be determined from time to time by action of the Board of
Directors.
26. The salary or other compensation of all other employees
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.
27. The officers of the Corporation shall hold office until
the first meeting of the Board of Directors after the next
succeeding annual meeting of shareholders and until their
respective successors are chosen and qualify. Any officer
elected pursuant to Section 23 of the By-Laws may be removed at<PAGE>
any time, with or without cause, by the vote of a majority of
directors then 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, or, in the absence of action by the Board of
Directors, by the Executive Committee, or the chief executive
officer of the Corporation, or such other officer as shall have
been designated for that purpose by the chief executive officer
of the Corporation.
The Chairman
28. (a) If a Chairman shall be chosen by the Board of
Directors, such Chairman shall preside at all meetings of the
Board at which such Chairman shall be present.
(b) If a Chairman shall be chosen by the Board of
Directors and is designated by the Board as chief executive
officer of the Corporation, such Chairman
(i) 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) 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) may, unless otherwise directed by the Board
of Directors pursuant to Section 38 of the By-
Laws, attend in person or by substitute or proxy
appointed by such Chairman and act and vote on
behalf of the Corporation at all meetings of the
shareholders of any corporation in which the
Corporation holds stock and grant any consent,
waiver, or power of attorney in respect of such
stock;
(iv) shall, whenever it may in the opinion of such
Chairman be necessary or appropriate, prescribe
the duties of officers and employees of the
Corporation whose duties are not otherwise
defined; and
(v) 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>
(c) If a Chairman shall be chosen by the Board of
Directors and is not designated by the Board as chief executive
officer of the Corporation, such Chairman
(i) 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; and
(ii) shall have such other powers and perform such
other duties as may be prescribed from time to
time by law, by the By-Laws, or by the Board of
Directors.
The President
29. (a) If a Chairman shall not be chosen by the Board of
Directors, the President shall preside at all meetings of the
Board at which such President shall be present.
(b) If the President shall be designated by the Board
of Directors as chief executive officer of the Corporation, the
President
(i) 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) 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) may, unless otherwise directed by the Board
of Directors pursuant to Section 38 of the By-
Laws, attend in person or by substitute or proxy
appointed by such President and act and vote on
behalf of the Corporation at all meetings of the
shareholders of any corporation in which the
Corporation holds stock and grant any consent,
waiver, or power of attorney in respect of such
stock;<PAGE>
(iv) shall, whenever it may in the opinion of such
President be necessary or appropriate, prescribe
the duties of officers and employees of the
Corporation whose duties are not otherwise
defined; and
(v) shall have such other powers and perform such
other duties as may be prescribed from time to
time by law, by the By-Laws, or by the Board of
Directors.
(c) If the Chairman shall be designated by the Board
of Directors as chief executive officer of the Corporation, the
President,
(i) shall be the chief operating officer of the
Corporation;
(ii) shall have supervision, direction and control
of the conduct of the business of the Corporation,
in the absence or disability of the Chairman,
subject, however, to the control of the Board of
Directors and the Executive Committee, if there be
one;
(iii) may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which
arise in the ordinary course of business of the
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(iv) at the request or in the absence or
disability of the Chairman, may, unless otherwise
directed by the Board of Directors pursuant to
Section 38 of the By-Laws, attend in person or by
substitute or proxy appointed by such President
and act and vote on behalf of the Corporation at
all meetings of the shareholders 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 the
opinion of such President 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<PAGE>
time by law, by the By-Laws, or by the Board of
Directors.
Vice President
30. (a) The Vice President shall, in the absence or
disability of the President, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 29(c)(ii) of the
By-Laws, have supervision, direction and control of the conduct
of the business of the Corporation, subject, however, to the
control of the Board of Directors and the Executive Committee, if
there be one.
(b) The Vice President 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, 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 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) The Vice President may, if the President has been
designated chief executive officer of the Corporation or if the
President is acting pursuant to the provisions of Subsection 29
(c) (ii) of the By-Laws, at the request or in the absence or
disability of the President or in case of the failure of the
President to appoint a substitute or proxy as provided in
Subsections 29 (b) (iii) and 29 (c) (iv) of the By-Laws, unless
otherwise directed by the Board of Directors pursuant to Section
38 of the By-Laws, attend in person or by substitute or proxy
appointed by such Vice President and act and vote on behalf of
the Corporation at all meetings of the shareholders of any
corporation in which the Corporation holds stock and grant any
consent, waiver, or power of attorney in respect of such stock.
(d) The Vice President 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. 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 29 (c) (ii) of
the By-Laws, designate the order in which the respective Vice
Presidents shall have supervision, direction and control of the
business of the Corporation in the absence or disability of the
President.
<PAGE>
The Secretary
31. (a) The Secretary shall attend all meetings of the
Board of Directors and all meetings of the shareholders and
record all votes and the minutes of all proceedings in books to
be kept for that purpose; and shall perform like duties for the
Executive Committee and any other committees created by the Board
of Directors.
(b) The Secretary shall give, or cause to be given,
notice of all meetings of the shareholders, the Board of
Directors, or the Executive Committee of which notice is required
to be given by law or by the By-Laws.
(c) The Secretary 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.
(d) Any records kept by the Secretary shall be the
property of the Corporation and shall be restored to the
Corporation in case of the Secretary's death, resignation,
retirement or removal from office.
(e) The Secretary shall be the custodian of the seal
of the Corporation and, pursuant to Section 45 of the By-Laws and
in other instances where the execution of documents on behalf of
the Corporation is authorized by the By-Laws or by the Board of
Directors, may affix the seal to all instruments requiring it and
attest the ensealing and the execution of such instruments.
(f) The Secretary shall have control of the stock
ledger, stock certificate book and all books containing minutes
of any meeting of the shareholders, 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 the Secretary's
duties, shall exercise the powers and duties of the Secretary at
the request or in the absence or disability of the Secretary, and
shall exercise such other powers and duties as may be prescribed
by the Board of Directors.
The Treasurer
32. (a) The Treasurer shall be responsible for the
safekeeping of the corporate funds and securities of the
Corporation, and shall maintain and keep custody of 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) The Treasurer 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.<PAGE>
(c) Pursuant to Section 45 of the By-Laws, the
Treasurer may, when authorized by the Board of Directors, affix
the seal to all instruments requiring it and attest the
ensealing and the execution of such instruments.
(d) The Treasurer shall exhibit at all reasonable
times such 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) The Treasurer shall render an account of all
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, the
Treasurer 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 the
Treasurer's office, and for the restoration to the Corporation in
case of the death, resignation, retirement or removal from office
of the Treasurer, of all books, papers, vouchers, money and other
property of whatever kind belonging to the Corporation in the
possession or under the control of the Treasurer .
(g) The Treasurer 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 the Treasurer's
duties, shall exercise the powers and duties of the Treasurer at
the request or in the absence or disability of the Treasurer, and
shall exercise such other powers and duties as may be prescribed
by the Board of Directors. If required by the Board of Directors,
any Assistant Treasurer shall give the Corporation a bond, the
premium on which shall be paid by the Corporation, similar to
that which may be required to be given by the Treasurer.
Comptroller
33. (a) The Comptroller of the Corporation shall be the
principal accounting officer of the Corporation and shall be
accountable and report directly to the Board of Directors. If
required by the Board of Directors, the Comptroller shall give
the Corporation a bond, the premium on which shall be paid by the
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 the Comptroller's office.
(b) The Comptroller 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.<PAGE>
(c) The Comptroller 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) The Comptroller shall exhibit at all reasonable
times such 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) The Comptroller 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 may be requested by the Board or by
any director of the Corporation, and shall render a full
financial report at the annual meeting of the shareholders, if
called upon to do so.
(f) The Comptroller shall receive and keep custody of
an original copy of each written contract made by or on behalf of
the Corporation.
(g) The Comptroller 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) The Comptroller 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
the Comptroller's duties, shall exercise the powers and duties of
the Comptroller at the request or in the absence or disability of
the Comptroller, 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 Comptroller shall give the
Corporation a bond, the premium on which shall be paid by the
Corporation, similar to that which may be required to be given by
the Comptroller.
Vacancies
34. If the office of any director becomes vacant for any
reason, including vacancies resulting from an increase in the
number of directors, the directors then in office, although less
than a quorum, by a majority vote, may fill such vacancy and each
person so selected shall hold office for the unexpired term in
respect of which such vacancy occurred. 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<PAGE>
unexpired term in respect of which such vacancy occurred.
Pending action by the Board of Directors at such meeting, the
Board of Directors or the Executive Committee may choose a
successor temporarily to serve as an officer of the Corporation.
Resignations
35. An 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 receipt by the Corporation, 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.<PAGE>
Duties of Officers May be Delegated
36. In case of the absence or disability of any officer of
the Corporation, or for any other reason the Board of Directors
may deem sufficient, the Board, by vote of a majority of
directors then in office, may, notwithstanding any other
provisions of the By-Laws, delegate or assign, for the time
being, the powers or duties, or any of them, of such officer to
any other officer or to any director.
Indemnification of Directors, Officers and Employees
37. (a) 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, its shareholders or otherwise, by reason of the fact
that such person 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 unless the act or
failure to act giving rise to the claim for indemnification is
finally determined by a court to have constituted willful
misconduct or recklessness. If any such person is not entitled
to indemnification in respect of a portion of any liabilities to
which such person may be subject, the Corporation shall
nonetheless indemnify such person to the maximum extent for the
remaining portion of the liabilities.
(b) 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 such person 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.
(c) 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<PAGE>
an employee benefit plan shall be deemed "fines"; and (iii)
action taken or omitted by such person with respect to an
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.
(d) 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.
(e) 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.
(f) 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
shareholders or disinterested directors or otherwise, both as to
actions in an official capacity and as to actions in any other
capacity while holding such office. The indemnification and
advancement of expenses provided by, or granted pursuant to, this
Section shall continue as to a person who has ceased to be an
officer, director, employee or agent in respect of matters
arising prior to such time, and shall inure to the benefit of the
heirs, executors and administrators of such person.
Stock of Other Corporations
38. The Board of Directors may authorize any director,
officer or other person on behalf of the Corporation to attend,
act and vote at meetings of the shareholders 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.
Certificates of Stock
39. The certificates of stock of the Corporation shall be
numbered and shall be entered in the books of the Corporation as
they are issued. They shall exhibit the holder's name and number
of shares and may include the holder's address. No fractional<PAGE>
shares of stock shall be issued. Certificates of stock shall be
signed by the 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
or a facsimile thereof. Where any certificate of stock is
countersigned by a transfer agent or registrar who is not an
officer or employee of the Corporation, the signatures of any
such President, Vice President, Secretary, Assistant Secretary,
Treasurer, or Assistant Treasurer upon such certificate may be
facsimiles, engraved or printed. In case any such officer who
has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such before such certificate
of stock is issued, it may be issued by the Corporation with the
same effect as if such officer had not ceased to be such at the
date of its issue.
Transfer of Stock
40. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by
attorney, lawfully constituted in writing, and upon surrender of
the certificate therefor.
Fixing of Record Date
41. The Board of Directors is hereby authorized to fix a
time, not exceeding fifty days preceding the date of any meeting
of shareholders 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 shareholders 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 shareholders of record at such
time shall be entitled to receive any such notice, dividend,
distribution, rights or interests.
Registered Shareholders
42. The Corporation shall be entitled to treat the holder
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
Commonwealth of Pennsylvania.
Lost Certificates
43. Any person claiming a certificate of stock to be lost
or destroyed shall make an affidavit or affirmation of that fact,
whereupon a new certificate may be issued of the same tenor and
for the same number of shares as the one alleged to be lost or
destroyed; provided, however, that the Board of Directors may<PAGE>
require, as a condition to the issuance of a new certificate, the
payment of the reasonable expenses of such issuance or the
furnishing of a bond of indemnity in such form and amount and
with such surety or sureties, or without surety, as the Board of
Directors shall determine, or both the payment of such expenses
and the furnishing of such bond, and may also require the
advertisement of such loss in such manner as the Board of
Directors may prescribe.
Inspection of Books
44. The Board of Directors may determine whether and to
what extent, and at what time and 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 shareholders), or any of them, shall be open
to the inspection of shareholders, and no shareholder 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 Commonwealth of Pennsylvania or by the By-Laws or by
resolution of the Board of Directors or of the shareholders.
Checks, Notes, Bonds and Other Instruments
45. (a) All checks or demands for money and notes of the
Corporation shall be signed by such person or persons (who may
but need not be an officer or officers of the Corporation) as the
Board of Directors may from time to time designate, either
directly or through such officers of the Corporation as shall, by
resolution of the Board of Directors, be authorized to designate
such person or persons. If authorized by the Board of Directors,
the signatures of such persons, or any of them, upon any checks
for the payment of money may be made by engraving, lithographing
or printing thereon a facsimile of such signatures, in lieu of
actual signatures, and such facsimile signatures so engraved,
lithographed or printed thereon shall have the same force and
effect as if such persons had actually signed the same.
(b) All bonds, mortgages and other instruments
requiring a seal, when required in connection with matters which
arise in the ordinary course of business or when authorized by
the Board of Directors, shall be executed on behalf of the
Corporation by the 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 President or a Vice
President or the Secretary or an Assistant Secretary or the
Treasurer or an 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,<PAGE>
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
46. All receipts for stocks, bonds or other securities by
the Corporation shall be signed by the Treasurer or an Assistant
Treasurer, or by such other person or persons as the Board of
Directors or Executive Committee shall designate.
Fiscal Year
47. The fiscal year shall begin the first day of January in
each year.
Dividends
48. (a) Dividends in the form of cash or securities, upon
the capital stock of the Corporation, to the extent permitted by
law, may be declared by the Board of Directors at any regular or
special meeting.
(b) The Board of Directors shall have power to fix and
determine, and from time to time 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 interests of the Corporation.
Notices
49. (a) Whenever under the provisions of the By-Laws
notice is required to be given to any director, officer or
shareholder, it shall not be construed to require personal
notice, but, except as otherwise specifically provided, such
notice may be given in writing, by first class or express mail or
by depositing a copy of the same in a post office, letter box or
mail chute, maintained by the United States Postal Service or
Courier Service for delivery to that person, postage prepaid,
addressed to such shareholder, officer or director, at his or her
address as the same appears on the books of the Corporation.<PAGE>
(b) A shareholder, director or officer may waive in
writing any notice required to be given to him or her by law or
by the By-Laws.
Participation in Meetings by Telephone
50. At any meeting of the Shareholders, Board of Directors
or the Executive Committee or any other committee designated by
the Board of Directors, one or more directors or shareholders may
participate in such meeting in lieu of attendance in person by
means of the conference telephone or similar communications
equipment by means of which all persons participating in the
meeting will be able to hear and speak.
Oath of Judges of Election
51. The judges of election appointed to act at any meeting
of the shareholders shall, before entering upon the discharge of
their duties, be sworn faithfully to execute the duties of judge
at such meeting with strict impartiality and according to the
best of their ability.
Amendments
52. 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
shareholders duly held, provided that the notice of such meeting
shall have included notice of such proposed amendment. The
By-Laws may also be altered or amended by the affirmative vote of
a majority of directors then in office at a meeting of the Board
of Directors, the notice of which shall have included notice of
the proposed amendment.
In the event of the adoption, amendment, or repeal of any
By-Law by the Board of Directors pursuant to this Section, there
shall be set forth in the notice of the next meeting of
shareholders for the election of directors the By-Law so adopted,
amended or repealed together with a concise statement of the
changes made. By the affirmative vote of the holders of a
majority of the capital stock represented and entitled to vote at
such meeting, the By-Laws may, without further notice, be altered
or amended by amending or repealing such action by the Board of
Directors.<PAGE>
EXHIBIT A-3
FORM OF STOCK CERTIFICATE
Incorporated under the Laws of the State of _______________
Number 1 ______ Shares
______________________________
Common Stock ______ Shares
THIS CERTIFIES THAT _______________________ is the record
holder of _______ fully paid and non-assessable Common Shares of
the Capital Stock of the above Corporation transferable on the
share register of said Corporation in Person or by duly
authorized Attorney upon surrender of this Certificate properly
endorsed or assigned.
WITNESS the Seal of the Corporation and the signatures
of its duly authorized officers.
Dated: ___________________
__________________, Secretary __________________, President<PAGE>
FOR VALUE RECEIVED, _________________________________ does
hereby sell, assign and transfer unto
______________ (______) Common Shares of the Capital Stock
represented by the within Certificate, and does hereby
irrevocably constitute and appoint _________________ Attorney to
transfer the said Stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated: _______________
_______________________________
In Presence Of:
Signature guaranteed<PAGE>
Assignment Separate From Certificate
FOR VALUE RECEIVED, _____________________________ does
hereby sell, assign and transfer unto
______________ (______) Common Shares of the Capital Stock of
___________________________ standing in its name on the books of
said Corporation represented by Certificate No. __ herewith and
does hereby irrevocably constitute and appoint _________________
Attorney to transfer the said Stock on the books of the within
named Corporation with full power of substitution in the
premises.
Dated: _______________
______________________________
In Presence Of:
Signature guaranteed<PAGE>
Exhibit F
December 6, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: GPU International, Inc.
Application on Form U-1
SEC File No. 70-8913
Gentlemen:
We have examined the Application on Form U-1, dated
September 11, 1996, under the Public Utility Holding Company Act
of 1935 (the "Act"), filed by GPU International, Inc. ("GPUI")
with the Securities and Exchange Commission (the "Commission")
and docketed in SEC File No. 70-8913, as amended by Amendment No.
1 thereto, dated October 21, 1996, and as to be amended by
Amendment No. 2 thereto, dated this date, of which this opinion
is to be a part. (The Application, as thus amended and to be
amended, is hereinafter referred to as the "Application".)
The Application contemplates, among other things, the
acquisition by GPUI of an interest in the stationary fuel cell-
based power system business (the "Business") through the
acquisition, directly or indirectly through a wholly owned
subsidiary ("Subsidiary"), of the securities of a newly
established entity (the "Enterprise") formed by a nonaffiliate
for the purpose of developing, manufacturing and marketing such
systems.
The Application also contemplates that GPUI would
provide services relating to the Business to the Enterprise,
which services would be provided at cost in accordance with Rules
90 and 91 if provided at a time when the Enterprise is a
"subsidiary company" of GPU, Inc., GPUI's parent company ("GPU").
For many years, we have participated in various
proceedings related to the issuance and sale of securities by GPU
and its subsidiaries, and we are familiar with the terms of the
outstanding securities of the corporations comprising the GPU
holding company system.<PAGE>
Securities and Exchange Commission
December 6, 1996
We have examined copies, signed, certified or otherwise
proven to our satisfaction, of the Certificate of Incorporation
and By-Laws of GPUI. In addition, we have examined such other
instruments, agreements and documents and made such further
investigation as we have deemed necessary as a basis for this
opinion.
We are members of the Bar of the State of New York and
do not purport to be expert in the laws of any jurisdiction other
than the laws of the State of New York and the Federal laws of
the United States. We have, however, reviewed the Delaware
General Corporation Law to the extent necessary to express the
opinions set forth herein.
We have assumed that (i) any Subsidiary and/or the
Enterprise will be duly formed and validly existing in accordance
with the respective laws of the jurisdiction of formation
thereof, (ii) all necessary corporate action required on the part
of GPUI and any Subsidiary and/or the Enterprise shall have been
duly taken, (iii) the execution and delivery of any security by
any Subsidiary and/or the Enterprise will not violate any
applicable law or any restriction imposed by any court or
governmental body having jurisdiction over the issuer thereof,
and (iv) with respect to any security issued by any Subsidiary
and/or the Enterprise, the issuer thereof will have received
consideration therefor at least equal to the par or stated value
(or equivalent amount) of such security.
Based upon and subject to the foregoing, and assuming
that the transactions therein proposed are carried out in
accordance with the Application, we are of the opinion that when
the Commission shall have entered an order forthwith granting the
Application,
(a) all State laws applicable to the proposed
transactions will have been complied with;
(b) GPUI will legally acquire the securities of any
Subsidiary or the Enterprise acquired by it; and
(c) the consummation of the proposed transactions
will not violate the legal rights of the holders of any
securities issued by GPU or any "associate company"
thereof, as defined in the Act.
We hereby consent to the filing of this opinion as an
exhibit to the Application and in any proceedings before the
Commission that may be held in connection therewith.
Very truly yours,
BERLACK, ISRAELS & LIBERMAN LLP
<PAGE>
