SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM U5S/A
ANNUAL REPORT
For the Year Ended December 31, 1997
Filed pursuant to the Public Utility Holding Company Act of 1935
by
GPU, INC. (File No. 30-126)
300 Madison Avenue, Morristown, New Jersey 07962-1911
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GPU, Inc. hereby amends its Annual Report on Form U5S for the year ended
December 31, 1997, in SEC File No. 30-126, by filing the following exhibits in
Item 10 thereof:
Listing of Exhibits filed by Amendment
--------------------------------------
B-45 Amended By-Laws of Penelec, dated as of May 22, 1997.
B-189 Memorandum and Articles of Association of Australian Transmission
Corporation Pty. Ltd., dated as of September 30, 1997.
B-191 Amendment to the Certificate of Incorporation of GPU International
Latin America Ltda., dated as of March 6, 1997, to change the name of
the company to GPUI Colombia Ltda.
B-192 Certificate of Incorporation of GPU Australia Holdings, Inc. dated as
of September 29, 1997.
B-193 By-Laws of GPU Australia Holdings, Inc., dated as of September 29,
1997.
B-194 Certificate of Incorporation of Austran Holdings, Inc., dated
as of September 29, 1997.
B-195 Amended and Restated Certificate of Incorporation of Austran
Holdings, Inc., dated as of October 9, 1997.
B-196 By-Laws of Austran Holdings, Inc. adopted as of September 29, 1997.
B-197 Certificate of Formation of GPU Solar, L.L.C., dated as of July 8,
1997.
B-198 Operating Agreement for GPU Solar, L.L.C., dated as of July 1, 1997.
B-199 Certificate of Incorporation of GPU Power Ireland, Inc., dated
October 14, 1997.
B-200 By-Laws of GPU Power Ireland, Inc. adopted as of October 14, 1997.
B-201 Certificate of Registration of Austran Investments Pty. Ltd. dated as
of October 15, 1997.
B-202 Memorandum and Articles of Association of Austran Investments Pty.
Ltd. dated as of October 15, 1997.
B-203 Certificate of Registration of GPU PowerNet Investments Pty. Ltd.
dated as of December 9, 1997.
B-204 Memorandum and Articles of Association of GPU PowerNet Investments
Pty. Ltd. dated as of December 8, 1997.
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Listing of Exhibits filed by Amendment (continued)
-------------------------------------
B-205 Certificate of Amendment to the Certificate of Registration of EI
Australia Services Pty. Ltd. to GPU International Australia Pty. Ltd.
dated as of October 14, 1996.
C-4 Performance Units Agreement Under the 1990 Stock Plan for Employees
of GPU and Subsidiaries - 1997 Agreement.
C-10 GPU Service, Inc. Supplemental and Excess Benefits Plan, as amended
June 5, 1997.
C-11 GPU Nuclear, Inc. Supplemental and Excess Benefits Plan, as amended
June 5, 1997.
C-12 GPU Generation, Inc. Supplemental and Excess Benefits Plan, as
amended June 5, 1997.
C-14 Deferred Remuneration Plan for Outside Directors of GPU Nuclear
Inc., as amended June 5, 1997.
C-198 Deferred Stock Unit Plan for Outside Directors of GPU, Inc., dated
as of July 1, 1997.
E-4 GPU International, Inc. Annual Report to the SEC on Form U-13-60 for
1997.
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SIGNATURE
The undersigned registered holding company has duly caused this amendment
to be signed on its behalf by the undersigned officer thereunto duly authorized
pursuant to the requirements of the Public Utility Holding Company Act of 1935.
GPU, INC.
May 13, 1998
By /s/ P. R. Chatman
--------------------
P. R. Chatman, Assistant Comptroller -
GPU Service, Inc.
Exhibit B-45
PENNSYLVANIA ELECTRIC COMPANY
BY-LAWS
(As Amended May 22, 1997)
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PENNSYLVANIA ELECTRIC COMPANY
BY-LAWS
OFFICES
1. The principal office of the corporation shall be located at 2800
Pottsville Pike, Muhlenberg Township, Pennsylvania. The corporation may also
have offices at such other places, either within or without the Commonwealth of
Pennsylvania, 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
"Pennsylvania". 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 the 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. All meetings of the shareholders shall be presided over
by the President or, in the event of his absence or disability, by any Vice
President, except when by statute, the Articles of Incorporation or any
amendment thereof, the election of a presiding officer by the shareholders
present at the meeting is required.
4. The annual meeting 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 shall elect a Board of Directors of the corporation and
transact such other business as may properly be brought before the meeting.
Notice of the time and place thereof shall
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be given by mail at least ten (10) days prior to the meeting, to each
shareholder of record entitled to vote thereat, at his address as the same shall
appear on the books of the corporation.
5. Except as otherwise provided by law or the Articles of
Incorporation, as amended, 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 stockholders entitled to vote thereat, present in person or by
proxy, shall have power, by majority vote of those present, 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 all meetings 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 dated more than eleven (11) months prior to any meeting
or election shall confer the right to vote thereat. 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, except as otherwise provided by law or the Articles of
Incorporation or any amendment thereto. 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. All elections shall be determined and
all questions decided by a plurality vote, except when by statute or the
Articles of Incorporation or any amendment thereto a larger vote of the
shareholders shall be required. Any action which may be taken at a meeting of
the shareholders or of a class of shareholders may be taken without a meeting if
a consent or consents in writing, setting forth the action so taken, shall be
signed by all of the shareholders who would be entitled to vote at a meeting for
such purpose and shall be filed with the Secretary of the corporation.
7. Nothing herein contained shall be construed to enlarge, limit or
impair the voting rights of the holders of the Preferred Stock of the
corporation, as set forth in the Articles of Incorporation of the corporation as
the same now exist or may hereafter be amended.
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8. Special meetings of the shareholders for any purpose or purposes,
unless otherwise prescribed by statute or by the Articles of Incorporation or
any amendment thereto, may be called by the President, or by a majority of the
Board of Directors or by a majority of the Executive Committee, and shall be
called by the President or the Secretary at the request in writing of one or
more shareholders who, by statute or the Articles of Incorporation or any
amendment thereto are entitled to call such meeting, upon at least ten (10)
days' written or printed notice to each shareholder of record entitled to vote
thereat, stating the place, day and hour of such meeting and the business
proposed to be transacted thereat. No business shall be transacted at any such
meeting except with respect to matters specified in the notice, provided
however, that if all the shareholders of the corporation entitled to vote shall
be present in person or by proxy any business pertaining to the affairs of the
corporation may be transacted.
DIRECTORS
9. The business and affairs of the corporation shall be managed by its
Board of Directors, or under the direction of the Board of Directors, which
shall consist of not less than four (4) nor more than ten (10) directors as
shall be fixed from time to time by a resolution adopted by the majority of the
entire Board of Directors, or by the consent of the shareholders, 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
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 the
Business Corporation Law of the Commonwealth of Pennsylvania. Each director
shall serve until the next annual meeting of shareholders and thereafter until
his successor shall have been elected and shall qualify. If all the directors
shall, severally or collectively, consent in writing to any action to be taken
by the corporation, such action shall be as valid a corporate action as though
it had been authorized at a meeting of the Board of Directors.
10. 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
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are directors or officers, or have a financial or other interest, shall be void
or voidable solely for that reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors that
authorizes the contract or transaction, or solely because his or their votes are
counted for that purpose, 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; or
(b) The material facts as to his 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 the 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 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.
MEETINGS OF THE BOARD
11. At all meetings of the Board of Directors a majority of the
directors in office 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 statute or by the Articles of Incorporation
or any amendment thereto or by these By-Laws.
12. The first meeting of the Board of Directors held next after the
annual meeting of shareholders at which directors shall have been elected, shall
be held for the purpose of organization, the election of officers and the
transaction of any other business which may come before the meeting.
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13. Regular meetings of the Board of Directors shall be held without
notice at such time and place as the Board of Directors may from time to time
determine.
14. Special meetings of the Board of Directors may be called by the
Chairman of the Board or by the President or, in the absence or disability of
the Chairman of the Board 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. The Secretary, or other officer performing his duties,
shall give notice either personally or by telephone or by telegram at least
twenty-four hours before the meeting or by mail, at least three (3) days before
the meeting. Meetings may be held at any time and place without such notice if
all the directors are present or if those not present waive notice in writing,
either before or after the meeting.
15. Any regular or special meeting may be adjourned to any other time
at the same or any other 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.
COMPENSATION OF DIRECTORS
16. Directors, as such, shall not receive any stated salary for their
services, but by resolution of the Board, a fixed sum and expenses of
attendance, if any, may be allowed for attendance at each regular and special
meeting of the Board; but nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. Members of board committees may be allowed like
compensation for attending committee meetings.
COMMITTEES
17. The Board of Directors may by vote of a majority of the whole Board
create an Executive Committee consisting of two (2) or more of their own number
to hold office for such period as the Board shall determine. The Chairman of the
Board and the President shall each be a member of the Executive Committee, and
the Chairman of the Board shall be Chairman thereof and the remaining members
shall be elected by a majority vote of the whole Board of Directors. The Board
of Directors by a majority vote of the whole Board may fill any vacancies in the
Executive
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Committee and may designate one or more alternate members who shall serve on the
Executive Committee in the absence of any regular member or members of such
committee.
Such Executive Committee shall advise with and aid the
officers of the corporation in all matters concerning its interest and the
management of its business, and shall, between meetings of the Board of
Directors, have all the power of the Board of Directors in the management of the
business and affairs of the corporation, and shall have power to authorize the
seal of the corporation to be affixed to all papers which may require it. The
taking of any action by the Executive Committee shall be conclusive evidence
that the Board of Directors was not in session at the time of such action. Any
action which may be taken at a meeting of the Executive Committee may be taken
without a meeting if a consent or consents in writing setting forth the action
so taken shall be signed by all of the members of the Committee and shall be
filed with the Secretary of the corporation.
The Executive Committee shall cause to be kept regular minutes
of its proceedings, which may be transcribed in the regular minute book of the
corporation, and all such proceedings shall be reported to the Board of
Directors at its next succeeding meeting, and shall be subject to revision or
alteration by the Board of Directors, provided that no rights of third persons
shall be affected by such revision or alteration. A majority of the Executive
Committee shall constitute a quorum at any meeting. The Executive Committee may,
from time to time, subject to the approval of the Board of Directors, 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.
From time to time the Board of Directors may appoint any other
committee or committees consisting of one or more of their own number 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 Board of Directors by a majority vote of the whole Board may fill any
vacancies on any such committee or committees so appointed and may with respect
to any such committee designate one or more alternate members who shall serve in
the absence of any regular member or members on such committee. The chief
executive officer of the corporation shall be a member ex officio of all such
committees of the Board, unless the resolution appointing a particular committee
specifically excludes such ex officio membership by the chief executive officer.
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OFFICERS
18. The officers of the corporation shall be chosen by the Board of
Directors and shall be a President, one or more Vice Presidents, a Secretary,
one or more Assistant Secretaries, a Treasurer, one or more Assistant
Treasurers, a Comptroller, and one or more Assistant Comptrollers. The Board of
Directors may at any regular or special meeting appoint from among their own
number, a Chairman of the Board of Directors.
19. The Board of Directors, at its first meeting after the election of
Directors by the shareholders, shall choose a President from among their own
number, and a Secretary, a Treasurer, a Comptroller, and such Vice Presidents,
Assistant Secretaries, Assistant Treasurers and Assistant Comptrollers as it
shall deem necessary, none of whom need be members of the Board of Directors.
Such 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 successors are chosen and qualified in their
stead. The President may not occupy any other such office. Except as above set
forth any two such offices may be occupied by the same person, but no officer
shall execute, acknowledge or verify any instrument in more than one capacity.
20. The Board of Directors may appoint such other officers and agents
as it shall deem necessary, who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined from
time to time by the Board of Directors.
21. The salary or other compensation of the officers, other than the
assistant officers, shall be fixed by the Board of Directors. The salaries or
other compensation of the assistant officers and all other employees shall, in
the absence of any action by the Board, be fixed by the President or such other
officers or executives as may be designated by the President.
22. Any officers or agents elected or appointed by the Board of
Directors may be removed at any time, with or without cause, by vote of a
majority of the whole Board of Directors.
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CHAIRMAN OF THE BOARD
23. In the event that the Board of Directors shall appoint a Chairman
of the Board of Directors as herein provided, he shall, unless otherwise
directed by the Board of Directors, be the chief executive officer of the
corporation, with authority, among other things, to sign in the name and on
behalf of the corporation any and all contracts, agreements, and other
instruments and documents pertaining to matters which arise in the normal
conduct or ordinary course of business of the corporation, shall hold office
until the next annual meeting of shareholders, shall preside at all meetings of
the Board of Directors, and shall have and exercise such powers and perform such
duties as may be assigned and conferred upon him by the Board of Directors.
PRESIDENT
24. The President, at the request or in the absence or disability of a
Chairman of the Board of Directors functioning as the chief executive officer of
the corporation, shall be the chief executive officer of the corporation. He
shall, except as otherwise provided herein or by law, preside at all meetings of
the Board of Directors, the Executive Committee and the shareholders. Subject to
the control of the Board of Directors and any Chairman of the Board of Directors
functioning as chief executive officer of the corporation, he shall have general
supervision, direction and control of the business and affairs of the
corporation. He shall have such powers and duties as are usually vested in the
office of President of a corporation, and shall perform such other and further
duties as may from time to time be assigned to him by the Board of Directors. He
may sign in the name and on behalf of the corporation any and all contracts,
agreements and other instruments and documents pertaining to matters which arise
in the normal conduct or ordinary course of business of the corporation.
VICE PRESIDENT AND VICE PRESIDENTS
25. If there be one Vice President he shall, at the request or in the
absence or disability of the President, have supervision, direction and control
of the business of the corporation and exercise the duties and functions of the
President. He shall also have such powers and perform such other duties as may
be prescribed from time to time by law, the Articles of Incorporation or any
amendment thereof, the By-Laws, the Board of Directors or the President. If
there be more than
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one Vice President, the Board of Directors shall assign to each of them the
general scope of their respective duties, subject to detailed specification
thereof made from time to time by the President, and the Board shall designate
which Vice President shall exercise the duties and functions of the President
during his absence or disability, and the Board may designate such Vice
President as the Executive Vice President. Any Vice President may sign in the
name and on behalf of the corporation contracts, agreements or other
instruments, and documents pertaining to matters which arise in the normal
conduct or ordinary course of business of the corporation, except in cases where
the signing thereof shall be expressly and exclusively delegated by the Board of
Directors or the Executive Committee to some other officer or agent of the
corporation.
SECRETARY AND ASSISTANT SECRETARIES
26. The Secretary shall attend all meetings of the Board of Directors,
the Executive Committee, and the shareholders, and shall record all votes and
the minutes of all proceedings in a book or books to be kept by him for that
purpose, and shall perform like duties for other board committees when required.
He shall give, or cause to be given, notice of a1l meetings of the shareholders,
the Board of Directors and the Executive Committee, and shall perform such other
duties as may be prescribed by the Board of Directors or President. Any records
kept by him 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. He shall be the custodian of the seal of the corporation and, when
authorized by the Board of Directors or by the President or a Vice President,
shall affix the seal to all instruments requiring it and shall attest the same
and/or the execution of such instruments as required. He shall have control of
the stock ledger, stock certificate book and other formal records and documents
relating to the corporate affairs of the corporation.
The Assistant Secretary or Assistant Secretaries shall assist
the Secretary in the performance of his duties, and shall exercise and perform
his powers and duties in his absence or disability, and shall also exercise such
powers and duties as may be conferred or required by the Board of Directors, or
by the President.
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TREASURER AND ASSISTANT TREASURERS
27. The Treasurer shall have the custody of the corporate funds and
securities, shall keep full and accurate accounts of receipts and disbursements
in books belonging to the corporation, and shall deposit all moneys and other
valuable effects in the name and to the credit of the corporation in such
depositories as may be designated by the Board of Directors.
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, and shall render to the President and directors at the regular
meetings of the Board of Directors, or whenever they may require it, a report of
cash receipts and disbursements and an account of all his transactions as
Treasurer.
He shall give the corporation a bond, if required by the Board
of Directors, in such sum and with such sureties as may be satisfactory to the
Board of Directors, 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.
He shall perform all duties generally incident to the office
of the 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.
The Assistant Treasurer or Assistant Treasurers shall assist
the Treasurer in the performance of his duties, and shall exercise and perform
his powers and duties in his absence or disability and shall also exercise and
perform such duties as may be conferred or required by the Board of Directors,
or by the President.
COMPTROLLER AND ASSISTANT COMPTROLLERS
28. The Comptroller of the corporation shall have full control of all
the books of account of the corporation and keep a true and accurate record of
all property owned by it, of its debts and its revenues and expenses and shall
keep all accounting records of the corporation, other than the records of
receipts and disbursements and those relating to the deposit or custody of money
and securities of the corporation which shall be kept by the Treasurer, and
shall also make reports to the President and
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directors (at the regular meetings of the Board of Directors or whenever they
may require them) and others of or relating to the financial condition of the
corporation.
The Assistant Comptroller or Assistant Comptrollers shall
assist the Comptroller in the performance of his duties and shall exercise and
perform his powers and duties in his absence or disability and shall also
exercise such powers and perform such duties as may be conferred or required by
the Board of Directors, or by the President.
VACANCIES
29. 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; provided, however,
that in case of any vacancy in the office of a director occurring among the
directors elected by the holders of the shares of Preferred Stock, as a class
pursuant to the Articles of Incorporation of the corporation as the same now
exist or may hereafter be amended, the remaining directors elected by the
holders of the shares of Preferred Stock, by affirmative vote of a majority
thereof, or the remaining director so elected if there be but one, may elect a
successor or successors to hold office for the unexpired term of the director or
directors whose place or places shall be vacant. Likewise in case of any vacancy
in the office of a director occurring among the directors elected by the holders
of the shares of Common Stock pursuant to the terms of Paragraph 10 of Article
6th of the Articles of Incorporation or any amendment thereto of the
corporation, the remaining directors elected by the holders of the shares of
Common Stock, by affirmative vote of a majority thereof, or the remaining
director so elected if there be but one, may elect a successor or successors to
hold office for the unexpired term of the director or directors whose place or
places shall be vacant.
If the office of any officer of the corporation shall become
vacant for any reason, the Board of Directors may choose a successor or
successors who shall hold office for the unexpired term in respect of which such
vacancy occurred.
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RESIGNATIONS
30. Any officer or any director of the corporation may resign at any
time, such resignation to be made in writing and to take effect from the time of
its receipt by the corporation, unless some time be fixed in the resignation,
and then from that time.
DUTIES OF OFFICERS MAY BE DELEGATED
31. In case of the absence of any officer of the corporation, or for
any other reason the Board of Directors may deem sufficient, the Board of
Directors may delegate, for the time being, the powers or duties, or any of
them, of such officer to any other officer.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
32. (a) A director shall not be personally liable for monetary damages
as such for any action taken, or any failure to take any action, on or after
January 27, 1987 unless the director has breached or failed to perform the
duties of his office under Section 1721 of the Pennsylvania Business Corporation
Law, as the same may be amended from time to time, 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, penalties, fines and amounts paid in settlement
actually and
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reasonably incurred by such person in connection with such proceeding unless the
act or failure to act giving rise to the claim for indemnification is finally
determined by a court to have constituted willful misconduct or recklessness.
(c) The corporation shall pay the expenses (including
attorneys' fees and disbursements) actually and reasonably incurred in defending
a civil or criminal action, suit or proceeding on behalf of any person entitled
to indemnification under subsection (b) in advance of the final disposition of
such proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the corporation, and may pay such expenses in advance on
behalf of any agent on receipt of a similar undertaking. The financial ability
of such person to make such repayment shall not be a prerequisite to the making
of an advance.
(d) For purposes of this Section: (i) the corporation shall be
deemed to have requested an officer, director, employee or agent to serve as
fiduciary with respect to an employee benefit plan where the performance by such
person of duties to the corporation also imposes duties on, or otherwise
involves services by, such person 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 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.
(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
<PAGE>
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, shaft
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 action in any 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
33. The Board of Directors shall have the right to authorize any
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 or own stock, and to exercise thereat any and all the fights and powers
incident to the ownership of such stock and to execute waivers of notice of such
meetings and calls therefor; and authority may be given to exercise the same
either on one or more designated occasions, or generally on all occasions until
revoked by the Board of Directors. In the event that the Board of Directors
shall fail to give such authority, such authority may be exercised by the
President in person or by proxy appointed by him on behalf of the corporation.
CERTIFICATES OF STOCK
34. (a) Shares of the corporation shall be represented by certificates
or, except as limited by law, uncertificated shares.
(b) 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 be in a form approved by the Board of Directors. They shall
exhibit the holder's name and number of shares and shall be signed by the
President or a Vice President and the Treasurer or an Assistant Treasurer and
the seal of the corporation shall be affixed thereto. Such certificates may, in
addition to the foregoing, be signed by a transfer agent or an assistant
transfer agent and by a registrar,
<PAGE>
who shall have been duly appointed for the purpose by the Board of Directors.
When such certificates are signed by a transfer agent or an assistant transfer
agent and by a registrar, the signature of the President, Vice President,
Treasurer and Assistant Treasurer upon any such certificates may be affixed by
engraving, lithographing or printing thereon a facsimile of such signature, in
lieu of actual signature, and such facsimile signature so engraved, lithographed
or printed thereon shall have the same force and effect, as if such officer had
actually signed the same. In case any officer who has signed, or whose facsimile
signature has been affixed to, any such certificate shall cease to be such
officer before such certificate shall have been issued by the corporation, such
certificate may nevertheless be issued, and delivered as though the person who
signed such certificate, or whose facsimile signature has been affixed thereto,
had not ceased to be such officer of the corporation at the date of the issue.
(c) Uncertificated shares may be issued upon initial issuance
of shares or upon transfer of certificated shares after surrender thereof to the
corporation. Within a reasonable time after issuance or transfer of
uncertificated shares, the corporation shall send to the registered owner the
information required to be set forth on the face of the certificate by Section
34 (b) above.
TRANSFERS OF STOCK
35. 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 RECORD DATE
36. Unless otherwise restricted by law or the Articles of Incorporation
or any amendment thereto, the Board of Directors may fix a time, not more than
ninety days prior to the date of any meeting of shareholders, or the date fixed
for the payment of any dividend or distribution, or the date for the allotment
of rights, or the date when any change or conversion or exchange of shares will
be made or go into effect, as a record date for the determination of the
shareholders entitled to notice of, or to vote at, any such meeting, or entitled
to receive payment of any such dividend or distribution, or to receive any such
allotment of rights, or to exercise the rights in respect to any such change,
conversion, or exchange of shares. In such case, only
<PAGE>
such shareholders as shall be shareholders of record on the date so fixed shall
be entitled to notice of, or to vote at, such meeting or to receive payment of
such dividend, or to receive such allotment of rights, or to exercise such
rights, as the case may be, notwithstanding any transfer of any shares on the
books of the corporation after any record date fixed, as aforesaid. Unless a
record date is fixed by the Board of Directors for the determination of
shareholders entitled to receive notice of, or vote at, a shareholders' meeting,
transferees of shares which are transferred on the books of the corporation
within ten days next preceding the date of such meeting shall not be entitled to
notice of or to vote at such meeting.
REGISTERED SHAREHOLDERS
37. 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, except as expressly otherwise provided by the statutes of
the Commonwealth of Pennsylvania.
LOST CERTIFICATES
38. 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, 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 to be sufficient to indemnify
the corporation against any claim that may be made against it on account of the
alleged loss or destruction of any such certificate or the issuance of any such
new certificate, and may also require the advertisement of such loss in such
manner as the Board of Directors may prescribe.
<PAGE>
INSPECTION OF BOOKS
39. The Board of Directors shall have power to 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 shareholders shall
have any right to inspect any account or book or document of the corporation,
except as such right may be conferred by the statutes of the Commonwealth of
Pennsylvania or by resolution of the Board of Directors or of the shareholders.
CHECKS, BONDS, DEBENTURES, NOTES AND OTHER INSTRUMENTS
40. All checks 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.
All bonds, debentures, notes and other instruments requiring a
seal shall be signed on behalf of the corporation by the President or a Vice
President and the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer. In case any officer who has signed 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 had not ceased to be such officer of the
corporation.
To the extent authorized by the Board of Directors, the
signatures of the persons and officers referred to in the two preceding
paragraphs may be made by engraving, lithographing or printing on the
instruments there referred to facsimiles 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>
RECEIPT FOR SECURITIES
41. 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
42. The fiscal year shall begin the first day of January in each year.
DIVIDENDS
43. Dividends upon the capital stock of the corporation may be declared
by the Board of Directors at any regular or special meeting, out of surplus or
net profits of the corporation legally available for such purpose.
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 shall be declared
and paid as dividends, to determine the date or dates for the declaration or
payment of dividends; and to direct and determine the use and disposition of any
surplus. Before payment of any dividend or making any distribution of surplus
there may be set aside out of the surplus of the corporation such sum or sums as
the directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interests of the
corporation.
44. Reserved
NOTICES
45. Whenever under the provisions of law or the Articles of
Incorporation or any amendment thereto or these By-Laws notice is required to be
given to any director, officer or shareholder, it shall be sufficient if given
to such person either personally or by sending a copy thereof through the mail
or by telegram, charges prepaid, to the person's address appearing on the books
of the corporation or supplied by such person to the corporation
<PAGE>
for the purpose of notice. If the notice is sent by mail or telegram, it shall
be deemed to have been given to the person entitled thereto when deposited in
the United States mail or with the telegraph office for transmission to such
person.
Whenever any written notice is required to be given under the
provisions of law or the Articles of Incorporation or any amendment thereto or
these By-Laws, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice.
JUDGES OF ELECTION
46. In advance of any meeting of the shareholders, for the election of
directors, the Board of Directors may appoint judges of election, who need not,
except as otherwise provided by statute, be shareholders, to act at such meeting
or any adjournment thereof. If judges of election be not so appointed, the
chairman of any such meeting may, and on the request of any shareholder or his
proxy shall, make such appointment at the meeting. The number of judges shall be
one or three. No person who is a candidate for office shall act as a judge. In
case any person appointed as judge fails to appear or fails or refuses to act,
the vacancy may be filled by appointment made at the meeting by the Board of
Directors in advance of the convening of the meeting, or at the meeting by the
chairman. The judge or judges so appointed shall determine the number of shares
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, the authenticity, validity and effect of proxies,
receive votes or ballots, hear and determine all challenges and questions in any
way arising in connection with the right to vote, count and tabulate all votes,
determine the result, and do such acts as may be proper to conduct the election
or vote with fairness to all shareholders. Judges of election shall perform
their duties impartially, in good faith, to the best of their ability, and as
expeditiously as is practical. If there be three judges of election, the
decision, act or certificate of a majority shall be effective in all respects as
the decision, act or certificate of all. On the request of the chairman of the
meeting, or of any shareholder or proxy for a shareholder, the judge or judges
shall make a report in writing of any challenge or question or matter determined
by such judge or judges, and execute a certificate of any fact found. Any such
report or certificate shall be prima facie evidence of the facts stated therein.
<PAGE>
PARTICIPATION IN MEETINGS BY TELEPHONE
47. 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 conference telephone or similar communications equipment, by means of
which all persons participating in the meeting can hear each other.
INAPPLICABILITY OF SECTION 910 OF THE
PENNSYLVANIA BUSINESS CORPORATION LAW
48. Effective December 23, 1983, Section 910 of the Pennsylvania
Business Corporation Law added by Pennsylvania Act No. 92 of 1983 (effective
December 23, 1983) shall not be applicable to the corporation. This By-Law 48
shall remain effective until rescinded by amendment to the Articles of
Incorporation.
PREVIOUS BY-LAWS REPEALED AND SUPERSEDED
49. All presently existing By-Laws of the corporation are hereby
repealed and superseded by these By-Laws; provided, however, that any actions
taken or rights which have accrued under prior By-Laws shall be valid and
enforceable.
AMENDMENTS
50. These By-Laws may be added to, altered, amended or repealed by the
shareholders at any annual or special meeting, or by the Board of Directors at
any regular or special meeting; provided, however, that any By-Laws made by the
Board of Directors may be altered or repealed by the shareholders.
I, Secretary of Pennsylvania Electric Company, a corporation organized
and existing under the laws of the Commonwealth of Pennsylvania, hereby
certifies that the foregoing is a true and complete copy of the By-Laws of said
Pennsylvania Electric Company duly adopted and now in force.
WITNESS my hand and seal of said corporation this day of
SECRETARY
Exhibit B-189
Corporations Law of Victoria
Memorandum
and
Articles of Association
of
Australian Transmission Corporation Pty. Ltd.
A Company Limited by Shares
Mallesons Stephen Jaques
Solicitors
Rialto
Level 28, North Tower
525 Collins Street
Melbourne Vic 3000
Telephone (03) 9643 4000
Fax (03) 9643 5999
DX 101 Melbourne
Ref NMB:RJK
<PAGE>
Corporations Law of Victoria
Memorandum of Association
of
Australian Transmission Coporation Pty. Ltd.
A Company Limited by Shares
1. The name of the company is Australian Transmission Corporation Pty. Ltd.
2. The capital of the company is $10,000,000 divided into:
2 ordinary shares of $1.00 each;
9,999,998 unclassfied shares;
3. The liability of the members of the company is limited.
The subscriber whose name and address is set out below wishes to form a company
under this memorandum of association and respectively agrees to take the number
of shares in the capital of the company set out opposite his name.
Francis Carew O'Brien Two ordinary shares of
16 Redmond Street $1.00 each
Kew Vic 3101
Occupation: Legal Practitioner
Signature: Date: 30 September 1997
Witness to above signature:
Narelle Melissa Bridges
42/202 Wattletree Road
Malvern Vic 3144
Signature Date: 30 September 1997
<PAGE>
Australian Transmission Corporation Pty. Ltd.
Index of Articles of Association
1 Preliminary 1
2 Share capital and variation of rights 3
3 Lien 6
4 Calls on shares 7
5 Transfer of shares 9
6 Transmission of shares 10
7 Forfeiture of shares 12
8 Conversion of shares into stock 14
9 Alteration of capital 15
10 General meetings 15
11 Proceedings at general meetings 18
12 The Directors 24
13 Powers and duties of Directors 28
14 Proceedings of Directors 29
15 Secretary 34
16 Common seal and official seal 35
17 Inspection of records 36
18 Dividends and reserves 36
19 Capitalisation of profits 39
20 Notices 40
21 Winding up 41
22 Indemnity 41
<PAGE>
Corporations Law of Victoria
Articles of Association
of
Australian Transmission Corporation Pty. Ltd.
A Company Limited by Shares
1 Preliminary
Definitions
1.1 The fo1lowing words have these meanings in these Articles unless
the contrary intention appears.
Alternate Director means a person appointed as alternate director
under Article 14.6;
Articles means these articles of association as amended from
time to time, and a reference to a particular article has a
corresponding meaning;
Auditor means the auditor or auditors for the time being of the
Company;
Company means the abovenamed company;
Director means a director for the time being of the Company, and
where appropriate includes an Alternate Director;
Executive Director means a person appointed as executive director
under Article 14.29;
Managing Director means a person appointed as a managing director
under Article 14.29;
Member means a person for the time being entered in the Register as
a member of the Company;
Register means the register of members of the Company to be
kept under the Corporations Law and if appropriate includes a
branch register;
1
<PAGE>
Registered Office means the registered office for the time being
of the Company;
Secretary means a person appointed by the Directors under
Article 15.1 to perform the duties of secretary of the
Company; and
State means the State or Territory in which the Company is
from time to time incorporated.
Interpretation
1.2 In these Articles:
(a) words importing any gender include all other genders;
(b) the word person includes a firm, a body corporate, an
unincorporated association or an authority;
(c) the singular includes the plural and vice versa; and
(d) a reference to a statute or code or the Corporations
Law (or to a provision of same) means the statute,
code or the Corporations Law (or provision of same)
as modified or amended and in operation for the time
being, or any statute, code or provision enacted
(whether by the State or the Commonwealth of
Australia) in its place and includes any regulation
or rule for the time being in force under the
statute, code or the Corporations Law.
1.3 Unless the contrary intention appears in these Articles,
an expression has, in a provision of these Articles that deals
with a matter dealt with by a particular provision of the Corporations
Law,the same meaning as in that provision of the Corporations Law.
1.4 Headings are inserted for convenience and do not affect the
interpretation of these Articles.
Table A not to apply
1.5 The regulations contained in Table A in Schedule 1 to the
Corporations Law do not apply to the Company.
2
<PAGE>
Proprietary company
1.6 The Company is a proprietary company and accordingly:
(a) the right to transfer shares is restricted under these
Articles;
(b) the number of Members of the Company (excluding
employees of the Company or a subsidiary and former
employees who while in the employment of the Company
or a subsidiary became and have continued to be
Members) is limited to 50 and joint holders of a
share are counted as one person;
(c) 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
prohibited; and
(d) any invitation to the public to deposit money with,
and any offer to the public to accept deposits of
money with, the Company is prohibited.
2 Share capital and variation of rights
Directors to issue shares
2.1 Without prejudice to any special rights previously conferred
on the holders of any existing shares or class of shares but
subject to the Corporations Law, or as the Company in general
meeting may when authorising any issue of shares otherwise
direct, shares in the Company are under the control of the
Directors who may allot or dispose of all or any of the same
to such persons at such times and on such terms and conditions
and having attached to them such preferred, deferred or other
special rights or such restrictions, whether with regard to
dividend, voting, return of capital or otherwise and at a
premium or at par or at a discount as the Directors think fit.
2.2 The Directors have the right to grant to any person options or
other securities with rights of conversion to shares or
pre-emptive rights to any shares for any consideration and for
any period.
3
<PAGE>
Preference shares
2.3 The Company may not issue any preference shares nor may any
issued shares be converted into preference shares unless the
rights of the holders of the preference shares with respect to
repayment of capital, participation in surplus assets and
profits, cumulative or noncumulative dividends, voting and
priority of payment of capital and dividends in relation to
other shares or other classes of preference shares are set out
in the Articles. Subject to the Corporations Law, preference
shares may, with the sanction of a resolution of the Company
in general meeting, be issued on the terms that they are, or
at the option of the Company are, liable to be redeemed.
Variation of rights
2.4 If at any time the share capital is divided into different
classes of shares, the rights attached to any class may
(unless otherwise provided by the terms of issue of the shares
of that class), whether or not the Company is being wound up,
be varied or abrogated in any way with the consent in writing
of the holders of three-quarters of the issued shares of that
class, or with the sanction of a special resolution passed at
a separate meeting of the holders of the shares of that class.
2.5 The provisions of these Articles relating to general meetings
apply so far as they are capable of application and with the
necessary changes to every separate meeting of the holders of
a class of shares except that:
(a) a quorum is constituted by two persons who, between them,
hold or represent one-third of the issued shares of the
class; and
(b) any holder of shares of the class, present in person
or by proxy, attorney or representative appointed
under Article 11.2 may demand a poll.
2.6 The rights conferred on the holders of the shares of any class
are not deemed to be varied by the creation or issue of
further shares ranking equally with the first-mentioned shares
unless otherwise:
4
<PAGE>
(a) expressly provided by the terms of issue of the
first-mentioned shares; or
(b) required by the Corporations Law.
Commission and brokerage
2.7 The Company may exercise the power to pay brokerage or
commission conferred by the Corporations Law. The rate or the
amount of the brokerage or commission paid or agreed to be
paid must be disclosed in the manner required by the
Corporations Law.
2.8 The total brokerage and commission must not exceed 10% of the
total amount payable on allotment of the shares in respect of
which the commission is paid.
2.9 The brokerage or commission may be satisfied by the payment of
cash or by the allotment of fully or partly paid shares or
other securities or partly by the payment of cash and partly
by the allotment of fully or partly paid shares or other
securities.
Recognition and disclosure of interests
2.10 Except as required by law, the Company is not bound or
compelled in any way to recognise a person as holding a share
on any trust.
2.11 The Company is not bound by or compelled in any way to
recognise (whether or not it has notice of the interest or
rights concerned) any equitable, contingent, future or partial
interest in any share or unit of a share or (except as
otherwise provided by these Articles or by law) any other
right in respect of a share except an absolute right of
ownership in the registered holder.
Right to share and option certificate
2.12 A person whose name is entered as a Member in the Register or
as an optionholder in the register of options is entitled
without payment to receive a certificate in respect of the
shares or options registered in the person's name under the
seal of the
5
<PAGE>
Company in accordance with the Corporations Law but, in
respect of shares or options held jointly by several persons,
the Company is not bound to issue more than one certificate.
2.13 Delivery of a certificate for a share to one of several joint
holders is sufficient delivery to all such holders.
Joint holders of shares
2.14 Where two or more persons are registered as the joint holders
of shares they are deemed to hold the shares as joint tenants.
3 Lien
Lien on share
3.1 The Company has a first and paramount lien on every share
(other than a fully paid share) for all money (whether
presently payable or not) called or payable at a fixed time in
respect of that share and such lien extends to all dividends,
rights and other distributions from time to time declared paid
or made in respect of that share.
3.2 The Company also has a first and paramount lien on all shares
(other than fully paid shares) registered in the name of a
Member for all money presently payable by that Member to the
Company and all money which the Company may be called on by
law to pay in respect of the shares of that Member.
3.3 The Directors may at any time exempt a share wholly or in part
from the provisions of Articles 3.1 and 3.2.
Sale under lien
3.4 Subject to Article 3.5, the Company may sell, in such manner
as the Directors think fit, any share on which the Company has
a lien as if the share was forfeited.
3.5 A share on which the Company has a lien may not be sold by the
Company unless:
6
<PAGE>
(a) a sum in respect of which the lien exists is presently
payable; and
(b) the Company has, not less than 14 days before the
date of sale, given to the registered holder for the
time being of the share or the person entitled to the
share by reason of the death or bankruptcy of the
registered holder, a notice in writing setting out,
and demanding payment of, such part of the amount in
respect of which the lien exists as is presently
payable.
Transfer on sale under lien
3.6 For the purpose of giving effect to a sale mentioned in
Article 3.4, the Company may receive the consideration (if
any) given for the share so sold and may execute a transfer of
the share sold in favour of the person to whom the share is
sold.
3.7 The Company must register the transferee as the holder of the
share comprised in any such transfer and the transferee is not
bound to see to the application of the purchase money.
3.8 The title of the transferee to the share is not affected by
any irregularity or invalidity in connection with the sale of
the share.
Proceeds of sale
3.9 The proceeds of a sale mentioned in Article 3.4 must be
applied by the Company in payment of such part of the amount
in respect of which the lien exists as is presently payable,
and the residue (if any) must (subject to any like lien for
sums not presently payable that existed on the share before
the safe) be paid to the person entitled to the share at the
date of the sale.
4 Calls on shares
Directors to make calls
7
<PAGE>
4.1 The Directors may make calls on a Member in respect of any
money unpaid on the shares of the Member (whether on account
of the nominal value of the shares or by way of premium) and
not by the terms of issue of those shares made payable at
fixed times.
4.2 The Directors may revoke or postpone a call.
Time of call
4.3 A call is deemed to be made at the time when the resolution
of the Directors authorising the call is passed.
Members' liability
4.4 On receiving at least 14 days' notice specifying the time or
times and place of payment, each Member must pay to the
Company at the time or times and place so specified the amount
called on the Member's shares.
4.5 The joint holders of a share are jointly and severally liable
to pay all calls in respect of the share.
4.6 The non-receipt of a notice of any call by, or the accidental
omission to give notice of a call to, a Member does not
invalidate the call.
Interest on default
4.7 If a sum called in respect of a share is not paid before or on
the day appointed for payment of the sum, the person from whom
the sum is due must pay interest on the sum to the time of
actual payment at the rate, not exceeding 20% per annum,
determined by the Directors, but the Directors may waive
payment of that interest wholly or in part.
Fixed instalments deemed calls
4.8 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, is deemed
for the purposes of these Articles
8
<PAGE>
to be a call duly made and payable on the date on which by the
terms of issue the sum becomes payable, and, in 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.
Differentiation between shareholders as to calls
4.9 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.
Prepayment of calls
4.10 The Directors may accept from a Member the whole or a part of
the amount unpaid on a share although no part of that amount
has been called.
4.11 The Directors may authorise payment by the Company of interest
on the whole or any part of an amount so accepted, until the
amount becomes payable, at such rate, not exceeding the
prescribed rate, as is agreed on between the Directors and the
Member paying the sum.
4.12 For the purposes of Article 4.11, the prescribed rate of
interest is:
(a) if the Company has, by resolution, fixed a rate - the rate
so fixed; and
(b) in any other case - 20% per annum.
5 Transfer of shares
Forms of instrument of transfer
5.1 Subject to these Articles, a Member may transfer all or any of
the Member's shares by instrument in writing in any usual or
common form or in any other form that the Directors approve.
5.2 An instrument of transfer referred to in Article 5.1 must be
executed by or on behalf of both the transferor and the
transferee.
9
<PAGE>
Registration procedure
5.3 The instrument of transfer must be left for registration at
the Registered Office accompanied by the certificate for the
shares to which it relates and such information as the
Directors properly require to show the right of the transferor
to make the transfer, and in that event, the Company must,
subject to the powers vested in the Directors by these
Articles, register the transferee as a shareholder.
5.4 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 and a transfer of shares does not pass the right to any
dividends declared on the shares until such registration.
Directors may decline to register
5.5 The Directors may decline to register any transfer of shares,
without being bound to give any reason whatsoever for so
doing.
6 Transmission of shares
Transmission of shares on death of holder
6.1 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 the deceased
was a sole holder, are the only persons recognised by the
Company as having any title to the deceased's 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 the deceased with other persons.
Right to registration on death or bankruptcy
6.2 Subject to the Bankruptcy Act 1966, a person becoming entitled
to a share in consequence of the death or bankruptcy of a
Member may, on such information being produced as is properly
required by the Directors,
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either elect to be registered as holder of the share or
nominate another person to be registered as the transferee of
the share. Where the surviving joint holder becomes entitled
to a share in consequence of the death of a Member the
Directors must, on satisfactory evidence of that death being
produced to them, direct the Register to be altered
accordingly.
6.3 If the person becoming entitled elects to be registered as
holder of the share under Article 6.2 the person must deliver
or send to the Company a notice in writing signed by the
person in such form as the Directors approve stating that the
person so elects.
6.4 If the person becoming entitled nominates another person to be
registered as the transferee of the share under Article 6.2
the person must execute a transfer of the share to the other
person.
6.5 All the limitations, restrictions and provisions of these
Articles relating to the right to transfer, and the
registration of transfer of, shares are applicable to any such
notice or transfer as if the death or bankruptcy of the Member
had not occurred and the notice or transfer were a transfer
signed by that Member.
Effect of transmission
6.6 If the registered holder of a share dies or becomes bankrupt,
the personal representative or the trustee of the estate of
the registered holder, as the case may be, is, on the
production of such information as is properly 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 the
registered holder had not died or become bankrupt.
6.7 If two or more persons are jointly entitled to any share in
consequence of the death of the registered holder, they are,
for the purpose of these Articles, deemed to be joint holders
of the share.
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7 Forfeiture of shares
Notice requiring payment of call
7.1 If a Member fails to pay a call or instalment of a call on the
day appointed for payment of the call or instalment, the
Directors may, at any time thereafter during such time as any
part of the call or instalment remains unpaid, serve a notice
on the Member requiring payment of so much of the call or
instalment as is unpaid, together with any interest that has
accrued and all costs and expenses that may have been incurred
by the Company by reason of such non-payment
7.2 The notice must name a further day (not earlier than the
expiration of 14 days from the date of service of the notice)
on or before which the payment required by the notice is to be
made and must state that, in the event of non-payment at or
before the time appointed, the shares in respect of which the
call was made will be liable to be forfeited.
Forfeiture for failure to comply with notice
7.3 If the requirements of a notice served under Article 7.1 are
not complied with, any share in respect of which the notice
has been given may at any time thereafter, before the payment
required by the notice has been made, be forfeited by a
resolution of the Directors to that effect.
7.4 Such a forfeiture includes all dividends declared in respect
of the forfeited shares and not actually paid before the
forfeiture.
7.5 Any share forfeited under Article 7.3 may be sold, re-allotted
or otherwise disposed of to whom and on such terms and
conditions, subject to the Corporations Law, as the Directors
think fit.
7.6 If any share is forfeited under Article 7.3 notice of the
forfeiture must be given to the Member holding the share
immediately prior to the forfeiture and an entry of forfeiture
with the date thereof must be made in the Register.
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Cancellation of forfeiture
7.7 At any time before a sale or disposition of a share, the
forfeiture of that share may be cancelled on such terms as the
Directors think fit.
Effect of forfeiture on former holder's liability
7.8 A person whose shares have been forfeited ceases to be a
Member in respect of the forfeited shares, but remains liable
to pay the Company all money that, at the date of forfeiture,
was payable by that person to the Company in respect of the
shares (including interest at the rate, not exceeding 20% per
annum, determined by the Directors from the date of forfeiture
on the money for the time being unpaid if the Directors think
fit to enforce payment of the interest and also expenses
owing), but that person's liability ceases if and when the
Company receives payment in full of all money (including
interest and expenses) so payable in respect of the shares.
Evidence of forfeiture
7.9 A statement in writing declaring that the person making the
statement is a director or a secretary of the Company, and
that a share in the Company has been duly forfeited in
accordance with the Articles on the date stated in the
statement, is prima facie evidence of the facts stated in the
statement as against all persons claiming to be entitled to
the share.
Transfer of forfeited share
7.10 The Company may receive the consideration (if any) given for a
forfeited share on any sale or disposition of the share and
may execute a transfer of the share in favour of the person to
whom the share is sold or disposed of.
7.11 On the execution of the transfer, the transferee must be
registered as the holder of the share and is not bound to see
to the application of any money paid as consideration.
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7.12 The title of the transferee to the share is not affected by
any irregularity or invalidity in connection with the
forfeiture, sale or disposal of the share.
8 Conversion of shares into stock
Company may convert shares into stock
8.1 The Company may, by resolution in general meeting, convert all
or any of its paid up shares into stock and re-convert any
stock into paid up shares of any nominal value.
Transfer of stock
8.2 Subject to Article 8.3, when shares have been converted into
stock, the provisions of these Articles relating to the
transfer of shares apply, so far as they are capable of
application, to the transfer of the stock or of any part of
the stock.
8.3 The Directors may fix the minimum amount of stock transferable
and restrict or forbid the transfer of fractions of that
minimum, but the minimum must not exceed the aggregate of the
nominal values of the shares from which the stock arose.
Stockholders' rights
8.4 The holders of stock have, according to the amount of the
stock held by them, the same rights, privileges and advantages
as regards dividends, voting at meetings of the Company and
other matters as they would have if they held the shares from
which the stock arose.
8.5 No privilege or advantage (except participation in the
dividends and profits of the Company and in the property of
the Company on winding up) is conferred by any amount of stock
that would not, if existing in shares, have conferred that
privilege or advantage.
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Application of Articles to stock
8.6 The provisions of these Articles that are applicable to paid
up shares apply to stock, and references in those provisions
to share and Member include references to stock and
stockholder respectively.
9 Alteration of capital
Company's power to alter capital
9.1 The Company in general meeting may by resolution:
(a) increase its authorised share capital by the creation
of new shares of such amount as is specified in the
resolution;
(b) consolidate and divide all or any of its authorised
share capital into shares of a larger amount than its
existing shares;
(c) subdivide all or any of its shares into shares of a
smaller amount than its existing shares but so that
in the subdivision the proportion between the amount
paid and the amount (if any) unpaid on each such
share of a smaller amount is the same as it was in
the case of the share from which the share of a
smaller amount is derived; and
(d) cancel shares that, at the date of the passing of the
resolution, have not been taken or agreed to be taken
by any person or have been forfeited and reduce its
authorised share capital by the amount of the shares
so cancelled.
Reduction of capital
9.2 Subject to the Corporations Law, the Company in general
meeting may, by special resolution, reduce its share capital,
any capital redemption reserve fund or any share premium
account.
10 General meetings
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Annual general meeting
10.1 Annual general meetings of the Company are to be held in
accordance with the Corporations Law.
General meeting
10.2 The Directors may convene a general meeting of the Company
whenever they think fit.
Notice of general meeting
10.3 Subject to the provisions of the Corporations Law relating to
special resolutions and agreements for shorter notice, at
least 14 days' notice (exclusive of the day on which the
notice is served or deemed to be served and of the day for
which notice is given) specifying the place, day and the hour
of the meeting and, in the case of special business, the
general nature of that business, must be given to such persons
as are entitled to receive notices from the Company.
The non-receipt of notice of a general meeting by, or the
accidental omission to give notice of a general meeting to, a
person entitled to receive notice does not invalidate any
resolution passed at the general meeting.
Special business of general meeting
10.4 All business that is transacted at a general meeting is
special with the exception at an annual general meeting of the
declaration of a dividend the consideration of the accounts
and the reports of the Directors and the Auditor, the
appointment of the Auditor and the election of Directors.
Requisitioned meeting
10.5 The Directors must, on the written requisition of:
(a) not less than 100 Members holding shares in the
Company on which there has been paid up an average
sum, per Member, of not less than $200; or
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(b) a Member who is entitled or Members who are together
entitled, to not less than 5% of the total voting
rights of all Members having at the date of the
deposit of the requisition a right to vote at general
meetings;
immediately convene a general meeting of the Company to be
held as soon as practicable but, in any case, not later than
two months after the deposit of the requisition.
Objects of requisitioned meeting
10.6 The requisition for a general meeting must state the objects
of the meeting and must be signed by the requisitionists and
deposited at the Registered Office, and may consist of several
documents in like form each signed by one or more of the
requisitionists.
Convening requisitioned meeting
10.7 If the Directors do not, within 21 days after the deposit of
the requisition, proceed to convene a general meeting the
requisitionists or any of them representing more than one-half
of the total voting rights of all of them may themselves, in
the same manner as nearly as possible as that in which
meetings are to be convened by the Directors, convene a
meeting, but a meeting so convened may not be held after the
expiration of three months from the date of the deposit of the
requisition.
Expenses of requisitioned meeting
10.8 Any reasonable expenses incurred by the requisitionists by
reason of the failure of the Directors to convene a general
meeting must be paid to the requisitionists by the Company and
any sum so paid must be retained by the Company out of any
sums due or to become due from the Company by way of fees or
other remuneration in respect of their services to such of the
Directors as were in default.
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Postponement or cancellation of meeting
10.9 The Directors may postpone or cancel any general meeting
whenever they think fit (other than a meeting convened as a
result of a requisition under Article 10.5 or by
requisitionists under Article 10.7).
11 Proceedings at general meetings
Representation of Member
11.1 Any Member may be represented at any meeting of the Company
by a proxy or attorney.
11.2 If a body corporate is a Member it May also, by resolution of
its directors or other governing body, authorise such person
as it thinks fit to act as its representative either at a
particular general meeting or at all general meetings of the
Company or of any class of Members.
11.3 A person authorised under Article 11.2 is, in accordance with
that authority and until it is revoked by the body corporate,
entitled to exercise the same powers on behalf of the body
corporate as the body corporate could exercise if it were a
natural person who was a Member.
11.4 Unless the contrary intention appears, a reference to a Member
in the succeeding provisions of this Part 11 means a Member, a
proxy or attorney of a Member or a person appointed under
Article 11.2 to represent a body corporate which is a Member.
Quorum
11.5 No business may be transacted at any general meeting unless a
quorum is present comprising two Members present in person or
by proxy, attorney or representative appointed under Article
11.2 and entitled to vote at the meeting. If a quorum is
present at the beginning of a meeting it is deemed present
throughout the meeting unless the chairman of the meeting
otherwise declares, on the chairman's own motion or at the
instance of a Member, proxy, attorney or representative
appointed under Article 11.2.
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Failure to achieve quorum
11.6 If a meeting is convened on the requisition of Members and a
quorum is not present within half an hour from the time
appointed for the meeting, the meeting must be dissolved.
11.7 If a meeting is convened in any other case and a quorum is not
present within half an hour from the time appointed for the
meeting:
(a) the meeting must be adjourned to such day, time and
place as the Directors determine or if no
determination is made by them to the same day in the
next week at the same time and place; and
(b) if at the adjourned meeting a quorum is not present
within half an hour from the time appointed for the
meeting the meetingo must be dissolved.
Appointment and powers of chairman of general meeting
11.8 If the Directors have elected one of their number as chairman
of their meetings, that person must preside as chairman at
every general meeting.
11.9 If a general meeting is held and:
(a) a chairman has not been elected as provided by Article
11.8; or
(b) the chairman is not present within 15 minutes after
the time appointed for the holding of the meeting or
is unable or unwilling to act,
then the deputy chairman elected under Article 14.16 (if any)
must act as chairman of the meeting. If there is no such
person or that person is absent or unable or unwilling to act,
the Directors present must elect one of their number to be
chairman of the meeting, or, if no Director is present or if
all Directors present decline to take the chair, the Members
present must elect one of their number to be chairman of the
meeting.
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Adjournment of general meeting
11.10 The chairman may, with the consent of any meeting at which a
quorum is present, and must if so directed by the meeting,
adjourn the meeting from day to day, time to time and from
place to place, but no business may be transacted at any
adjourned meeting other than the business left unfinished at
the meeting from which the adjournment took place.
11.11 When a meeting is adjourned for 3O days or more, notice of
the adjourned meeting must be given as in the case of an
original meeting.
11.12 Except as provided by Article 11.11, it is not necessary to
give any notice of an adjournment or of the business to be
transacted at any adjourned meeting.
Voting at general meeting
11.13 At any general meeting a resolution put to the vote of the
meeting must 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:
(a) by the chairman;
(b) by not less than five Members having the right to vote
at the meeting;
(c) by a Member or Members present who are together
entitled to not less than 10% of the total voting
rights of all the Members having the right to vote at
the meeting; or
(d) by a Member or Members present and 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 10% of the total
sum paid up on all the shares conferring that right.
Unless a poll is properly demanded, a declaration by the
chairman that a resolution has on a show of hands been
carried or carried unanimously, or by a particular majority,
or lost, and an entry to that
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effect in the book containing the minutes of the proceedings
of the Company, is conclusive evidence of the fact without
proof of the number or proportion of the votes recorded in
favour of or against the resolution.
Questions decided by majority
11.14 Subject to the requirements of the Corporations Law in
relation to special resolutions, a resolution is taken to be
carried if the proportion that the number of votes in favour
of the resolution bears to the total number of votes on the
resolution exceeds one half.
Poll
11.15 If a poll is properly demanded, it must be taken in such
manner and (subject to Article 11.16) either at once or
after an interval or adjournment or otherwise as the
chairman directs, and the result of the poll is the
resolution of the meeting at which the poll was demanded.
11.16 A poll demanded on the election of a chairman or on a
question of adjournment must be taken immediately.
11.17 The demand for a poll may be withdrawn.
Equality of votes
11.18 If there is an equality of votes, whether on a show of hands
or on a poll, the chairman of the meeting is not entitled to
a casting vote in addition to any votes to which the
chairman is entitled as a Member or proxy or attorney or
representative of a Member.
Entitlement to vote
11.19 Subject to any rights or restrictions for the time being
attached to any class or classes of shares and to these
Articles:
(a) on a show of hands every person present who is a
Member or a proxy, attorney or representative of a
Member has one vote; and
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(b) on a poll every person present who is a Member or
proxy, attorney or representative of a Member has one
vote for each share that the person holds or
represents (as the case may be).
Joint shareholders' vote
11.20 In the case of joint holders of a share in the Company the
vote of the senior who tenders a vote, whether in person or
by proxy, attorney or representative, must be accepted to
the exclusion of the votes of the other joint holders and,
for this purpose, seniority is determined by the order in
which the names stand in the Register.
Vote of shareholder of unsound mind
11.21 If a Member is of unsound mind or is a person whose person
or estate is liable to be dealt with in any way under the
law relating to mental health then the Member's committee or
trustee or such other person as properly has the management
of the Member's estate may exercise any rights of the Member
in relation to a general meeting as if the committee,
trustee or other person were the Member.
Effect of unpaid call
11.22 A Member is not entitled to vote at a general meeting unless
all calls and other sums presently payable by the Member in
respect of shares in the Company have been paid.
Objection to voting qualification
11.23 An objection may be raised to the qualification of a voter
only at the meeting or adjourned meeting at which the vote
objected to is given or tendered.
11.24 Any such objection must be referred to the chairman of the
meeting, whose decision is final.
11.25 A vote not disallowed under such an objection is valid for all
purposes.
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Appointment of proxy
11.26 An instrument appointing a proxy must be in writing under
the hand of the appointor or of the appointor's attorney
duly authorised in writing or, if the appointor is a
corporation, either under seal or under the hand of an
officer or attorney duly authorised. A proxy need not be a
Member.
11.27 An instrument appointing a proxy may specify the manner in
which the proxy is to vote in respect of a particular
resolution and, if an instrument of proxy so provides, the
proxy is not entitled to vote on the resolution except as
specified in the instrument.
11.28 An instrument appointing a proxy is deemed to confer
authority to demand or join in demanding a poll.
11.29 An instrument appointing a proxy must be in the form
approved by the Directors from time to time.
Deposit of proxy and other instruments
11.30 An instrument appointing a proxy may not be treated as valid
unless the instrument, and the power of attorney or other
authority (if any) under which the instrument is signed or a
copy of that power or authority certified as a true copy by
statutory declaration is or are received by the Company not
less than 48 hours before the time for holding the meeting
or adjourned meeting at which the person named in the
instrument proposes to vote at the Registered Office or at
such other place as is specified for that purpose in the
notice convening the meeting.
Validity of vote in certain circumstances
11.31 A vote given in accordance with the terms of an instrument
of proxy or of a power of attorney is valid notwithstanding
the previous death or unsoundness of mind of the principal,
the revocation of the instrument (or of the authority under
which the instrument was executed) or of the power, or the
transfer of the share in respect of which the instrument or
power is given, if no intimation in
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writing of the death, unsoundness of mind, revocation or
transfer has been received by the Company at its Registered
Office before the commencement of the meeting or adjourned
meeting at which the instrument is used or the power is
exercised.
Director entitled to notice of meeting
11.32 A Director is entitled to receive notice of and to attend
all general meetings and all separate general meetings of
the holders of any class of shares in the Company and is
entitled to speak at those meetings.
Resolution in writing
11.33 Subject to the provisions of the Corporations Law, a
resolution in writing signed by all the Members is as valid
and effectual as if it had been passed at a general meeting
of the Company duly convened and held at the time at which
the written resolution was last signed by a Member. Any such
resolution may consist of several documents in like form,
each signed by one or more Members.
12 The Directors
Number of Directors
12.1 The number of Directors must not be less than one. The names
of the first Directors will be determined in writing by the
subscriber to the memorandum of association of the Company and
those Directors will continue in office subject to these
Articles. The Company in general meeting may, by resolution,
increase or reduce the number of Directors.
Share qualification of Directors
12.2 A Director is not required to hold any share in the Company.
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Appointment of Director
12.3 The Company in general meeting may by resolution and the
Directors may at any time appoint any person to be a Director,
either to fill a casual vacancy or as an addition to the
existing Directors, but so that the total number of Directors
does not at any time exceed the number determined in
accordance with Article 12.1.
Removal of Director
12.4 The Company in general meeting may by resolution remove any
Director from office and may by resolution appoint another
person in that Director's stead.
Remuneration of Directors
12.5 The Directors may be paid such remuneration as is determined
from time to time by the Company in general meeting. That
remuneration is deemed to accrue from day to day. A Director
who retires, and is not reappointed in accordance with these
Articles, may be paid a retirement benefit in recognition of
past services in the amount determined by the Directors, but
not exceeding the amount permitted by the Corporations Law.
12.6 The Directors may also be paid all travelling and other
expenses properly incurred by them in attending, participating
in 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 business of the Company.
Director's interests
12.7 No Director is disqualified by the Director's office and the
fiduciary relationship established by it from holding any
office or place of profit (other than that of Auditor) under
the Company. Any Director may (subject to the Corporations
Law):
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(a) be or become a director of or otherwise hold office
or a place of profit in any other company promoted by
the Company or in which the Company may be interested
as vendor, shareholder or otherwise;
(b) contract or make any arrangement with the Company
whether as vendor, purchaser, broker, solicitor or
accountant or other professional person or otherwise
and any contract or arrangement entered or to be
entered into by or on behalf of the Company in which
any Director is in any way interested is not avoided
for that reason; and
(c) participate in any association, institution, fund,
trust or scheme for past or present employees or
Directors of the Company, a related body corporate or
any of their respective predecessors in business or
their dependents or persons connected with them.
12.8 Any Director who:
(a) holds any office or place of profit under the Company;
(b) holds any office or place of profit referred to in
Article 12.7(a);
(c) is involved in a contract or arrangement referred to in
Article 12.7(b); or
(d) participates in an association or otherwise under Article
12.7(c),
is not by reason only of any of those facts or any interest
resulting from it or the fiduciary relationship established by
it liable to account to the Company for any remuneration or
other benefits accruing from it.
12.9 Each Director must disclose that Director's interests to the
Company in accordance with the Corporations Law and the
Secretary must record any such declaration in the minutes of
the relevant meeting.
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12.10 A Director may only vote in respect of any contract or
proposed contract or arrangement in which the Director has a
material interest if the Director has first disclosed the
interest to the Directors in accordance with the
Corporations Law and if the Director is not permitted to
vote under this Article but does so vote then that vote may
not be counted. Directors may vote in respect of a contract
for insurance of the company or its officers against a
liability incurred by officers as officers of the Company or
a related body corporate.
12.11 The restrictions contained in Article 12.10 may at any time
or times be suspended or relaxed to any extent and either
prospectively or retrospectively by resolution of the
Company in general meeting.
12.12 A Director or a Director's firm may act in a professional
capacity (other than as Auditor) for the Company and a
Director or a Director's firm is entitled to remuneration
for professional services as if the relevant Director was
not a Director.
12.13 A Director may, notwithstanding the Director's interest, and
whether or not the Director is entitled to vote or does
vote, participate in the execution of any instrument by or
on behalf of the Company and whether through signing or
sealing the same or otherwise.
Vacation of office of Director
12.14 In addition to the circumstances in which the office of a
Director becomes vacant under the Corporations Law, the
office of a Director becomes vacant if the Director:
(a) becomes of unsound mind or a person whose person or
estate is liable to be dealt with in any way under
the law relating to mental health;
(b) resigns from the office by notice in writing to the
Company; or
(c) is absent without the consent of the remaining
Directors from meetings of the Directors held during
a period of six months.
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13 Powers and duties of Directors
Directors to manage Company
13.1 Subject to the Corporations Law and to any other provision of
these Articles the business of the Company is managed by the
Directors, who may exercise all such powers of the Company as
are not, by the Corporations Law or by these Articles,
required to be exercised by the Company in general meeting.
13.2 Without limiting the generality of Article 13.1, the Directors
may exercise all the powers of the Company to borrow or raise
money, to charge any property or business of the Company or
all or any of its uncalled capital and to issue debentures or
give any other security for a debt, liability or obligation of
the Company or of any other person.
Appointment of attorney
13.3 The Directors may, by power of attorney, appoint any person or
persons to be the attorney or attorneys of the Company for
such purposes, with such powers, authorities and discretions
(being powers, authorities and discretions vested in or
exercisable by the Directors), and for such period and subject
to such conditions as they think fit.
13.4 Any such power of attorney may contain such provisions for the
protection and convenience of persons dealing, with the
attorney as the Directors think fit and may also authorise the
attorney to delegate all or any of the powers, authorities and
discretions vested in the attorney.
Minutes
13.5 The Directors must cause minutes to be made:
(a) of the names of the Directors present at or involved in
all general meetings and all meetings of the Directors;
and
(b) of all proceedings of general meetings and of meetings
of Directors,
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and cause those minutes to be entered, within one month after
the relevant meeting is held, in the minute book.
13.6 The minutes referred to in Article 13.5 must be signed by the
chairman of the meeting at which the proceedings took place or
by the chairman of the next succeeding, meeting.
Execution of Company cheques etc
13.7 All cheques, promissory notes, bankers' drafts, bills of
exchange and other negotiable instruments, and all receipts
for money paid to the Company, must be signed, drawn,
accepted, endorsed or otherwise executed, as the case may be,
in such manner and by such persons as the Directors determine
from time to time.
14 Proceedings of Directors
Directors' meetings
14.1 The Directors may meet together for the despatch of business
and adjourn and otherwise regulate their meetings as they
think fit.
14.2 A Director may at any time, and the Secretary must on the
requisition of a Director, convene a meeting of the Directors.
Questions decided by majority
14.3 Subject to these Articles, questions arising at a meeting of
Directors are to be decided by a majority of votes of
Directors involved and voting and any such decision is for all
purposes deemed a decision of the Directors.
14.4 An Alternate Director involved in any meeting of Directors has
one vote for each Director for which that person is an
Alternate Director and if that person is a Director also has
one vote as a Director.
14.5 In the event of an equality of votes the chairman of the meeting
does not have a casting vote.
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Alternate Directors
14.6 A Director may appoint a person (whether a Member of the
Company or not) to be an Alternate Director in the Director's
place during such period as the Director thinks fit.
14.7 An Alternate Director is entitled to notice of all meetings of
the Directors and, if the appointor is not involved in such a
meeting, is entitled to participate and vote in the
appointor's stead.
14.8 An Alternate Director may exercise any powers that the
appointor may exercise and in the exercise of any such power
the Alternate Director is an officer of the Company and is not
deemed an agent of the appointor.
14.9 An Alternate Director is not required to hold any share in the
Company.
14.10 An Alternate Director is subject in all respects to the
conditions attaching to the Directors generally except that
an Alternate Director is not entitled to any remuneration
under Article 12.5 otherwise than from the Alternate
Director's appointor.
14.11 The appointment of an Alternate Director may be terminated
at any time by the appointor notwithstanding that the period
of the appointment of the Alternate Director has not
expired, and terminates in any event if the appointor
vacates office as a Director.
14.12 An appointment, or the termination of an appointment, of an
Alternate Director must be effected by a notice in writing
signed by the Director who makes or made the appointment and
served on the Company.
14.13 The notice of appointment or termination of appointment of
an Alternate Director may be served on the Company by
leaving it at the Registered Office or by forwarding it by
facsimile transmission to the Registered Office and in the
case of a facsimile transmission, the appearance at the end
of the message of the name of the Director appointing or
terminating the appointment is sufficient evidence that the
Director has signed the notice.
30
<PAGE>
Quorum for Directors' meetings
14.14 At a meeting of Directors, the number of Directors whose
involvement is necessary to constitute a quorum is two,
unless the Company has only one director, or such greater
number as is determined by the Directors from time to time.
Notwithstanding Article 12.10, a Director who has a material
interest in any contract or proposed contract or arrangement
may be counted in the quorum involved in any Directors'
meeting at which such contract, proposed contract or
arrangement is considered.
Remaining Directors may act
14.15 In the event of a vacancy or vacancies in the office of a
Director or offices of Directors, the remaining Director or
Directors may act but, if the number of remaining Directors
is not sufficient to constitute a quorum at a meeting of
Directors, they may act only for the purpose of:
(a) increasing the number of Director's to a number
sufficient to constitute such a quorum; or
(b) convening a general meeting of the Company.
Chairman of Directors
14.16 The Directors must elect one of their number as chairman of
their meetings and may determine the period for which the
person elected as chairman is to hold office. The Directors
may also elect one of their number as deputy-chairman of
their meetings and may determine the period for which the
person elected as deputy-chairman is to hold office.
14.17 When a Directors' meeting is held and:
(a) a chairman has not been elected as provided by Article
14.16; or
(b) the chairman is not present within ten minutes after
the time appointed for the holding of the meeting or
is unable or unwilling to act,
31
<PAGE>
the deputy-chairman (if any) must act as chairman of the
meeting. If there is no such person or that person is absent
or unable or unwilling to act, the Directors involved must
elect one of their number to be a chairman of the meeting.
Directors' committees
14.18 The Directors may delegate any of their powers, other than
powers required by law to be dealt with by the directors as
a board, to a committee or committees consisting of at least
one of their number and such other persons as they think
fit.
14.19 A committee to which any powers have been so delegated must
exercise the powers delegated in accordance with any
directions of the Directors and a power so exercised is
deemed to have been exercised by the Directors.
14.20 The members of such a committee may elect one of their
number as chairman of their meetings.
14.21 If such a meeting is held and:
(a) a chairman has not been elected as provided by
Article 14.20; or
(b) the chairman is not present within ten minutes after
the time appointed for the holding of the meeting or
is unable or unwilling to act,
the members involved may elect one of their number to be
chairman of the meeting.
14.22 A committee may meet and adjourn as it thinks proper.
14.23 Questions arising at a meeting of a committee are to be
determined by majority of votes of the members involved and
voting.
14.24 In the event of there being an equality of votes, the
chairman, in addition to the chairman's deliberative vote,
has a casting vote.
32
<PAGE>
Written resolution by Directors
14.25 A resolution in writing signed by all the Directors who are
eligible to vote on the resolution is as valid and effectual
as if it had been passed at a meeting of the Directors held
at the time when the written resolution was last signed by
an eligible Director. Any such resolution may consist of
several documents in like form, each signed by one or more
Directors.
Directors' meetings defined
14.26 The Directors may conduct meetings without Directors being
in the physical presence of other Directors provided that
all the Directors involved in the meeting are able
simultaneously to hear each other and to participate in
discussion.
14.27 Article 14.26 applies to meetings of Directors' committees
as if all members were Directors.
Validity of acts of Directors
14.28 All acts done by any meeting of the Directors or of a
committee of Directors or by any person acting as a Director
are, notwithstanding that it is afterwards discovered that
there was some defect in the appointment of a person to be a
Director or a member of the committee, or to act as a
Director, or that a person so appointed was disqualified, as
valid as if the person had been duly appointed and was
qualified to be a Director or to be a member of the
committee.
Appointment of Managing and Executive Directors
14.29 The Directors may from time to time appoint one or more of
their number to the office of Managing Director or Executive
Director for such period and on such terms as they think
fit, and, subject to the terms of any agreement entered into
in a particular case, may revoke any such appointment.
33
<PAGE>
Remuneration of Managing and Executive Directors
14.30 A Managing Director or Executive Director may, subject to
the terms of any agreement entered into in a particular
case, receive such remuneration (whether by way of salary,
commission or participation in profits, or partly in one way
and partly in another) as the Directors determine.
Powers of Managing and Executive Directors
14.31 The Directors may, on such terms and conditions and with
such restrictions as they think fit, confer on a Managing
Director or an Executive Director any of the powers
exercisable by them
14.32 Any powers so conferred may be concurrent with, or be to the
exclusion of, the powers of the Directors.
14.33 The Directors may at any time withdraw or vary any of the
powers so conferred on a Managing Director or an Executive
Director.
15 Secretary
Appointment of Secretary
15.1 There must be at least one Secretary of the Company who may be
appointed by the Directors for such term, at such remuneration
and on such conditions as they think fit.
Suspension and removal of Secretary
15.2 The Directors have power to suspend or remove a Secretary.
Powers and duties of Secretary
15.3 The Directors may vest in a Secretary such powers, duties and
authorities as they may from time to time determine and a
Secretary must exercise all such powers and authorities
subject at all times to the control of the Directors.
34
<PAGE>
Secretary to attend meetings
15.4 A Secretary is entitled to participate in all meetings of the
Directors and all general meetings of the Company and may be
heard on any matter.
16 Common seal and official seal
Custody of common seal
16.1 The Directors must provide for the safe custody of the
common seal.
Use of common seal
16.2 The common seal may be used only by the authority of the
Directors, or of a committee of the Directors authorised by
the Directors to authorise the use of the common seal, and
every document to which the common seal is affixed must be
signed by a Director and be countersigned by another Director,
a Secretary or another person appointed by the Directors to
countersign that document or a class of documents in which
that document is included.
16.2A The sole director, if only one person is appointed to the
office of director and that person is also the sole secretary
of the Company, may be the sole signatory to documents to
which the common seal is affixed.
Use of official seals
16.3 The Company may have for use outside the State in place of the
common seal one or more official seals, each of which must be
a facsimile of the common seal with the addition on its face
of the name of every place where it is to be used.
16.4 The Company may by writing under its common seal empower a
person in a place either generally or in respect of a
specified matter to affix its official seal for that place to
any instrument to which the Company is a party.
35
<PAGE>
17 Inspection of records
Inspection by Members
17.1 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 to the inspection of Members other than
Directors, and a Member other than a Director does not have
the right to inspect any document of the Company except as
provided by law or authorised by the Directors or by the
Company in general meeting.
18 Dividends and reserves
Declaration of final dividend
18.1 Subject to the rights of persons (if any) entitled to shares
with special rights to dividend, the Directors may declare a
final dividend out of profits in accordance with the
Corporations Law and may authorise the payment or crediting by
the Company to the Members of such a dividend.
Directors may authorise interim dividend
18.2 The Directors may authorise the payment or crediting by the
Company to the Members of such interim dividends as appear to
the Directors to be justified by the profits of the Company.
No interest on dividends
18.3 Interest may not be paid by the Company in respect of any
dividend, whether final or interim.
Reserves and profits carried forward
18.4 The Directors may, before declaring any dividend, set aside
out of the profits of the Company such sums as they think
proper as reserves, to be applied, at the
36
<PAGE>
discretion of the Directors, for any purpose for which the
profits of the Company may be properly applied.
18.5 Pending any such application, the reserves may, at the
discretion of the Directors, be used in the business of the
Company or be invested in such investments as the Directors
think fit.
18.6 The Directors may carry forward so much of the profits
remaining as they consider ought not to be distributed as
dividends without transferring those profits to a reserve.
Calculation and apportionment of dividends
18.7 Subject to the rights of persons (if any) entitled to shares
with special rights to dividend and to the terms of any issue
of shares to the contrary all dividends are to be declared and
paid according to the amounts paid or credited as paid on the
shares in respect of which the dividend is paid, and are to 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.
18.8 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 on the
share for the purposes of Article 18.7.
Deductions from dividends
18.9 The Directors may deduct from any dividend payable to a Member
all sums of money (if any) presently payable by that Member to
the Company on account of calls or otherwise in relation to
shares in the Company.
Distribution of specific assets
18.10 The Directors, when paying or declaring a dividend, may
direct payment of a dividend wholly or partly by the
distribution of specific assets, including paid up shares
in, or debentures of, any other corporation.
37
<PAGE>
18.11 If a difficulty arises in regard to such a distribution, the
Directors may settle the matter as they consider expedient
and fix the value for distribution of the specific assets or
any part of those assets and may determine that cash
payments will be made to any Members on the basis of the
value so fixed in order to adjust the rights of all parties,
and may vest any such specific assets in trustees as the
Directors consider expedient. If a distribution of specific
assets to a particular Member or Members is illegal or, in
the Directors' opinion, impracticable then the Directors may
make a cash payment to that Member or Members on the basis
of the cash amount of the dividend instead of the
distribution of specific assets.
Payment by cheque and receipts from joint holders
18.12 Any dividend, interest or other money payable in cash in
respect of shares may be paid by cheque sent through the
post directed:
(a) to the address of the holder as shown in the Register
or, in the case of joint holders, to the address
shown in the Register as the address of the joint
holder first named in the Register; or
(b) to such other address as the holder or joint holders in
writing directs or direct.
18.13 Any one of two or more joint holders may give effectual
receipts for any dividends, interest or other money payable
in respect of the shares held by them as joint holders.
Unclaimed dividends
18.14 All dividends declared but unclaimed may be invested by the
Directors as they think fit for the benefit of the Company
until claimed or until required to be dealt with in
accordance with any law relating to unclaimed moneys.
38
<PAGE>
19 Capitalisation of profits
Capitalisation of reserves and profits
19.1 The Directors may resolve that it is desirable to capitalise
any sum, being the whole or a 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 that the sum is applied, in any
of the ways mentioned in Article 19.2, for the benefit of
Members in the proportions to which those Members would have
been entitled in a distribution of that sum by way of
dividend.
19.2 The ways in which a sum may be applied for the benefit of
Members under Article 19.1 are:
(a) in paying up any amounts unpaid on shares 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).
19.3 The Directors may do all things necessary to give effect to
the resolution and, in particular, to the extent necessary to
adjust the rights of the Members among themselves, may:
(a) issue fractional certificates or make cash payments
in cases where shares or debentures become issuable
in fractions; and
(b) authoress any person to make, on behalf of all or any
of the Members entitled to any further shares or
debentures on the capitalisation, an agreement with
the Company providing for the issue to them, credited
as fully paid up, of any such further shares or
debentures or for the payment up by the Company on
their behalf of the amounts or any part of the
amounts remaining unpaid on their existing shares by
the application of their respective proportions of
the sum resolved to be capitalised, and any such
agreement is effective and binding on all the Members
concerned.
39
<PAGE>
20 Notices
Service of notices
20.1 A notice may be given by the Company to any Member or other
person receiving notice under these Articles either by serving
it on the person personally or by sending it by post or
facsimile transmission to the person at their address as shown
in the Register or the address supplied by the person to the
Company for the giving of notices to the person.
20.2 If a notice is sent by post, service of the notice is deemed
to be effected by properly addressing, prepaying, and posting
a letter containing the notice, and the notice is deemed to
have been served on the day after the date of its posting.
20.3 If a notice is sent by facsimile transmission, service of the
notice is deemed to be effected by properly addressing the
facsimile transmission and transmitting same and to have been
served on the day following its despatch.
20.4 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 in
the Register in respect of the share.
20.5 Every person who by operation of law, transfer or other means
whatsoever becomes entitled to any share is absolutely bound
by every notice given in accordance with this Article to the
person from whom that person derives title prior to
registration of that person's title in the Register.
Persons entitled to notice of general meeting
20.6 Notice of every general meeting must be given in a manner
authorised by Article 20.1 and in
accordance with the Corporations Law to:
(a) every Member;
(b) every Director and Alternate Director; and
(c) the Auditor.
40
<PAGE>
20.7 No other person is entitled to receive notices of general
meetings.
21 Winding up
Distribution of assets
21.1 If the Company is wound up, the liquidator may, with the
sanction of a special resolution of the Company, divide among
the Members in kind the whole or any part of the property of
the Company and may for that purpose set such value as the
liquidator considers fair on any property to be so divided and
may determine how the division is to be carried out as between
the Members or different classes of Members.
21.2 The liquidator may, with the sanction of a special resolution
of the Company, vest the whole or any part of any such
property in trustees on such trusts for the benefit of the
contributories as the liquidator thinks fit, but so that no
Member is compelled to accept any shares or other securities
in respect of which there is any liability.
22 Indemnity
Indemnity of officers
22.1 Every person who is or has been a director, secretary or
executive officer of the Company and its Related Bodies
Corporate may, if the Directors so determine, be indemnified,
to the maximum extent permitted by law, out of the property of
the Company against any liabilities for costs and expenses
incurred by did person:
(a) in defending any proceedings relating to that
person's position with the Company, whether civil or
criminal, in which judgment is given in that person's
favour or in which that person is acquitted or which
are withdrawn before judgment; or
(b) in connection with any administrative proceedings
relating to that person's position with the Company,
except proceedings which give rise to
41
<PAGE>
civil or criminal proceedings against that person in
which judgment is not given in that person's favour
or in which that person is not acquitted or which
arise out of conduct involving a lack of good faith;
or
(c) in connection with any application in relation to any
proceedings relating to that person's position with
the Company, whether civil or criminal, in which
relief is granted to that person under the
Corporations Law by the court.
22.2 Every person who is or has been a director, secretary or
executive officer of the Company and its Related Bodies
Corporate may, if the Directors so determine, be indemnified,
to the maximum extent permitted by law, out of the property of
the Company against any liability to another person (other
than the Company or its Related Bodies Corporate) as such an
officer unless the liability arises out of conduct involving a
lack of good faith.
22.3 The Company may pay a premium for a contract insuring a person
who is or has been a director, secretary or executive officer
of the Company and its Related Bodies Corporate against:
(a) any liability incurred by that person as such an
officer which does not arise out of conduct involving
a wilful breach of duty in relation to the Company or
a contravention of sections 232(5) or (6) of the
Corporations Law; and
(b) any liability for costs and expenses incurred by that
person in defending proceedings relating to that
person's position with the Company, whether civil or
criminal, and whatever their outcome.
42
<PAGE>
The persons whose name and address is subscribed, being the subscriber to the
Memorandum of Association, hereby agrees to the foregoing Articles of
Association.
Francis Carew O"Brien
16 Redmond Street
Kew Vic 3101
Occupation: Legal Practitioner
Signature: Date: 30 September 1997
Witness to above signature:
Narelle Melissa Bridges
42/202 Wattletree Road
Malvern Vic 3144
Signature: Date: 30 September 1997
43
<PAGE>
Contents
1 Preliminary 1
Definitions 1
Interpretation 2
Table A not to apply 2
Proprietary company 3
2 Share capital and variation of rights 3
Directors to issue shares 3
Preference shares 4
Variation of rights 4
Commission and brokerage 5
Recognition and disclosure of interests 5
Right to share and option certificate 5
Joint holders of shares 6
3 Lien 6
Lien on share 6
Sale under lien 6
Transfer on sale under lien 7
Proceeds of sale 7
4 Calls on shares 7
Directors to make calls 7
Time of call 8
Members' liability 8
Fixed installments deemed calls 8
Differentiation between shareholders as to calls 9
Prepayment of calls 9
5 Transfer of shares 9
Forms of instrument of transfer 9
Registration procedure 10
Directors may decline to register 10
6 Transmission of shares 10
Transmission of shares on death of holder 10
Right to registration on death or bankruptcy 10
Effect of transmission 11
<PAGE>
7 Forfeiture of shares 12
Notice requiring payment of call 12
Forfeiture for failure to comply with notice 12
Cancellation of forfeiture 13
Effect of forfeiture on former holder's liability 13
Evidence of forfeiture 13
Transfer of forfeited share 13
8 Conversion of shares into stock 14
Company may convert shares into stock 14
Transfer of stock 14
Stockholders' rights 14
Application of Articles to stock 15
9 Alteration of capital 15
Company's power to alter capital 15
Reduction of capital 15
10 General meetings 15
Annual general meeting 16
General meeting 16
Notice of general meeting 16
Special business of general meeting 16
Requisitioned meeting 16
Objects of requisitioned meeting 17
Convening requisitioned meeting 17
Expenses of requisitioned meeting 17
Postponement or cancellation of meeting 18
11 Proceedings at general meetings 18
Representation of Member 18
Quorum 18
Failure to achieve quorum 19
Appointment and powers of chairman of general meeting 19
Adjournment of general meeting 20
Voting at general meeting 20
Questions decided by majority 21
Poll 21
Equality of votes 21
Entitlement to vote 21
Joint shareholder's vote 22
Vote of shareholder of unsound mind 22
Effect of unpaid call 22
Objection to voting qualification 22
<PAGE>
Appointment of proxy 23
Deposit of proxy and other instruments 23
Validity of vote in certain circumstances 23
Director entitled to notice of meeting 24
Resolution in writing 24
12 The Directors 24
Number of Directors 24
Share qualification of Directors 24
Appointment of Director 25
Removal of Director 25
Remuneration of Directors 25
Director's interests 25
Vacation of office of Director 27
13 Powers and duties of Directors 28
Directors to manage Company 28
Appointment of attorney 28
Minutes 28
Execution of Company cheques etc 29
14 Proceedings of Directors 29
Directors' meetings 29
Questions decided by majority 29
Alternate Directors 30
Quorum for Directors' meetings 31
Remaining Directors may act 31
Chairman of Directors 31
Directors' committees 32
Written resolution by Directors 33
Directors' meetings defined 33
Validity of acts of Directors 33
Appointment of Managing and Executive Directors 33
Remuneration of Managing and Executive Directors 34
Powers of Managing and Executive Directors 34
15 Secretary 34
Appointment of Secretary 34
Suspension and removal of Secretary 34
Powers and duties of secretary 34
Secretary to attend meetings 35
<PAGE>
16 Common seal and official seal 35
Custody of common seal 35
Use of common seal 35
Use of official seals 35
17 Inspection of records 36
Inspection by Members 36
18 Dividends and reserves 36
Declaration of final dividend 36
Directors may authorize interim dividend 36
No interest on dividends 36
Reserves and profits carried forward 36
Calculation and apportionment of dividends 37
Deductions from dividends 37
Distribution of specific assets 37
Payment by cheque and receipts from joint holders 38
Unclaimed dividends 38
19 Capitalization of profits 39
Capitalization of reserves and profits 39
20 Notices 40
Service of notices 40
Persons entitled to notice of general meeting 40
21 Winding up 41
Distribution of assets 41
22 Indemnity 41
Indemnity of officers 41
Exhibit B-191
BOGOTA CHAMBER OF COMMERCE (BCC)
DATE: 6 MARCH,1997 TIME: 19.08:43
01RO60306002 PAGE: 01
CERTIFICATE OF EXISTENCE AND LEGAL REPRESENTATION OR REGISTRATION OF
DOCUMENTS.
THE BCC, BASED ON THE REGISTER THE MERCANTILE BY LAWS,
CERTIFIES:
NAME:
GPUI COLOMBIA LTD.
NIT: 0830077057
ADDRESS: SANTA FE DE BOGOTA D.C.
CERTIFIES:
REGISTER NO. 659951
CERTIFIES:
CONSTITUTION: PUBLIC DEED P.D. NO. 2.798, FROM THE NOTARY 45 OF SANTA FE DE
BOGOTA, AUGUST 11,1995,REGISTERED AUGUST 15, 1995, UNDER NO. 504.361 BOOK IX,
THE COMMERCIAL SOCIETY "EL SERVICES COLUMBIA LTDA." WAS CONSTITUTED.
CERTIFIES:
THAT BY P.D. NO. 2.922 FROM THE NOTARY 32 OF SANTA FE DE BOGOTA, AUGUST 27,
1996, REGISTERED ON SEPTEMBER 4,1996,UNDER NO.553.455 BOOK IX, THE SOCIETY
CHANGED IT'S NAME FROM: "EL SERVICES COLOMBIA LTD.," TO: "GPU INTERNATIONAL
LATIN AMERICA LTDA."
CERTIFIES:
THAT BY P.D. NO. 393 FROM NOTARY 32 OF SANTA FE DE BOGOTA, FEBRUARY 17,1997,
REGISTERED FEBRUARY 24,1997 UNDER NO. 575.095 OF BOOK IX, THE SOCIETY CHANGED
ITS NAME FROM: "GPU INTERNATIONAL LATIN AMERICA LTDA." TO: "GPUI COLOMBIA
LTDA."
CERTIFIES:
MODIFICATIONS
DEED NO. DATE NOTARY INSCRIPTION
1.131 15-IV-1996 32 STAFE BTA 24-IV-1996 NO. 535267
2.922 27-VIII-1996 32 STAFE BTA 04-IX-1996 NO. 553455
393 17-II-1997 32 STAFE BTA 24-II-1997 NO. 575095
CERTIFIES:
VALIDATES: THAT THE SOCIETY IS NOT DISSOLVED.
TERM: AUGUST 11, 1995 TO AUGUST 11, 2015
CERTIFIES:
OBJECTIVES: THE OBJECTIVE OF THE SOCIETY IS THE OPERATION AND MAINTENANCE OF
POWER GENERATING PLANTS, PROPERTY OF THIRD PARTIES. THE SOCIETY CAN ALSO
ENGAGE IN THE FOLLOWING ACTIVITIES: I) REPRESENT, DISTRIBUTE AND
COMMERCIALIZE PLANTS AND POWER GENERATING EQUIPMENT. II) TECHNICAL CONSULTING
TO THIRD PARTIES IN THE GENERATION AND DISTRIBUTION OF ENERGY. III) PROVIDE
ADMINISTRATIVE SERVICES AND CONSULTING FOR THE MANAGEMENT OF RELATED
ENTERPRISES.
Exhibit B-192
State of Delaware
Secretary of State
Division of Corporations
Filed 09:00 AM 09/29/1997
971327710-2801421
CERTIFICATE OF INCORPORATION
OF
GPU AUSTRALIA HOLDINGS, INC.
It is hereby certified that:
First: The name of the corporation (hereinafter called the
-----
"corporation") is GPU Australia Holdings, Inc.
SECOND: The address, including street, number, city and county, of the
------
registered office of the corporation in the State of Delaware is 1013 Centre
Road, City of Wilmington, County of New Castle; and the name of the registered
agent of the corporation in the State of Delaware at such address is
Corporation Service Company.
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 10038
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 ss.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.
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 29h day of September, 1997.
Michael S. Shenberg
Sole Incorporator
Exhibit B-193
ANNEX B
BY-LAWS
OF
GPU AUSTRALIA HOLDINGS, INC.
Offices
1. GPU Australia Holdings, 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.
<PAGE>
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 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.
<PAGE>
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 39 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
<PAGE>
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
(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.
<PAGE>
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 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
<PAGE>
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.
18. From time to time the Board of Directors may appoint any other
committee or committees for any purpose or purposes,
<PAGE>
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 for 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;
<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:
<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
<PAGE>
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.
(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.
<PAGE>
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 44 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
<PAGE>
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 44 of the By-Laws, he may, when
authorized by the Board of Directors, affix the seal to all instruments
requiring it and shall attest the ensealing and execution of said instruments.
(d) He shall exhibit at all reasonable times his accounts and
records to any director of the Corporation upon application during business
hours at the office of the Corporation where such accounts and records are kept.
(e) He shall render an account of all his transactions as
Treasurer at all regular meetings of the Board of Directors, or whenever the
Board may require it, and at such other times as may be requested by the Board
or by any director of the Corporation.
(f) If required by the Board of Directors, he shall give the
Corporation a bond, the premium on which shall be paid by the Corporation, in
such form and amount and with such surety or sureties as shall be satisfactory
to the Board, for the faithful performance of the duties of his office, and for
the restoration to the Corporation in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other property
of whatever kind in his possession or under his control belonging to the
Corporation.
(g) He shall perform all duties generally incident to the
office of Treasurer, and shall have other powers and duties as from time to time
may be prescribed by law, by the By-Laws, or by the Board of Directors.
(h) Any Assistant Treasurer or Assistant Treasurers shall
assist the Treasurer in the performance of his duties, shall exercise his powers
and duties at his request or in his absence or disability, and shall exercise
such other powers and duties as may be prescribed by the Board of Directors. If
required by the Board of Directors, any Assistant Treasurer shall
<PAGE>
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 disbursements 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.
<PAGE>
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 selfdealing, 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
<PAGE>
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 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
<PAGE>
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.
<PAGE>
Inspection of Books
42. The Board of Directors may determine whether and to what extent,
and at what time the places and under what conditions and regulations, the
accounts and books of the Corporation (other than the books required by statute
to be open to the inspection of stockholders), or any of them, shall be open to
the inspection of stockholders, and no stockholder shall have any right to
inspect any account or book or document of the Corporation, except as such right
may be conferred by statutes of the State of Delaware or by the By-Laws or by
resolution of the Board of Directors or of the stockholders.
Checks, Notes, Bonds and Other Instruments
43. All checks or demands for money and notes of the Corporation shall
be signed by such person or persons (who may but need not be an officer of
officers of the Corporation) as the Board of Directors may from time to time
designate, either directly or through such officers of the Corporation as shall,
by resolution of the Board of Directors, be authorized to designate such person
or persons. If authorized by the Board of Directors, the signatures of such
persons, or any of them, upon any checks for the payment of money may be made by
engraving, lithographing or printing thereon a facsimile of such signatures, in
lieu of actual signatures, and such facsimile signatures so engraved,
lithographed or printed thereon shall have the same force and effect as if such
persons had actually signed the same.
44. All bonds, mortgages and other instruments requiring a seal, when
required in connection with matters which arise in the ordinary course of
business or when authorized by the Board of Directors, shall be executed on
behalf of the Corporation by the Chairman or the President or a Vice President,
and the seal of the Corporation shall be thereupon affixed by the Secretary or
an Assistant Secretary or the Treasurer or an Assistant Treasurer, who shall,
when required, attest the ensealing and execution of said instrument. If
authorized by the Board of Directors, a facsimile of the seal may be employed
and such 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,
<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
45. All receipts for stocks, bonds or other securities received by the
Corporation shall be signed by the Treasurer or an Assistant Treasurer, or by
such other person or persons as the Board of Directors or Executive Committee
shall designate.
Fiscal Year
46. The fiscal year shall begin the first day of January in each year.
Dividends
47. (a) Dividends in the form of cash or securities, upon the
capital stock of the Corporation, to the extent permitted by law may be declared
by the Board of Directors at any regular or special meeting.
(b) The Board of Directors shall have power to fix and
determine, and from time to time to vary, the amount to be reserved as working
capital; to determine whether any, and if any, what part of any, surplus of the
Corporation shall be declared as dividends; to determine the date or dates for
the declaration and payment or distribution of dividends; and, before payment of
any dividend or the making of any distribution to set aside out of the surplus
of the Corporation such amount or amounts as the Board of Directors from time to
time, in its absolute discretion, may think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for such other purpose as it
shall deem to be in the interest of the Corporation.
<PAGE>
Notices
48. (a) Whenever under the provisions of the By-Laws notice is
required to be given to any director, officer of stockholder, it shall not be
construed to require personal notice, but, except as otherwise specifically
provided, such notice may be given in writing, by mail, by depositing a copy of
the same in a post office, letter box or mail chute, maintained by the United
States Postal Service, postage prepaid, addressed to such stockholder, officer
or director, at his address as the same appears on the books of the Corporation.
(b) A stockholder, director or officer may waive in writing
any notice required to be given to him by law or by the By-Laws.
Participation in Meetings by Telephone
49. At any meeting of the Board of Directors or the Executive Committee
or any other committee designated by the Board of Directors, one or more
directors may participate in such meeting in lieu of attendance in person by
means of the conference telephone or similar communications equipment by means
of which all persons participating in the meeting will be able to hear and
speak.
Amendments
50. The By-Laws may be altered or amended by the affirmative vote of
the holders of a majority of the capital stock represented and entitled to vote
at a meeting of the stockholders duly held. The By-Laws may also be altered or
amended by the affirmative vote of a majority of the directors in office at a
meeting of the Board of Directors.
Exhibit B-194
CERTIFICATE OF INCORPORATION
OF
AUSTRAN HOLDINGS, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
------
"corporation")is Austran Holdings,Inc.
SECOND: The address including street, number, city and county, of the
------
registered office of the corporation in the State of Delaware is 1013 Centre
Road, City of Wilmington County of New Castle; and the name of the registered
agent of the corporation in the State of Delaware at such address is Corporation
Service Company.
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 ss.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.
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 29th day of September,
1997.
Michael S. Shenberg
Sole Incorporator
Exhibit B-195
State of Delaware
Secretary of State
Division of Corporations
Filed 09:00 AM 10/09/1997
971341344 - 2801437
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AUSTRAN HOLDINGS, INC.
It is hereby certified that:
1. The Certificate of Incorporation of Austran Holdings Inc., dated and
filed September 29, 1997 is hereby amended and restated as follows:
FIRST: The name of the corporation (hereinafter called the
------
"corporation") is Austran Holdings, Inc.
SECOND: The address, including street, number, city and county, of the
-------
registered office of the corporation in the State of Delaware is 1013 Centre
Road, City Of Wilmington, County of New Castle and the name of the registered
agent of the corporation in the State Of Delaware at such address is Corporation
Service Company.
THIRD: The corporation is organized to engage exclusively in the
------
following business and financial activities:
(I) To acquire and hold shares of Australian Transmission
Corporation Pty Ltd.("ATC") and interests in unit trusts whose general purpose
is to provide financing to ATC.
(II) To finance directly or indirectly through other entities
(including unit trusts) the acquisition by ATC of the assets and the assumption
of liabilities of PowerNet Victoria including with third party borrowings and/or
capital contributions from its parents, and to pledge and grant a security
interest in any and all of its assets in connection therewith and
(III) To engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware that is incidental to and necessary or appropriate to accomplish the
foregoing or related to the ownership of ATC or ATC's business.
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:
<PAGE>
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 ss.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.
EIGHTH: Elections of directors need not be by written ballot except
-------
and to the extent provided in the by-laws of the corporation.
NINTH: The corporation will conduct its affairs in accordance with
------
the following provisions:
(a) The corporation shall maintain its financial statements,
accounting records and other corporate documents separate from those of any
Affiliate (as defined below) or any other entity. The corporation shall prepare
unaudited quarterly and audited annual financial statements, and the
corporation's financial statements shall comply with generally accepted
accounting principles. The corporation shall maintain correct, complete and
separate books of account. The corporation shall retain as its accountants a
nationally recognized firm of independent certified public accountants,
provided, however, that such accountants may also serve as accountants of any
- -------------------
Affiliate.
(b) The corporation shall at all times hold itself out to the
public (including the creditors of any Affiliate) under the corporation's own
name and as a separate and distinct corporate entity.
Communications on behalf of the corporation shall be made in its own name.
(c) The assets of the corporation shall at all times be held by
or on behalf of the corporation and, if held on behalf of the corporation by
another entity, shall at all times be kept identifiable (in accordance with
customary usages) as assets owned by the corporation.
(d) The corporation shall not take any action if, as a result of
such action, the corporation would be required to register as an investment
company under the U.S. Investment Company Act of 1940, as amended.
<PAGE>
(e) The corporation will not incur any Finance Debt other than
pursuant to or as permitted by the Facility Agreement.
(f) The corporation will not (I) advance money or make
available financial accommodation to or for the benefit of, or (II) give a
Guarantee or Security Interest in connection with an obligation or liability of,
a person who is not a Transaction Party, except as permitted by the Facility
Agreement.
(g) The corporation will not engage in any transaction with
Affiliates, which is prohibited by the Facility
Agreement.
(h) "Affiliate" means any entity other then the corporatio
--- -----------
(I) which owns beneficia1ly, directly or indirectly,
more than 50 percent of the outstanding shares of the
------
corporation or which is otherwise in control of the
corporation, (II) more than 50 percent of the
outstanding voting securities of which are owned
beneficially, directly or indirectly, by any entity
described in clause (I) above, or (III) which is
controlled by any entity described in clause (I) above
(the terms "control" and "controlled by" having the
------- ---------- --
meanings assigned to them in rule 408 under the U.S.
Securities Act of 1933,as amended). "Facility
---------
Agreement" means, the Syndicated Multi-Option Facility
---------
Agreement to be dated as of October 10, 1997 (as such
may be amended from time to time) among the
corporation, its Guarantors, the Participants, the
Arrangers and Chase Securities Australia Limited as
Agent and Security Agent. Each of the terms
"Guarantors" "Participants", "Arrangers", "Agent",
------------ ------------- --------- -----
"Finance Debt", "Security Agent", "Guarantee",
------------- -------------- -----------
"Security Interest", and "Transaction Party", shall
------------------ -----------------
have the meaning set forth in the Facility Agreement.
TENTH: The corporation shall not amend Articles THIRD, NINTH or TENTH
------
of this Amended and Restated Certificate of Incorporation without the permission
of the Agent.
2. The corporation has not received any payment for any of its stock.
3. This Amended and Restated Certificate of Incorporation of the
corporation was duly adopted, pursuant to the provisions of Sections 241 & 245
of the General Corporation Law of the State of Delaware by the sole
incorporator, no directors having been named in the Certificate of Incorporation
and no directors having been elected.
<PAGE>
IN WITNESS WHEREOF, I have hereunto set my hand this 9th day of
October, 1997.
Michael S. Shenberg
Sole Incorporator
<PAGE>
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY "AUSTRAN HOLDINGS, INC." IS DULY INCORPORATED UNDER THE LAWS OF
THE STATE OF DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL CORPORATE
EXISTENCE SO FAR AS THE RECORDS OF THIS OFFICE SHOW, AS OF THE TWENTY-SECOND
DAY OF OCTOBER, A.D. 1997
AND I DO HEREBY FURTHER CERTIFY THAT THE FRANCHISE TAXES HAVE NOT BEEN
ASSESSED TO DATE.
Edward J. Freel, Secretary of State
Authentication: 8715160
Date: 10/22/97
Exhibit B-196
ANNEX B
BY-LAWS
OF
AUSTRAN HOLDINGS, INC.
Offices
1. Austran Holdings, 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.
<PAGE>
5. Except as otherwise provided by law or by the Certificate of
Incorporation, the holders of a majority of the shares of stock of the
Corporation issued and outstanding and entitled to vote, present in person or by
proxy, shall be requisite for, and shall constitute a quorum at, any meeting of
the stockholders. If, however, the holders of a majority of such shares of stock
shall not be present or represented by proxy at any such meeting, the
stockholders entitled to vote thereat, present in person or by proxy, shall have
power, by vote of the holders of a majority of the shares of capital stock
present or represented at the meeting, to adjourn the meeting from time to time
without notice other than announcement at the meeting, until the holders of the
amount of stock requisite to constitute a quorum, as aforesaid, shall be present
in person or by proxy. At any adjourned meeting at which such quorum shall be
present, in person or by proxy, any business may be transacted which might have
been transacted at the meeting as originally noticed.
6. At each meeting of stockholders each holder of record of shares of
capital stock then entitled to vote shall be entitled to vote in person, or by
proxy appointed by instrument executed in writing by such stockholders or by his
duly authorized attorney; but no proxy shall be valid after the expiration of
eleven months from the date of its execution unless the stockholder executing it
shall have specified therein the length of time it is to continue in force,
which shall be for some specified period. 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
<PAGE>
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 39 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.
<PAGE>
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
(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
<PAGE>
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 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.
<PAGE>
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.
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.
<PAGE>
Comensation 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 for 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
<PAGE>
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.
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(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
<PAGE>
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.
(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.
<PAGE>
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 44 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
<PAGE>
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 44 of the By-Laws, he may, when
authorized by the Board of Directors, affix the seal to all instruments
requiring it and shall attest the ensealing and execution of said instruments.
(d) He shall exhibit at all reasonable times his accounts and
records to any director of the Corporation upon application during business
hours at the office of the Corporation where such accounts and records are kept.
(e) He shall render an account of all his transactions as
Treasurer at all regular meetings of the Board of Directors, or whenever the
Board may require it, and at such other times as may be requested by the Board
or by any director of the Corporation.
(f) If required by the Board of Directors, he shall give the
Corporation a bond, the premium on which shall be paid by the Corporation, in
such form and amount and with such surety or sureties as shall be satisfactory
to the Board, for the faithful performance of the duties of his office, and for
the restoration to the Corporation in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other property
of whatever kind in his possession or under his control belonging to the
Corporation.
(g) He shall perform all duties generally incident to the
office of Treasurer, and shall have other powers and duties as from time to time
may be prescribed by law, by the By-Laws, or by the Board of Directors.
(h) Any Assistant Treasurer or Assistant Treasurers shall
assist the Treasurer in the performance of his duties, shall exercise his powers
and duties at his request or in his absence or disability, and shall exercise
such other powers and duties as may be prescribed by the Board of Directors. If
required by the Board of Directors, any Assistant Treasurer shall
<PAGE>
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 disbursements 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.
<PAGE>
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 selfdealing, 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
<PAGE>
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 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
<PAGE>
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 holders 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.
<PAGE>
Inspection of Books
42. The Board of Directors may determine whether and to what extent,
and at what time the places and under what conditions and regulations, the
accounts and books of the Corporation (other than the books required by statute
to be open to the inspection of stockholders), or any of them, shall be open to
the inspection of stockholders, and no stockholder shall have any right to
inspect any account or book or document of the Corporation, except as such right
may be conferred by statutes of the State of Delaware or by the By-Laws or by
resolution of the Board of Directors or of the stockholders.
Checks, Notes, Bonds and Other Instruments
43. All checks or demands for money and notes of the Corporation shall be
signed by such person or persons (who may but need not be an officer of officers
of the Corporation) as the Board of Directors may from time to time designate,
either directly or through such officers of the Corporation as shall, by
resolution of the Board of Directors, be authorized to designate such person or
persons. If authorized by the Board of Directors, the signatures of such
persons, or any of them, upon any checks for the payment of money may be made by
engraving, lithographing or printing thereon a facsimile of such signatures, in
lieu of actual signatures, and such facsimile signatures so engraved,
lithographed or printed thereon shall have the same force and effect as if such
persons had actually signed the same.
44. All bonds, mortgages and other instruments requiring a seal, when
required in connection with matters which arise in the ordinary course of
business or when authorized by the Board of Directors, shall be executed on
behalf of the Corporation by the Chairman or the President or a Vice President,
and the seal of the Corporation shall be thereupon affixed by the Secretary or
an Assistant Secretary or the Treasurer or an Assistant Treasurer, who shall,
when required, attest the ensealing and execution of said instrument. If
authorized by the Board of Directors, a facsimile of the seal may be employed
and such 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,
<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
45. All receipts for stocks, bonds or other securities received by the
Corporation shall be signed by the Treasurer or an Assistant Treasurer, or by
such other person or persons as the Board of Directors or Executive Committee
shall designate.
Fiscal Year
46. The fiscal year shall begin the first day of January in each year.
Dividends
47. (a) Dividends in the form of cash or securities, upon the
capital stock of the Corporation, to the extent permitted by law may be declared
by the Board of Directors at any regular or special meeting.
(b) The Board of Directors shall have power to fix and
determine, and from time to time to vary, the amount to be reserved as working
capital; to determine whether any, and if any, what part of any, surplus of the
Corporation shall be declared as dividends; to determine the date or dates for
the declaration and payment or distribution of dividends; and, before payment of
any dividend or the making of any distribution to set aside out of the surplus
of the Corporation such amount or amounts as the Board of Directors from time to
time, in its absolute discretion, may think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for such other purpose as it
shall deem to be in the interest of the Corporation.
<PAGE>
Notices
48. (a) Whenever under the provisions of the By-Laws notice is
required to be given to any director, officer of stockholder, it shall not be
construed to require personal notice, but, except as otherwise specifically
provided, such notice may be given in writing, by mail, by depositing a copy of
the same in a post office, letter box or mail chute, maintained by the United
States Postal Service, postage prepaid, addressed to such stockholder, officer
or director, at his address as the same appears on the books of the Corporation.
(b) A stockholder, director or officer may waive in writing
any notice required to be given to him by law or by the By-Laws.
Participation in Meetings by Telephone
49. At any meeting of the Board of Directors or the Executive Committee
or any other committee designated by the Board of Directors, one or more
directors may participate in such meeting in lieu of attendance in person by
means of the conference telephone or similar communications equipment by means
of which all persons participating in the meeting will be able to hear and
speak.
Amendments
50. The By-Laws may be altered or amended by the affirmative vote of
the holders of a majority of the capital stock represented and entitled to vote
at a meeting of the stockholders duly held. The By-Laws may also be altered or
amended by the affirmative vote of a majority of the directors in office at a
meeting of the Board of Directors.
Exhibit B-197
L-100-NJSA 42 (2/94)
New Jersey Department of State
Division of Commercial Recording
Certificate of Formation, Limited Liability Company
This form may be used to record the formation of a Limited Liability Company
under and by virtue of New Jersey State law. Applicants must insure strict
compliance with NJSA 42, The New Jersey Limited Liability Company Act, and
insure that all applicable filing requirements are met. This form is intended to
simplify filing with the Secretary of State. Applicants are advised to seek out
private legal assistance before submitting filings to the Secretary's office.
1. Name of Limited Liability: GPU Solar, L.L.C.
2. The purpose for which this Limited Liability Company is organized is:
Any lawful purpose, business or activity, subject to the Operating
Agreement.
3. Date of formation:
4. Registered Agent Name & Address (must be in NJ):
James R. Torpey, Jr.
c/o GPU International, Inc.
One Upper Pond Road
Parsippany, NJ 07054
5. Dissolution date: December 31, 2026
6. Other provisions (list below or attach to certificate).
The undersigned represent(s) that this Limited Liability Company has two or more
members, and that this filing complies with requirements detailed in NJSA 42.
The Undersigned hereby attest(s) that they are authorized to sign this
certificate on behalf of the Limited Liability Company.
Name Date
July 8,1997
Exhibit B-198
OPERATING AGREEMENT
FOR
GPU SOLAR, L.L.C.
THIS OPERATING AGREEMENT is made and entered into as of July
1, 1997 by GPU International, Inc., a Delaware corporation ("GPUI"), and
AstroPower, Inc., a Delaware corporation ("API") (referred to as the "Members"
and individually as a "Member").
In consideration of the mutual covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
THE LIMITED LIABILITY COMPANY
1.1 Formation. The Members hereby form a limited liability
company (the "Company") subject to the provisions of the New Jersey Limited
Liability Company Act as currently in effect (the "Act").
1.2 Filing. In connection with the execution of this Operating
Agreement, the Members shall cause a Certificate of Formation that complies with
the requirements of the Act to be properly filed with the New Jersey Secretary
of State, and shall execute such further documents (including amendments to the
Certificate of Formation) and take such further action as is appropriate to
comply with the requirements of law for the formation or operation of a limited
liability company in all states where the Company may conduct its business.
1.3 Name. The name of the Company shall be GPU Solar, L. L. C.
1.4 Registered Office, Registered Agent. The location of the
registered office of the Company shall be c/o GPU International, Inc., One Upper
Pond Road, Parsippany, NJ 07054 and thereafter at such other location as the
Members may designate. The Company's registered agent at such address shall be
James R. Torpey, Jr.
<PAGE>
1.5 Events of Dissolution. The Company shall continue until
December 31, 2026, unless sooner dissolved pursuant to Section 11.11(b) or by:
(a) the affirmative vote of Members holding a majority
of the Allocable Percentages;
(b) any event which makes it unlawful for the business
of the Company to be carried on by the Members;
(c) the bankruptcy or dissolution of a Member or the
occurrence of any other event that terminates the continued membership of a
Member in the Company;
(d) the sale of all or substantially all of the
Company's assets and the cessation of its business activities; or
(e) any other event causing a dissolution of a limited
liability company under the Act.
1.6 Continuance of the Company. Notwithstanding the provisions
of Section 1.5, if, upon the occurrence of an event described in Section 1.5(c),
there are at least two remaining Members, the remaining Members shall have the
right to continue the business of the Company by so electing in writing within
90 days after the occurrence of such event. If the remaining Members do not
elect to continue the business of the Company, the Company's affairs shall be
wound up as provided in Article VIII.
1.7 Background; Purpose.
(a) GPUI has expertise concerning the production,
transmission, distribution and sale of electric energy.
(b) API is engaged in the business of designing,
engineering, manufacturing and assembling photovoltaic ("PV") systems for the
production of electric energy.
(c) GPUI has entered into a Team-Up Program Agreement
(the "UPVG Agreement"), dated as of March 31, 1997, with the Utility
Photovoltaic Group, Inc. ("UPVG") pursuant to which GPUI has been awarded a
grant from UPVG in connection with UPVG's Cooperative Agreement with the United
States Department of Energy, under which UPVG has agreed to assist in the
commercialization of PV systems.
<PAGE>
(d) The UPVG Agreement sets forth a Statement of Work
(the "SOW") to be performed by GPUI in connection with the development of
commercial applications for PV systems.
(e) The Members have arranged for the Company to be formed
for the purpose of acting as a subcontractor and/or supplier to GPUI for
purposes of performing the SOW contemplated by the UPVG Agreement, and to engage
in such other business(es) as may be mutually agreed between the Members.
(f) It is contemplated that the Company will not have any
employees and that therefore the bulk of the services to enable the Company to
carry out its commitments in performing the SOW will be provided by or through
API or other subcontractors, which will also supply material to the Company in
connection therewith.
(g) Concurrently herewith the Members and the Company are
entering into a Performance Agreement (the "Performance Agreement") pursuant to
which the Company is agreeing to perform the SOW and API is agreeing to render
services and supply material to the Company in connection therewith.
(h) The Company shall be authorized to take such
actions and to transact such business in furtherance of the foregoing objectives
as may be taken and transacted by limited liability companies formed under New
Jersey law, including, but not limited to, transactions with affiliates or
related entities, including, but not limited to, buying from or selling to,
borrowing from or lending to, or leasing property from or to, such affiliates or
related entities.
1.8 Principal Place of Business. The location of the principal
place of business of the Company shall be c/o GPU International, Inc., One Upper
Pond Road, Parsippany, NJ 07054, or at such other place as the managers from
time to time may select.
1.9 The Members. The name and present mailing address of each
Member is as follows:
Name Address
GPU International, Inc. One Upper Pond Road
Parsippany, NJ 07054
<PAGE>
AstroPower, Inc. Solar Park
Newark, DE 19716-2000
1.10 New Members. Except as expressly provided by this
Operating Agreement or the Act, new Members may be admitted only upon such terms
and conditions as may be mutually agreed between the Members.
1.11 Voting Rights. Except as expressly provided by this
Operating Agreement or the Act, with respect to all matters submitted to a vote
of the Members, the decision of Members holding a majority of the Allocable
Percentages shall be determinative.
ARTICLE II
CAPITAL CONTRIBUTIONS
2.1 Initial Contributions. Each of the Members initially shall
contribute to the Company's capital $50 in cash (the "Initial Contribution").
2.2 Additional Contributions. No Member shall be obligated to
make any additional contribution ("Additional Contribution") to the Company's
capital. In the event that any Member makes such Additional Contribution, such
contribution shall not affect any Member's Allocable Percentage and shall be
repaid only as provided herein.
2.3 No Interest. Neither the Initial Contributions nor any
Additional Contribution shall bear interest unless otherwise unanimously agreed
by the members.
ARTICLE III
PROFITS, LOSSES AND DISTRIBUTIONS
3.1 Profits and Losses; Allocable Percentages. Subject to the
provisions of Section 6.1, the Company's "Net Profits" or "Net Losses" shall be
determined on an annual basis, as provided in Section 3.3, and shall be
allocated among the Members in accordance with their Allocable Percentages. The
"Allocable Percentage" of each Member is 50%.
3.2 Distributions. Subject to the provisions of Section 6.2
and provided the Company is not then in the process of liquidation, at such
times as the Managers shall determine, the Managers shall distribute Available
Funds to the Members in proportion to their Allocable Percentages; provided,
however,
<PAGE>
that in the event any Member has made an Additional Contribution, such
Additional Contribution shall be repaid from Available Funds, together with any
applicable interest, prior to making any other distributions to the Members. For
this purpose, "Available Funds" means the Company's cash and other liquid assets
in excess of the amount that, in the Managers, reasonable judgment, the Company
should retain as reserves.
3.3 Accounting. For each fiscal year, "Net Profits" and "Net
Losses" shall be determined by the Company's accountants, after consultation
with the Managers, in accordance with the methods and elections used for federal
income tax purposes, which methods and elections shall be satisfactory to the
Managers. The Company's fiscal year shall be the calendar year.
ARTICLE IV
MANAGEMENT
4.1 Liability. In accordance with Section 42:2B-23 of the Act,
no Member or person serving as one of the Managers or bearing a title as an
officer of the Company shall be obligated personally with respect to any debt,
obligation or liability of the Company by reason of being a Member, or serving
as one of the Managers, or acting as an officer, agent or otherwise on behalf of
the Company.
4.2 Managers.
(a) Pursuant to Section 42:2B-27 of the Act, the
business of the Company shall be managed by a committee of Managers (the
"Managers") comprised of four persons to be elected by the Members, two to be
designated by GPUI and two to be designated by API. It is presently contemplated
that GPUI will designate James R. Torpey, Jr. and Gina Collins and that API will
designate Peter Aschenbrenner and Dr. George Roland as their respective initial
Managers. Each of the Members agrees that for so long as it continues to be a
Member of the Company, it will vote and take such other action as may be
necessary to elect as Managers the persons so designated by GPUI and API,
respectively, from time to time. Except as expressly provided by this Operating
Agreement or the Act, the Managers shall act by the vote of a majority of the
persons then serving as managers.
<PAGE>
(b) In order to facilitate the transaction of
business by the Company, the Members agree that the following persons shall be
assigned the titles set forth opposite their respective names and shall have
such authority as is generally conferred on the corresponding officers of a New
Jersey corporation:
Name Office
James R. Torpey, Jr. President
Peter Aschenbrenner Secretary
(c) All substantive business decisions and decisions
relating to matters outside of the routine ordinary course of business of the
Company, including, without limitation, decisions as to the projects and
activities to be undertaken by the Company, and the terms of any such
undertaking, shall be made only by unanimous action of the Managers. Without
limiting the generality of the foregoing, and except as otherwise specifically
contemplated herein or in the Performance Agreement, the Company will not,
without unanimous approval of the Managers, take any of the following actions:
(i) Open bank accounts or designate
authorized signatories thereof;
(ii) Create, incur, assume or suffer
to exist any mortgage, lien, security interest or other charge or encumbrance
upon or with respect to any of its property or rights, whether now owned or
hereafter acquired, or assign any right to receive income, services or property,
except liens (i) for taxes, assessments, or governmental charges or levies on
property of the Company if same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith and
by appropriate proceedings, or (ii) imposed by law, such as carriers',
warehousemen's and mechanics, liens and other similar liens arising in the
ordinary course of business;
(iii) Create, incur, assume or suffer
to exist any indebtedness for borrowed money or for the deferred purchase price
of assets or property or for the lease of any assets or property;
<PAGE>
(iv) Assume, guarantee, endorse or
otherwise become directly or contingently liable in connection with any debt or
obligation of any other person or entity, except for guaranties by endorsement
of negotiable instruments for deposit or collection or similar transactions in
the ordinary course of business;
(v) Make any advances or loans to,
or any investments in, any person or entity;
(vi) Declare or pay any
distributions in respect of an interest in the Company or effect any redemption
or other acquisition of any such interest;
(vii) Merge or consolidate with, or
acquire all or substantially all of the assets or stock of, any other entity, or
sell, lease or otherwise dispose of any substantial portion of its assets in any
single transaction or series of transactions, whether or not related, except for
sales of inventory in the ordinary course of business;
(viii) Hire and fire employees,
consultants or other agents of the Company or fix the terms of retention and
compensation thereof;
(ix) Adopt or amend any business
plan or budget for the Company;
(x) Admit any new Members or issue
any interest in the Company or any options, warrants or rights to acquire such
an interest or any securities convertible into or exchangeable for such an
interest;
(xi) Amend the Certificate of
Formation of the Company or this Operating Agreement;
(xii) Make or commit to make any
substantial capital or other expenditures, including, without limitation,
long-term or capital leases; or
(xiii) Enter into any other agreements
or commitments obligating the Company in any substantial respect to pay moneys
or to perform services or provide goods.
(d) Responsibility and authority for specified
day-to-day operational matters may be delegated to such persons and on such
terms as the Managers may unanimously determine.
<PAGE>
(e) The provisions of this Section 4.2 shall
terminate from and after the date that each of GPUI and API no longer holds a
50% Allocable Percentage.
4.3 Time Devoted to Business. It is understood and agreed that
each of the Managers and the persons designated as President and Secretary are
active in the business of GPUI or API, as the case may be, and shall devote only
such time to the Corporation's business as they, in their sole and absolute
discretion, deem necessary and appropriate. The Managers and every Member shall
at all times be free to engage for his, her or its own account in all aspects of
any other business or investment, whether similar or dissimilar to the business
of the Company, and neither the Company nor any other Member shall have any
claim or right to the assets or profits related to such other business or
investment.
4.4 Information Relating to Company. Upon reasonable request,
the Managers shall provide information regarding the Company or its activities
to any Member. Each Member or its authorized representative shall have
reasonable access to and may inspect and copy all books, records and materials
in any Manager's possession regarding the Company or its activities.
4.5 Exculpation; Indemnification. The managers and the persons
designated as President and Secretary shall not be liable to the Company, or any
Member thereof, for any act or omission related to the Company or its operations
which act or omission was undertaken in good faith. The Company shall, to the
full extent permitted by law, defend and indemnify each of the Managers and
Members and each person bearing a title as an officer of the Company from and
against any and all losses, claims, damages and liabilities (including
reasonable attorneys, fees) arising out of or in connection with their
activities as Managers, Members, officers, employees and/or agents of the
Company and shall pay all amounts required to be paid by them pursuant to court
order or in settlement of any action brought or threatened to be brought against
them in respect of any such activity; provided, however, that this provision
shall not impose any liability on any Member to make any Additional
Contributions to the Company on behalf of any indemnified party with respect to
such indemnity.
4.6 Records at Principal Place of Business. The Managers shall
cause the Company to keep at its principal place of business the following:
<PAGE>
(a) a current list in alphabetical order of the
full name and last known address of each Member;
(b) a copy of the Certificate of Formation and
all certificates of amendment thereto, as filed, together with executed copies
of any powers of attorney pursuant to which any certificate of amendment has
been executed; and
(c) complete and accurate books and records of the
Company.
ARTICLE V
REPRESENTATIONS
5.1 Investment Representation. Each of the Members
acknowledges that the interest in the Company which it is acquiring pursuant to
this Operating Agreement has not been registered under the Securities Act of
1933 or any state securities laws. Each of the members hereby represents that it
is acquiring such interest for investment and not with a view to the
distribution thereof or of any interest therein and agrees that no sale or other
disposition thereof shall be made except in accordance with this Operating
Agreement and in compliance with applicable securities laws. The certificates,
if any, representing such interest may bear an appropriate legend giving notice
of the foregoing restriction on transfer of the interest.
ARTICLE VI
CAPITAL ACCOUNTS
6.1 Capital Accounts. A separate Capital Account will be
maintained for each Member. The initial Capital Account of each Member shall be
such Member's Initial Contribution.
(a) Each Member's Capital Account will be
increased by:
(i) The amount of any Additional
Contributions;
(ii) Allocations of Net Profits; and
(iii) Allocations of items of income
described in Section 705(a)(1)(B) of the
Internal Revenue Code of 1986, as amended
("IRC Section").
<PAGE>
(b) Each Member's Capital Account will be decreased
by:
(i) Distributions of Available Funds or
other property;
(ii) Allocations of Net Losses; and
(iii) Allocations of expenditures
described in IRC Section 705 (a) (2) (B).
(c) Notwithstanding the provisions of Sections
3.1 and 6.1(a) and (b), in the event the applicable Treasury Regulations
promulgated under IRC Section 704 require the Company to allocate Net Losses or
a specific item of deduction or loss ("Loss Item") to a Member in a manner other
than such Member's Allocable Percentage, then for all purposes, including the
determination of Capital Accounts, such Loss Item shall be allocated to the
Member in accordance with such Regulations and thereafter if such Regulations
require that any item of Net Profits or income or gain ("Income Item") related
to such Loss Item be allocated by the Company to such Member to reflect the
prior allocation of such Loss Item to such Member, then for all purposes,
including the determination of Capital Accounts, such Income Item shall be
allocated to such Member as required thereunder.
(d) In the event of a sale or exchange of an
interest in the Company, the Capital Account of the transferor shall become the
Capital Account of the transferee in accordance with Treas. Reg. Section 1.704-1
(b) (2) (iv).
(e) Upon liquidation of the Company, liquidating
distributions will be made in accordance with the positive Capital Account
balances of the Members, as determined after taking into account all Capital
Account adjustments for the Company's fiscal year during which the liquidation
occurs. Liquidation proceeds shall be paid as promptly as possible and shall be
subject to offset, if the distributes or the distributee's transferor, has
violated the provisions of this Operating Agreement, to the extent of any damage
incurred by the Company as a result of such breach.
(f) No Member shall have any liability to
restore any portion of a deficit balance in such Member's Capital Account.
<PAGE>
(g) The Members are hereby authorized to amend
this Operating Agreement to ensure that all accounting and tax matters and all
other matters relating to the allocation of any item of income, gain, loss or
deduction or relating to the Members' Capital Accounts shall comply with
applicable provisions of the Internal Revenue Code of 1986 and the Treasury
Regulations promulgated thereunder and shall be consistent with the methods and
elections used for federal income tax purposes.
6.2 Withdrawal or Reduction of Members' Contributions to
Capital. No Member shall be entitled to receive any part of such Member's
Initial or Additional Contribution until all liabilities of the Company (except
liabilities to Members on account of their capital contributions) have been paid
or the Company has sufficient assets to pay such liabilities.
6.3 Transfers During Year. In the event that a Member
transfers part or all of such Member's interest in the Company in accordance
with the provisions of Article VII during the calendar year, Net Profits, Net
Losses and all other items between the transferor and transferee shall be
allocated on a pro rata basis, using the relative portion of the Company's
fiscal year ending on the date of the transfer and the portion of the fiscal
year following the date of transfer.
6.4 Reports. The Managers shall prepare annual financial
reports and shall prepare and send to each Member a statement of such Member's
distributive share of the Company's income and expense for federal income tax
reporting purposes.
ARTICLE VII
TRANSFER OF A MEMBER'S INTEREST
7.1 Transfer Restrictions and Procedures.
(a) Unless the Members unanimously agree
otherwise, prior to completion of the SOW and fulfillment of the Company's
obligations to GPUI under the Performance Agreement, neither Member may sell,
assign, transfer, pledge, encumber or in any other manner dispose of all or any
portion of the interest in the Company which it owns except by operation of law.
Any such sale, assignment, transfer, pledge, encumbrance or other disposition,
including any attempt thereat, shall be null and void.
<PAGE>
(b) If, at any time after completion of the SOW
and fulfillment of the Company's obligations to GPUI under the Performance
Agreement, either Member (the "Selling Member") shall desire to transfer or
dispose of some or all of its interest in the Company, it shall, before
soliciting any third party offers therefor, give written notice of its intention
to do so to the Company and the other Member. The Company shall then have the
option (exercisable by written notice within 30 days after receipt of the
Selling Member's notice) to purchase either (i) the interest in the Company the
Selling Member shall desire to dispose of as stated in such notice (the "Offered
Interest") or (ii) the entire interest in the Company owned by the Selling
Member, at a price to be mutually agreed upon. If within such 30-day period, the
Company does not exercise its option as to the entire interest subject to such
option, the other Member shall have the option (exercisable by written notice
within 35 days after receipt of the Selling Member's notice) to purchase the
interest as to which the Company has not exercised its option, at a price to be
mutually agreed upon.
(c) If the Company and the other Member do not
exercise their respective options as set forth in Section 7.1(b) so as to
purchase the entire Offered Interest, or if the parties cannot reach mutual
agreement as to the price for such interest, the Selling Member shall have the
right, at any time within 60 days after the expiration of the last such option
period, to submit to the Company and the other Member a bona fide third party
offer for the purchase of the offered Interest (the "Offer") and the Company,
initially, and then the other Member, shall have the option (exercisable by
written notice to the Selling Member within 20 and 30 days, respectively, after
receipt of the offer from the Selling Member) to purchase the Offered Interest
at the price and on the terms set forth in the Offer. If the Company and the
other Member do not exercise their respective options as set forth in this
Section 7.1(c) so as to purchase the entire Offered Interest, the Selling Member
shall have the right, at any time within 90 days after the expiration of the
last such option period, to dispose of the Offered Interest at the price and on
the terms set forth in the offer; provided, however, that the purchaser or
transferee of any interest first becomes a party to and bound by the terms of
this Operating Agreement by executing a counterpart thereof; but if any such
disposition is not made within such 90-day period such interest shall again be
subject to the provisions of this Section 7.1.
<PAGE>
(d) The closing of any purchase and sale of an
interest in the Company in accordance with the foregoing provisions shall be
held at the principal office of the Company or at such other place as may be
agreed upon, on a date and at a time designated by the purchaser, but not later
than 30 days after written notice of such purchase is given to the Selling
Member. At such closing, the full purchase price shall be paid to the Selling
Member by certified or bank check and the Selling Member shall deliver to the
purchaser the certificates, if any, representing the interest to be sold with
all necessary stock transfer tax stamps attached, which certificates, if any, at
such time will be duly endorsed in blank for transfer.
(e) All certificates, if any, representing an
interest in the Company shall have stamped on their front and back an
appropriate legend setting forth the substance of the foregoing restrictions.
7.2 Authority of Managers. Upon the terms set forth in this
Article VII, the Managers are authorized (a) to admit substitute Members; (b) to
exercise the power of attorney granted in Article IX to amend this Operating
Agreement or the Certificate of Formation to reflect such substitution; and (c)
to file any such amendment with the appropriate authorities.
ARTICLE VIII
DISSOLUTION AND TERMINATION
8.1 Final Accounting. In case of the Company's dissolution, a
proper accounting shall be made from the date of the last previous accounting to
the date of final distribution.
8.2 Liquidation. Upon the Company's dissolution and the
failure of the remaining members to continue the Company as provided in Section
1.6, Members holding a majority of the Allocable Percentages shall select a
person to act as liquidator to wind up the Company. The liquidator shall have
full power and authority to sell, assign and encumber any or all of the
Company's assets and to wind up and liquidate the Company's affairs in an
orderly and prudent manner. The liquidator shall distribute all proceeds from
liquidation to the Members in accordance with Section 6.1(e).
8.3 Distribution in Kind. If the liquidator shall determine
that all or a portion of the Company's assets should be distributed in kind to
the Members, the liquidator shall distribute such assets to them in accordance
with Section 6.1(e).
<PAGE>
8.4 Cancellation of Certificate. Upon the completion of the
distribution of Company assets, the Company shall be terminated and the managers
(or liquidator) shall cause the Company to execute and file a Certificate of
Cancellation and take such other actions as may be necessary to terminate the
Company.
ARTICLE IX
POWERS OF ATTORNEY
9.1 Appointment of Managers. Each Member by its execution
hereof does irrevocably constitute and appoint the Managers, acting collectively
and unanimously, as such Member's true and lawful attorney, in its name, place
and stead to file a Certificate of Formation with the appropriate authorities
and to execute, acknowledge, swear to and file (a) all amendments to this
Operating Agreement or to the Certificate of Formation required by law or
authorized or required by the provisions of this Operating Agreement or the
Certificate of Formation; (b) all certificates and other instruments necessary
to qualify or continue the Company as a limited liability company wherein the
Members have limited liability in the states where the Company may be doing
business; and (c) all conveyances and other instruments necessary to effect the
Company's dissolution and termination. The Managers, acting collectively and
unanimously, are further authorized to substitute one or more of them, or one or
more other persons, to act as such true and lawful attorney in the place and
stead of the Managers.
9.2 Irrevocable. The powers of attorney granted herein shall
be deemed to be coupled with an interest and shall be irrevocable. In the event
of any conflict between this Operating Agreement and any instruments filed by
such attorney pursuant to the power of attorney granted in this Article IX, this
Operating Agreement shall control.
ARTICLE X
DISPUTES
10.1 Arbitration. Any dispute or controversy arising under or
in connection with this Operating Agreement, including, without limitation, a
dispute resulting in a management deadlock or other circumstances involving the
management of the Company which materially impede the Company's ability to carry
on its business, shall be settled by arbitration to be held in or about Morris
County, New Jersey in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be
<PAGE>
entered on the arbitrators, award in any court having jurisdiction, and the
parties consent to the exclusive jurisdiction of the New Jersey courts for this
purpose. Any process or other papers under this provision may be served outside
New Jersey by registered mail, return receipt requested, or by personal service,
provided a reasonable time for appearance or response is allowed.
ARTICLE XI
GENERAL PROVISIONS
11.1 Assignment. No rights under this Operating Agreement
shall be assignable, but this Operating Agreement shall be binding upon and
inure to the benefit of the successors to the business of the Company and the
permitted successors of the Members.
11.2 Applicable Law. This Operating Agreement shall be
governed by and construed in accordance with the law of the State of New Jersey
applicable to agreements made and to be performed therein.
11.3 Notices. All offers, notices and other communications
hereunder shall be in writing and shall be deemed given when delivered
personally or by recognized overnight courier or when mailed by certified mail,
return receipt requested, to the parties at their respective addresses set forth
in Section 1.9 (or at such other address for a party as shall be specified by
notice given pursuant hereto).
11.4 Separability. The invalidity or unenforceability of any
term or provision of this Operating Agreement shall not affect the validity or
enforceability of the remaining terms or provisions hereof, which shall remain
in full force and effect.
11.5 Enforcement. The parties recognize that irreparable
damage will result in the event that this Operating Agreement shall not be
specifically enforced. If any dispute arises hereunder, including, without
limitation, a dispute concerning the disposition of an interest in the Company
hereunder, the parties hereto agree that an injunction may be issued in respect
thereof and, in particular, restraining such disposition, pending the
determination of such controversy, and that no bond or other security shall be
required in connection therewith. If any dispute arises hereunder, such right
shall be enforceable in a court of equity by a decree of specific performance.
Such remedy shall, however, not be exclusive and shall be in addition to any
other remedy which the parties may have.
<PAGE>
11.6 Definitions. As used in this Agreement:
(a) The word "interest" shall mean any interest
in the Company of any class now owned or hereafter acquired by the Members,
irrespective of the time and manner of such acquisition.
(b) The word "transfer" shall include the making
of any sale, exchange, assignment, gift, disposition by will or intestacy,
pledge or other encumbrance or security interest, and any other transfer or
disposition whatsoever, whether voluntary or involuntary, affecting title to or
right to possession of any interest in the Company.
11.7 Counterparts. This Operating Agreement may be
executed in two or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
11.8 Headings. The headings of this Operating Agreement
are intended solely for convenience of reference and shall be given no effect in
the construction or interpretation of this Operating Agreement.
11.9 Waiver. No waiver of any breach of any provision of this
Operating Agreement shall constitute a waiver of any other breach of that or of
any other provision hereof.
11.10 Entire Agreement; Modification. This writing, together
with the Performance Agreement, is the entire agreement of the parties hereto,
and may be changed or modified only by a writing executed by all of the parties.
11.11 Termination.
(a) This Operating Agreement shall terminate as
expressly provided elsewhere herein and shall terminate with respect to any
Member when such Member ceases to own an interest in the Company and shall
otherwise terminate upon dissolution and liquidation of the Company or upon
unanimous agreement of the Members.
(b) Without limiting the generality of the
foregoing, upon termination of the Performance Agreement the Company shall be
dissolved and liquidated and this Operating Agreement shall terminate unless the
Members unanimously agree otherwise.
<PAGE>
IN WITNESS WHEREOF, the Members acknowledge under penalties of
perjury that the matters and facts set forth in this Operating Agreement are
true and that they have signed this Operating Agreement on the respective dates
set forth below to be effective as of the date first above written.
MEMBERS:
GPU INTERNATIONAL, INC.
By:
Name: Bruce L. Levy
Title: President & Chief Executive Officer
ASTROPOWER, INC.
By:
Name:
Title:
Exhibit B-199
CERTIFICATE OF INCORPORATION
OF
GPU POWER IRELAND, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, upon the provisions and subject to the requirements of the laws of the
state of Delaware (particularly, Chapter 2, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the 'General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter referred to as the
-----
'Corporation') is GPU Power Ireland, Inc.
SECOND: The address, including street, number, city and county, of the
------
registered office of the Corporation in the State of Delaware is: 1013 Centre
Road, City of Wilmington 19805, County of New Castle: and the name of the
registered agent of the Corporation in the State of Delaware at such address is:
Corporation Service Company.
THIRD: The nature of the business and the purposes to be conducted and
------
promoted by the Corporation, are to conduct any lawful business, to promote any
lawful purpose, and 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 3,000. The par value of each such shares is one cent.
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
- ---- ---------------
Margaret Widdowson 1900 K Street, N.W.,
Suite 1200
Washington, DC 20006
SIXTH: The name and the mailing address of the persons who are to serve
------
as directors until the first annual meeting of the stockholders or until their
successors are elected and qualify are:
State of Delaware
Secretary of State
Division of Corporations
Filed 12:56 PM 1-/14/1997
971345827-2807634
<PAGE>
Name Mailing Address
---- ---------------
Wayne H. Thomson, Esq. 1 Upper Pond Road
Parsippany, NJ 02054
SEVENTH: The Corporation is to have perpetual existence.
--------
EIGHTH: The personal liability of the directors of the Corporation is
-------
hereby eliminated to the fullest extent permitted by the provisions of
paragraph (7) of subsection (b) of ss. 102 of the General Corporation Law of
the State of Delaware, as the same my be amended and supplemented.
NINTH: The Corporation shall, to the fullest extent permitted by the
------
provisions of Section 145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to Indemnify under said section from and
against any and all of the expenses, liabilities, or other matters referred to
in or covered by said section, and the indemnification provided for herein shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such a
person.
TENTH: From time to time any of the provisions of this certificate of
------
incorporation may be amended, altered, or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the Corporation by this
certificate of incorporation are granted subject to the provisions of this
Article TENTH.
ELEVENTH: The effective time of the certificate of incorporation of the
---------
Corporation and the time when the existence of the Corporation shall commence,
shall be upon filing of this certificate by the Secretary of State of the State
of Delaware.
Signed: October 10, 1997
----------------
Margaret Widdowson, Incorporator
Exhibit B-200
GPU POWER IRELAND, INC.
By-Laws
<PAGE>
BY-LAWS
1. The principal office of GPU POWER IRELAND, 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' Meeting
3. All meetings of stockholders shall be held at the principal office
of the Corporation or at such other place as shall be stated in the notice of
the meeting. Such meetings shall be presided over by the chief executive officer
of the Corporation, or, in his absence, by such other officer as shall have been
designated for the purpose by the Board of Directors, except when by statute the
election of a presiding officer is required.
4. Annual meetings of stockholders shall be held during the month of
May in each year on such day and at such time as shall be determined by the
Board of Directors and specified in the notice of the meeting. At the annual
meeting, the stockholders entitled to vote shall elect by ballot a Board of
Directors and transact such other business as may properly be brought before the
meeting. Prior to any meeting of stockholders at which an election of directors
is to be held, the Board of Directors shall appoint one judge of election to
serve at such meeting. If there be a failure to appoint a judge or if such judge
be absent or refuse to act or if his office becomes vacant, the stockholders
present at the meeting, by a per capita vote,
<PAGE>
shall choose temporary judges of the number required. No director or officer of
the Corporation shall be eligible to appointment or election as a judge.
5. Except as otherwise provided by law or by the Certificate of
Incorporation, the holders of a majority of the shares of stock of the
Corporation issued and outstanding and entitled to vote, present in person or by
proxy, shall be requisite for, and shall constitute a quorum at, any meeting of
the stockholders. If, however, the holders of a majority of such shares of stock
shall not be present or represented by proxy at any such meeting, the
stockholders entitled to vote thereat, present in person or by proxy, shall have
power, by vote of the holders of a majority of the shares of capital stock
present or represented at the meeting, to adjourn the meeting from time to time
without notice other than announcement at the meeting, until the holders of the
amount of stock requisite to constitute a quorum, as aforesaid, shall be present
in person or by proxy. At any adjourned meeting at which such quorum shall be
present, in person or by proxy, any business may be transacted which might have
been transacted at the meeting as originally noticed.
6. At each meeting of stockholders each holder of record of shares of
capital stock then entitled to vote shall be entitled to vote in person, or by
proxy appointed by instrument executed in writing by such stockholders or by his
duly authorized attorney; but no proxy shall be valid after the expiration of
eleven months from the date of its execution unless the stockholder executing it
shall have specified therein the length of time it is to continue in force,
which shall be for some specified period. At all elections of directors each
holder of record of shares of capital stock then entitled to vote, shall be
entitled to as many votes as shall equal the number of votes which (except for
such provision) he would be entitled to cast for the election of directors with
respect to his shares of stock multiplied by the number of directors to be
elected and he may cast all such votes for a single director or may distribute
them among the number to be voted for, or any two or more of them, as he may see
fit. Except as otherwise provided by law or by the Certificate of Incorporation,
each holder of record of shares of capital stock entitled to vote at any meeting
of stockholders shall be entitled to one vote for every share of capital stock
standing in his name on the books of the Corporation. Shares of capital stock of
the Corporation belonging to the Corporation or to a corporation controlled by
the Corporation through stock ownership or through majority representation on
the board of directors thereof, shall not be voted. All elections shall be
determined by a plurality vote, and, except as otherwise provided
<PAGE>
by law or by the Certificate of Incorporation all other matters shall be
determined by a vote of the holders of a majority of the shares of the capital
stock present or represented at a meeting and voting on such questions.
7. A complete list of the stockholders entitled to vote at any meeting
of stockholders, arranged in alphabetical order, with the residence of each, and
the number of shares held by each, shall be prepared by the Secretary and filed
in the principal office of the Corporation at least fifteen days before the
meeting, and shall be open to the examination of any stockholder at all times
prior to such meeting, during the usual hours for business, and shall be
available at the time and place of such meeting and open to the examination of
any stockholder.
8. Special meetings of the stockholders for any purpose or purposes,
unless otherwise prescribed by law, may be called by the Chairman or by the
President, and shall be called by the chief executive officer or Secretary at
the request in writing of any three members of the Board of Directors, or at the
request in writing of holders of record of ten percent of the shares of capital
stock of the Corporation issued and outstanding. Business transacted at all
special meetings of the stockholders shall be confined to the purposes stated in
the call.
9. (a) Notice of every meeting of stockholders, setting forth the time
and the place and briefly the purpose or purposes thereof, shall be mailed, not
less than ten nor more than fifty days prior to such meeting, to each
stockholder of record (at his address appearing on the stock books of the
Corporation, unless he shall have filed with the Secretary of the Corporation a
written request that notices intended for him be mailed to some other address,
in which case it shall be mailed to the address designated in such request) as
of a date fixed by the Board of Directors pursuant to Section 41 of the By-Laws.
Except as otherwise provided by law, the Certificate of Incorporation or the
By-Laws, items of business, in addition to those specified in the notice of
meeting, may be transacted at the annual meeting.
(b) Whenever by any provision of law, the vote of stockholders
at a meeting thereof is required or permitted to be taken in connection with any
corporate action, the meeting and vote of stockholders may be dispensed with, if
all the 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
<PAGE>
of law or of the Certificate of Incorporation under which the written consent of
the holders of less than all outstanding shares is sufficient for corporate
action
Directors
10. The business and affairs of the Corporation shall be managed by its
Board of Directors, which shall consist of not less than one nor more than nine
directors as shall be fixed from time to time by a resolution adopted by a
majority of the entire Board of Directors; provided, however, that no decrease
in the number of directors constituting the entire Board of Directors shall
shorten the term of any incumbent director. Each director shall be at least
twenty-one years of age. Directors need not be stockholders of the Corporation.
Directors shall be elected at the annual meeting of stockholders, or, if any
such election shall not be held, at a stockholders' meeting called and held in
accordance with the provisions of the General Corporation Law of the State of
Delaware. Each director shall serve until the next annual meeting of
stockholders and thereafter until his successor shall have been elected and
shall qualify.
11. In addition to the powers and authority by the By-Laws expressly
conferred upon it, the Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law or by the
Certificate of Incorporation, or by the By-Laws directed or required to be
exercised or done by the stockholders.
12. Unless otherwise required by law, in the absence of fraud no
contract or transaction between the Corporation and one or more of its directors
or officers, or between the Corporation and any corporation, partnership,
association or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for such reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors which
authorize the contract or transaction, or solely because his votes are counted
for such purpose if:
(a) The material facts as to his interest and as to the
contract or transaction are disclosed or are known to the
Board of Directors, and the Board in good faith authorizes the
contract or transaction by a vote sufficient for such purposes
without counting the vote of the interested director or
directors; or
<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 12, nor shall any such director be liable
to account because of such relation. For the purposes of this Section 12, the
term "affiliate" shall mean any corporation which is an "affiliate" of the
Corporation within the meaning of the Public Utility Holding Company Act of
1935, as said Act shall at the time be in effect.
Nothing herein shall create liability in any of the events described in
this Section 12 or prevent the authorization, ratification or approval, in any
other manner provided by law, of any contract or transaction described in this
Section 12.
Meetings of the Board of Directors
13. The first meeting of the Board of Directors, for the purpose of
organization, the election of officers, and the transaction of any other
business which may come before the meeting, shall be held on call of the
Chairman within one week after the annual meeting of stockholders. If the
Chairman shall fail to call such meeting, it may be called by the President or
by any director. Notice of such meeting shall be given in the manner prescribed
for Special Meetings of the Board of Directors.
<PAGE>
14. Regular meetings of the Board of Directors may be held without
notice except for the purpose of taking action on matters as to which notice is
in the By-Laws required to be given, at such time and place as shall from time
to time be designated by the Board, but in any event at intervals of not more
than three months. Special meetings of the Board of Directors may be called by
the Chairman or by the President or in the absence or disability of the Chairman
and the President, by a Vice President, or by any two directors, and may be held
at the time and place designated in the call and notice of the meeting.
15. Except as otherwise provided by the By-Laws, any item or business
may be transacted at any meeting of the Board of Directors, whether or not such
item of business shall have been specified in the notice of meeting. Where
notice of any meeting of the Board of Directors is required to be given by the
By-Laws, the Secretary or other officer performing his duties shall give notice
either personally or by telephone or telegraph at least twenty-four hours before
the meeting, or by mail at least three days before the meeting. Meetings may be
held at any time and place without notice if all the directors are present or if
those not present waive notice in writing either before or after the meeting.
16. At all meetings of the Board of Directors a majority of the
directors in office shall be requisite for, and shall constitute, a quorum for
the transaction of business, and the act of a majority of the directors present
at any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by law or by the
Articles of Incorporation, as amended, or by the By-Laws.
17. Any regular or special meeting may be adjourned to any time or
place by a majority of the directors present at the meeting, whether or not a
quorum shall be present at such meeting, and no notice of the adjourned meeting
shall be required other than announcement at the meeting.
Committees
18. The Board of Directors may, by the vote of a majority of the
directors in office, create an Executive Committee, consisting of two or more
members, of whom one shall be the chief executive officer of the Corporation.
The other members of the Executive Committee shall be designated by the Board of
Directors from their number, shall hold office for such period as the Board of
Directors shall determine and may be removed at any time by the Board of
Directors. When a member of the Executive Committee
<PAGE>
ceases to be a director, he shall cease to be a member of the Executive
Committee. The Executive Committee shall have all the powers specifically
granted to it by the By-Laws and, between meetings of the Board of Directors,
may also exercise all the powers of the Board of Directors except such powers as
the Board of Directors may exercise by virtue of Section 11 of the By-Laws. The
Executive Committee shall have no power to revoke any action taken by the Board
of Directors, and shall be subject to any restriction imposed by law, by the
By-Laws, or by the Board of Directors.
19. The Executive Committee shall cause to be kept regular minutes of
its proceedings, which may be transcribed in the regular minute book of the
Corporation, and all such proceedings shall be reported to the Board of
Directors at its next succeeding meeting, and the action of the Executive
Committee shall be subject to revision or alteration by the Board of Directors,
provided that no rights which, in the absence of such revision of alteration,
third persons would have had shall be affected by such revision or alteration. A
majority of the Executive Committee shall constitute a quorum at any meeting.
The Board of Directors may by vote of a majority of the total number of
directors provided for in Section 10 of the By-Laws fill any vacancies in the
Executive Committee. The Executive Committee shall designate one of its number
as Chairman of the Executive Committee and may, from time to time, prescribe
rules and regulations for the calling and conduct of meetings of the Committee,
and other matters relating to its procedure and the exercise of its powers.
20. From time to time the Board of Directors may appoint any other
committee or committees for any purpose or purposes, which committee or
committees shall have such powers and such tenure of office as shall be
specified in the resolution of appointment. The chief executive officer of the
Corporation shall be a member ex officio of all committees of the Board.
Compensation and Reimbursement of Directors
and Members of the Executive Committee
21. Directors, other than salaried officers of the Corporation or its
affiliates, shall receive compensation and benefits for their services as
directors, at such rate or under such conditions as shall be fixed from time to
time by the Board, and all directors shall be reimbursed for their reasonable
expenses, if any, of attendance at each regular or special meeting of the Board
of Directors.
<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 as shall be fixed from time to
time by the Board, and shall be reimbursed for their reasonable expenses, if
any, in attending meetings of the Executive Committee or such other Committees
of the Board and of otherwise performing their duties as members of such
Committees.
Officers
23. The officers of the Corporation shall be chosen by a vote of a
majority of the directors in office and shall be a President, one or more Vice
Presidents, a Treasurer, a Secretary, and a Comptroller, and may include a
Chairman, one or more Assistant Secretaries, one or more Assistant Treasurers,
and one or more Assistant Comptrollers. If a Chairman shall be chosen, the Board
of Directors shall designate either the Chairman or the President as chief
executive officer of the Corporation. If a Chairman shall not be chosen, the
President shall be the chief executive officer of the Corporation. The Chairman
and a President who is designated chief executive officer of the corporation
shall be chosen from among the directors. A President who is not chief executive
officer of the Corporation and none of the other officers need be a director.
Neither the Comptroller nor any Assistant Comptroller may occupy any other
office. With the above exceptions, any two offices may be occupied and the
duties thereof may be performed by one person, but no officer shall execute,
acknowledge or verify any instrument in more than one capacity.
24. The salary and other compensation of the chief executive officer of
the Corporation shall be determined from time to time by the Board of Directors.
The salaries and other compensation of all other officers of the Corporation
shall be determined from time to time by the chief executive officer, subject to
the concurrence of the Chairman.
25. The salary or other compensation of all employees other than
officers of the Corporation shall be fixed by the chief executive officer of the
Corporation or by such other officer as shall be designated for that purpose by
the Board of Directors.
26. The Board of Directors may appoint such officers and such
representatives or agents as shall be deemed necessary, who shall hold office
for such terms, exercise such powers, and perform such duties as shall be
determined from time to time by the Board of Directors.
<PAGE>
27. The officers of the Corporation shall hold office until the first
meeting of the Board of Directors after the next succeeding annual meeting of
stockholders and until their respective successors are chosen and qualify. Any
officer elected pursuant to Section 23 of the By-Laws may be removed at any
time, with or without cause, by the vote of a majority of the directors in
office. Any other officer and any representative, employee or agent of the
Corporation may be removed at any time, with or without cause, by action of the
Board of Directors, by the Executive Committee, or the chief executive officer
of the Corporation, or such other officer as shall have been designated for that
purpose by the chief executive officer of the Corporation.
The Chairman
28. (a) If a Chairman shall be chosen by the Board of Directors, he
shall preside at all meetings of the Board at which he shall be present.
(b) If a Chairman shall be chosen by the Board of Directors
and if he shall be designated by the Board as chief executive officer of the
Corporation:
(i) he shall have supervision, direction and control
of the conduct of the business of the Corporation,
subject, however, to the control of the Board of
Directors and the Executive Committee, if there be
one;
(ii) he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
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 Corporations;
(iii) he may, unless otherwise directed by the Board
of Directors pursuant to Section 38 of the By-Laws,
attend in person or by substitute or proxy appointed
by him and act and vote on behalf of the Corporation
at all meetings of stockholders of any corporation in
which the Corporation holds stock and grant any
consent, waiver, or power of attorney in respect of
such stock;
<PAGE>
(iv) he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v) he shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of Directors.
(c) If a Chairman shall be chosen by the Board of Directors
and if he shall not be designated by the Board as chief executive officer of the
Corporation.
(i) he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the 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
29. (a) If a Chairman shall not be chosen by the Board of Directors,
the President shall preside at all meetings of the Board at which he shall be
present.
(b) If the President shall be designated by the Board of
Directors as chief executive officer of the Corporation.
(i) he shall have supervision, direction and control
of the conduct of the business of the Corporation,
subject, however, to the control of the Board of
Directors and the Executive Committee if there be
one;
(ii) he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which
<PAGE>
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 38 of the By-Laws,
attend in person or by substitute or proxy appointed
by him and act and vote on behalf of the Corporation
at all meetings of the stockholders of any
corporation in which the Corporation holds stock and
grant any consent, waiver, or power of attorney in
respect of such stock;
(iv) he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v) he shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of Directors.
(c) If the Chairman shall be designated by the Board of
Directors as chief executive officer of the Corporation, the President,
(i) shall be the chief operating officer of the
Corporation;
(ii) shall have supervision, direction and control of
the conduct of the business of the Corporation, in
the absence or disability of the Chairman, subject,
however, to the control of the Board of Directors and
the Executive Committee, if there be one;
(iii) may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
<PAGE>
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(iv) at the request or in the absence or disability
of the Chairman, may, unless otherwise directed by
the Board of Directors pursuant to Section 38 of the
By-Laws, attend in person or by substitute or proxy
appointed by him and act and vote on behalf of the
Corporation at all meetings of the stockholders of
any corporation in which the Corporation holds stock
and grant any consent, waiver or power of attorney in
respect of such stock;
(v) at the request or in the absence or disability of
the Chairman, whenever in his opinion it may be
necessary or appropriate, shall prescribe the duties
of officers and employees of the Corporation whose
duties are not otherwise defined; and
(vi) shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of Directors.
Vice President
30. (a) The Vice President shall, in the absence or disability of the
President, if the President has been designated chief executive officer of the
Corporation or if the President is acting pursuant to the provisions of
Subsection 29(c)(ii) of the By-Laws, have supervision, direction and control of
the conduct of the business of the Corporation, subject, however, to the control
of the Directors and the Executive Committee, if there be one.
(b) He may sign in the name of and on behalf of the
Corporation any and all contracts, agreements or other instruments pertaining to
matters which arise in the ordinary course of business of the Corporation, and
when authorized by the Board of Directors or the Executive Committee, if there
be one, except in cases where the signing thereof shall be expressly delegated
by the Board of Directors or the Executive Committee to some other officer or
agent of the Corporation.
<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 29(c)(ii) of the By-Laws, at the request or in the
absence or disability of the President or in case of the failure of the
President to appoint a substitute or proxy as provided in Subsections 29(b)(iii)
and 29(c)(iv) of the By-Laws, unless otherwise directed by the Board of
Directors pursuant to Section 38 of the By-Laws, attend in person or by
substitute or proxy appointed by him and act and vote on behalf of the
Corporation at all meetings of the stockholders of any corporation in which the
Corporation holds stock and grant any consent, waiver or power of attorney in
respect of such stock.
(d) He shall have such other powers and perform such other
duties as may be prescribed from time to time by law, by the By-Laws, or by the
Board of Directors.
(e) If there be more than one Vice President, the Board of
Directors may designate one or more of such Vice Presidents as an Executive Vice
President or a Senior Vice President. The Board of Directors may assign to such
Vice Presidents their respective duties and may, if the President has been
designated chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 29(c)(ii) of the By-Laws,
designate the order in which the respective Vice Presidents shall have
supervision, direction and control of the business of the Corporation in the
absence or disability of the President.
The Secretary
31. (a) The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all votes and the
minutes of all proceedings in books to be kept for that purpose; and he shall
perform like duties for the Executive Committee and any other committees created
by the Board of Directors.
(b) He shall give, or cause to be given, notice of all
meetings of the stockholders, the Board of Directors, or the Executive Committee
of which notice is required to be given by law or by the By-Laws.
(c) He shall have such other powers and perform such other
duties as may be prescribed from time to time by law, by the By-Laws, or the
Board of Directors.
<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 45 of the By-Laws and in other instances where the
execution of documents on behalf of the Corporation is authorized by the By-Laws
or by the Board of Directors, may affix the seal to all instruments requiring it
and attest the ensealing and the execution of such instruments.
(f) He shall have control of the stock ledger, stock
certificate book and all books containing minutes of any meeting of the
stockholders, Board of Directors, or Executive Committee or other committee
created by the Board of Directors, and of all formal records and documents
relating to the corporate affairs of the Corporation.
(g) Any Assistant Secretary or Assistant 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
32. (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.
<PAGE>
(d) He shall exhibit at all reasonable times his accounts and
records to any director of the Corporation upon application during business
hours at the office of the Corporation where such accounts and records are kept.
(e) He shall render an account of all his transactions as
Treasurer at all regular meetings of the Board of Directors, or whenever the
Board may require it, and at such other times as may be requested by the Board
or by any director of the Corporation.
(f) If required by the Board of Directors, he shall give the
Corporation a bond, the premium on which shall be paid by the Corporation, in
such form and amount and with such surety or sureties as shall be satisfactory
to the Board, for the faithful performance of the duties of his office, and for
the restoration to the Corporation in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other property
of whatever kind in his possession or under his control belonging to the
Corporation.
(g) He shall perform all duties generally incident to the
office of Treasurer, and shall have other powers and duties as from time to time
may be prescribed by law, by the By-Laws, or by the Board of Directors.
(h) Any Assistant Treasurer or Assistant Treasurers shall
assist the Treasurer in the performance of his duties, shall exercise his powers
and duties at his request or in his absence or disability, and shall exercise
such other powers and duties as may be prescribed by the Board of Directors. If
required by the Board of Directors, any Assistant Treasurer shall give the
Corporation a bond, the premium on which shall be paid by the Corporation,
similar to that which may be required to be given by the Treasurer.
Comptroller
33. (a) The Comptroller of the Corporation shall be the principal
accounting officer of the Corporation and shall be accountable and report
directly to the Board of Directors. If required by the Board of Directors, the
Comptroller shall give the Corporation a bond, the premium on which shall be
paid by the 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.
<PAGE>
(b) He shall keep or cause to be kept full and complete books
of account of all operations of the Corporation and of its assets and
liabilities.
(c) He shall have custody of all accounting records of the
Corporation other than the record of receipts and disbursements and those
relating to the deposit or custody of money or securities of the Corporation,
which shall be in the custody of the Treasurer.
(d) He shall exhibit at all reasonable times his books of
account and records to any director of the Corporation upon application during
business hours at the office of the Corporation where such books of account and
records are kept.
(e) He shall render reports of the operations and business and
of the condition of the finances of the Corporation at regular meetings of the
Board of Directors, and at such other times as he may be requested by the Board
or any director of the Corporation, and shall render a full financial report at
the annual meeting of the stockholders, if called upon to do so.
(f) He shall receive and keep in his custody an original copy
of each written contract made by or on behalf of the Corporation.
(g) He shall receive periodic reports from the Treasurer of
the Corporation of all receipts and disbursements, and shall see that correct
vouchers are taken for all disbursements for any purpose.
(h) He shall perform all duties generally incident to the
office of Comptroller, and shall have such other powers and duties as from time
to time may be prescribed by law, by the By-Laws, or by the Board of Directors.
(i) Any Assistant Comptroller or Assistant Comptrollers shall
assist the Comptroller in the performance of his duties, shall exercise his
powers and duties at his request or in his absence or disability and shall
exercise such other powers and duties as may be conferred or required by the
Board of Directors. If required by the Board of Directors, any Assistant
Comptroller shall give the Corporation a bond, the premium on which shall be
paid by the Corporation, similar to that which may be required to be given by
the Comptroller.
<PAGE>
Vacancies
34. If the office of any director becomes vacant by reason of death,
resignation, retirement, disqualification, or otherwise, the remaining
directors, by the vote of a majority of those then in office at a meeting, the
notice of which shall have specified the filling of such vacancy as one of its
purposes may choose a successor, who shall hold office for the unexpired term in
respect of which such vacancy occurs. If the office of any officer of the
Corporation shall become vacant for any reason, the Board of Directors, at a
meeting, the notice of which shall have specified the filling of such vacancy as
one of its purposes, may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred. Pending action by the
Board of Directors at such meeting, the Board of Directors or the Executive
Committee may choose a successor temporarily to serve as an officer of the
Corporation.
Resignations
35. Any officer or any director of the Corporation may resign at any
time, such resignation to be made in writing and transmitted to the Secretary.
Such resignation shall take effect from the time of its acceptance, unless some
time be fixed in the resignation, and then from that time. Nothing herein shall
be deemed to relieve any officer from liability for breach of any contract of
employment resulting from any such resignation.
Duties of Officers May be Delegated
36. In case of the absence or disability of any officer of the
Corporation, or for any other reason the Board of Directors may deem sufficient,
the Board, by vote of a majority of the total number of directors provided for
in Section 10 of the By-Laws may, notwithstanding any provisions of the By-Laws,
delegate or assign, for the time being, the powers or duties, or any of them, of
such officer to any other officer or to any director.
Indemnification of Directors, Officers and Employees
37. (a) A director shall not be personally liable for monetary damages
as such for any action taken, or any failure to take any action, unless the
director has breached or failed to perform the duties of his office under the
General Corporation Law of the State of Delaware, and the breach or failure to
<PAGE>
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 unless the act or failure to act giving rise to the claim for
indemnification is finally determined by a court to have constituted willful
misconduct or recklessness.
(c) The Corporation shall pay the expenses (including
attorneys' fees and disbursements) actually and reasonably incurred in defending
a civil or criminal action, suit or proceeding on behalf of any person entitled
to indemnification under subsection (b) in advance of the final disposition of
such proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Corporation, and may pay such expenses in advance on
behalf of any agent on receipt of a similar undertaking. The financial ability
of such person to make such repayment shall not be a prerequisite to the making
of an advance.
(d) For purposes of this Section: (i) the Corporation shall be
deemed to have requested an officer, director, employee or agent to serve as
fiduciary with respect to an employee benefit plan where the performance by such
person of duties to the Corporation also imposes duties on, or otherwise
involves services by, such person of duties to the Corporation also imposes
duties on, or otherwise involves services by, such person as a fiduciary with
respect to the plan; (ii) excise taxes assessed with respect to any transaction
with an employee benefit plan shall be deemed "fines"; and (iii) action taken or
omitted
<PAGE>
by such person with respect to any employee benefit plan in the performance of
duties for a purpose reasonably believed to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the Corporation.
(e) To further effect, satisfy or secure the indemnification
obligations provided herein or otherwise, the Corporation may maintain
insurance, obtain a letter of credit, act as self-insurer, create a reserve,
trust, escrow, cash collateral or other fund or account, enter into
indemnification agreements, pledge or grant a security interest in any assets or
properties of the Corporation, or use any other mechanism or arrangement
whatsoever in such amounts, at such costs, and upon such other terms and
conditions as the Board of Directors shall deem appropriate.
(f) All rights of indemnification under this Section shall be
deemed a contract between the Corporation and the person entitled to
indemnification under this Section pursuant to which the Corporation and each
such person intend to be legally bound. Any repeal, amendment or modification
hereof shall be prospective only and shall not limit, but may expand, any rights
or obligations in respect of any proceeding whether commenced prior to or after
such change to the extent such proceeding pertains to actions or failures to act
occurring prior to such change.
(g) The indemnification, as authorized by this Section, shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any statute,
agreement, vote of shareholder, or disinterested directors or otherwise, both as
to action in an official capacity and as to action in any other capacity while
holding such office. The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section shall continue as to a person who has
ceased to be an officer, director, employee or agent in respect of matters
arising prior to such time, and shall inure to the benefit of the heirs,
executors and administrators of such person.
Stock of Other Corporations
38. The Board of Directors may authorize any director, officer or other
person on behalf of the Corporation to attend, act and vote at meetings of the
stockholders of any corporation in which the Corporation shall hold stock, and
to exercise thereat any and all of the rights and powers incident to the
ownership of such stock and to execute waivers of notice of such meetings and
calls therefor.
<PAGE>
Certificate of Stock
39. The certificates of stock of the Corporation shall be numbered and
shall be entered in the books of the Corporation as they are issued. They shall
exhibit the holder's name and number of shares and may include his address. No
fractional shares of stock shall be issued. Certificates of stock shall be
signed by the Chairman, President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary, and shall be
sealed with the seal of the Corporation. Where any certificate of stock is
signed by a transfer agent or transfer clerk, who may be but need not be an
officer or employee of the Corporation, and by a registrar, the signature of any
such Chairman, President, Vice President, Secretary, Assistant Secretary,
Treasurer, or Assistant Treasurer upon such certificate who shall have ceased to
be such before such certificate of stock is issued, it may be issued by the
Corporation with the same effect as if such officer had not ceased to be such at
the date of its issue.
Transfer of Stock
40. Transfers of stock shall be made on the books of the Corporation
only by the person named in the certificate or by attorney, lawfully constituted
in writing, and upon surrender of the certificate therefor.
Fixing of Record Date
41. The Board of Directors is hereby authorized to fix a time, not
exceeding fifty (50) days preceding the date of any meeting of stockholders or
the date fixed for the payment of any dividend or the making of any
distribution, or for the delivery of evidences of rights or evidences of
interests arising out of any change, conversion or exchange of capital stock, as
a record time for the determination of the stockholders entitled to notice of
and to vote at such meeting or entitled to receive any such dividend,
distribution, rights or interests as the case may be; and all persons who are
holders of record of capital stock at the time so fixed and no others, shall be
entitled to notice of and to vote at such meeting, and only stockholders of
record at such time shall be entitled to receive any such notice, dividend,
distribution, rights or interests.
<PAGE>
Registered Stockholders
42. The Corporation shall be entitled to treat the holder of record of
any share or shares of stock as the holder in fact thereof and accordingly shall
not be bound to recognize any equitable or other claim to, or interest in, such
share on the part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by statutes of the State of
Delaware.
Lost Certificates
43. Any person claiming a certificate of stock to be lost or destroyed
shall make an affidavit or affirmation of that fact, whereupon a new certificate
may be issued of the same tenor and for the same number of shares as the one
alleged to be lost or destroyed; provided, however, that the Board of Directors
may require, as a condition to the issuance of a new certificate, the payment of
the reasonable expenses of such issuance or the furnishing of a bond of
indemnity in such form and amount and with such surety or sureties, or without
surety, as the Board of Directors shall determine, or both the payment of such
expenses and the furnishing of such bond, and may also require the advertisement
of such loss in such manner as the Board of Directors may prescribe.
Inspection of Books
44. The Board of Directors may determine whether and to what extent,
and at what time the places and under what conditions and regulations, the
accounts and books of the Corporation (other than the books required by statute
to be open to the inspection of stockholders), or any of them, shall be open to
the inspection of stockholders, and no stockholder shall have any right to
inspect any account or book or document of the Corporation, except as such right
may be conferred by statutes of the state of Delaware or by the By-Laws or by
resolution of the Board of Directors or of the stockholders.
Checks, Notes, Bonds and Other Instruments
45. (a) All checks or demands for money and notes of the Corporation
shall be signed by such person or persons (who may but need not be an officer of
officers of the Corporation) as the Board of Directors may from time to time
designate, either directly or through such officers of the Corporation as shall,
by
<PAGE>
resolution of the Board of Directors, be authorized to designate such person or
persons. If authorized by the Board of Directors, the signatures of such
persons, or any of them, upon any checks for the payment of money may be made by
engraving, lithographing or printing thereon a facsimile of such signatures, in
lieu of actual signatures, and such facsimile signatures so engraved,
lithographed or printed thereon shall have the same force and effect as if such
persons had actually signed the same.
(b) All bonds, mortgages and other instruments requiring a
seal, when required in connection with matters which arise in the ordinary
course of business or when authorized by the Board of Directors, shall be
executed on behalf of the Corporation by the Chairman or the President or a Vice
President, and the seal of the Corporation shall be thereupon affixed by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer,
who shall, when required, attest the ensealing and execution of said instrument.
If authorized by the Board of Directors, a facsimile of the seal may be employed
and such facsimile of the seal may be engraved, lithographed or printed and
shall have the same force and effect as an impressed seal. If authorized by the
Board of Directors, the signatures of the Chairman or the President or a Vice
President and the Secretary or an Assistant Secretary or the Treasurer or
Assistant Treasurer upon any engraved, lithographed or printed bonds,
debentures, notes or other instruments may be made by engraving, lithographing
or printing thereon a facsimile of such signatures, in lieu of actual
signatures, and such facsimile signatures so engraved, lithographed or printed
thereon shall have the same force and effect as if such officers had actually
signed the same. In case any officer who has signed, or whose facsimile
signature appears on, any such bonds, debentures, notes or other instruments
shall cease to be such officer before such bonds, debentures, notes or other
instruments shall have been delivered by the Corporation, such bonds,
debentures, notes or other instruments may nevertheless be adopted by the
Corporation and be issued and delivered as though the person who signed the
same, or whose facsimile signature appears thereon, had not ceased to be such
officer of the Corporation.
Receipts for Securities
46. All receipts for stocks, bonds or other securities received by the
Corporation shall be signed by the Treasurer or an Assistant Treasurer, or by
such other person or persons as the Board of Directors or Executive Committee
shall designate.
<PAGE>
Fiscal Year
47. The fiscal year shall begin the first day of January in each year.
Dividends
48. (a) Dividends in the form of cash or securities, upon the capital
stock of the Corporation, to the extent permitted by law may be declared by the
Board of Directors at any regular or special meeting.
(b) The Board of Directors shall have power to fix and
determine, and from time to time to vary, the amount to be reserved as working
capital; to determine whether any, and if any, what part of any, surplus of the
Corporation shall be declared as dividends; to determine the date or dates for
the declaration and payment or distribution of dividends; and, before payment of
any dividend or the making of any distribution to set aside out of the surplus
of the Corporation such amount or amounts as the Board of Directors from time to
time, in its absolute discretion, may think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for such other purpose as it
shall deem to be in the interest of the Corporation.
Directors' Annual Statement
49. The Board of Directors shall present or cause to be presented at
each annual meeting of stockholders, and when called for by vote of the
stockholders at any special meeting of the stockholders, a full and clear
statement of the business and condition of the Corporation.
Notices
50. (a) Whenever under the provisions of the By-Laws notice is required
to be given to any director, officer of stockholder, it shall not be construed
to require personal notice, but, except as otherwise specifically provided, such
notice may be given in writing, by mail, by depositing a copy of the same in a
post office, letter box or mail chute, maintained by the United States Postal
Service, postage prepaid, addressed to such stockholder, officer or director, at
his address as the same appears on the books of the Corporation.
<PAGE>
(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
51. At any meeting of the Board of Directors or the Executive Committee
or any other committee designated by the Board of Directors, one or more
directors may participate in such meeting in lieu of attendance in person by
means of the conference telephone or similar communications equipment by means
of which all persons participating in the meeting will be able to hear and
speak.
Oath of Judges of Election
52. The judges of election appointed to act at any meeting of the
stockholders shall, before entering upon the discharge of their duties, be sworn
faithfully to execute the duties of judge at such meeting with strict
impartiality and according to the best of their ability.
Amendments
53. The By-Laws may be altered or amended by the affirmative vote of
the holders of a majority of the capital stock represented and entitled to vote
at a meeting of the stockholders duly held, provided that the notice of such
meeting shall have included notice of such proposed amendment. The By-Laws may
also be altered or amended by the affirmative vote of a majority of the
directors in office at a meeting of the Board of Directors, the notice of which
shall have included notice of the proposed amendment. In the event of the
adoption, amendment, or repeal of any By-Law by the Board of Directors pursuant
to this Section, there shall be set forth in the notice of the next meeting of
stockholders for the election of directors the By-Law so adopted, amended, or
repealed together with a concise statement of the changes made. By the
affirmative vote of the holders of a majority of the capital stock represented
and entitled to vote at such meeting, the By-Laws may, without further notice,
be altered or amended by amending or repealing such action by the Board of
Directors.
Exhibit B-201
Form 204
MALLESONS STEPHEN JAQUES (LB 33
ATTN: FIONA MCKENNA
LVL 27
525 COLLINS ST
MELBOURNE VIC 3000,
Cerfificate of Registration
of a Company
Corporations Law Sub-section 121(l)
This is to certify that
AUSTRAN INVESTMENTS PTY LTD
Australian Company Number 080 325 711
is a registered company under Division 1 or Part 2.2 of the Corporations Law of
Victoria and because of its registration it is an incorporated company.
The company is limited by shares.
The company is a proprietary company.
The day of commencement of registration is the fifteenth day Of October 1997.
Given under the seal of the
Australian Securities Commission
on this fifteenth day of October,1997.
Alan Cameron
Chairman
Exhibit B-202
Corporations Law of Victoria
Memorandum
and
Articles of Association
of
AUSTRAN INVESTMENTS PTY LTD
A Company Limited by Shares
MALLESONS STEPHEN JAQUES
Solicitors
Rialto
Level 28, North Tower
525 Collins Street
Melbourne Vic 3000
Telephone (03) 9643 4000
Fax (03) 9643 5999
DX 101 Melbourne
<PAGE>
Corporations Law of Victoria
Memorandum of Association
of
AUSTRAN INVESTMENTS PTY LTD
A Company Limited by Shares
1. The name of the company is AUSTRAN INVESTMENTS PTY LTD
2. The capital of the company is $10,000,000 divided into:
2 ordinary shares of $1.00 each;
9,999,998 unclassified shares;
3. The liability of the members of the company is limited.
The subscriber whose name and address is set out below wishes to form a company
under this memorandum of association and respectively agrees to take the number
of shares in the capital of the company set out opposite its name.
Austran Holdings, Inc. Two ordinary shares of $1.00 each
State of Delaware
1013 Centre Road
City of Wilmington
United States of America
Date: 13 October 1997
Signed by David Brauer
Proper Officer
Austran Holdings, Inc.
<PAGE>
AUSTRAN INVESTMENTS PTY LTD
Index of Articles of Association
1 Preliminary 2
2 Share capital and variation of rights 4
3 Lien 7
4 Calls on shares 9
5 Transfer of shares 10
6 Transmission of shares 11
7 Forfeiture of shares 13
8 Conversion of shares into stock 15
9 Alteration of capital 16
10 General meetings 17
11 Proceedings at general meetings 19
12 The Directors 25
13 Powers and duties of Directors 29
14 Proceedings of Directors 30
15 Secretary 35
16 Common seal and official seal 36
17 Inspection of records 37
18 Dividends and reserves 37
19 Capitalisation of profits 40
20 Notices 41
21 Winding up 42
22 Indemnity 43
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Corporations Law of Victoria
Articles of Association
of
AUSTRAN INVESTMENTS PTY LTD
A Company Limited by Shares
1. Preliminary
Definitions
1.1 The following words have these meanings in these
Articles unless the contrary intention appears.
Alternate Director means a person appointed as alternate
director under Article 14.6;
Articles means these articles of association as amended from
time to time, and a reference to a particular article has a
corresponding meaning;
Auditor means the auditor or auditors for the time being of
the Company;
Company means the abovenamed company;
Director means a director for the time being of the Company,
and where appropriate includes an Alternate Director;
Executive Director means a person appointed as executive
director under Article 14.29;
Managing Director means a person appointed as a managing
director under Article 14.29,
Member means a person for the time being entered in the
Register as a member of the Company,
Register means the register of members of the Company to be
kept under the Corporations Law and if appropriate includes a
branch register;
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Registered Office means the registered office for the time
being of the Company;
Secretary means a person appointed by the Directors under
Article 15.1 to perform the duties of secretary of the
Company; and
State means the State or Territory in which the Company is
from time to time incorporated.
Interpretation
1.2 In these Articles:
(a) words importing any gender include all other genders;
(b) the word person includes a firm, a body corporate, an
unincorporated association or an authority;
(c) the singular includes the plural and vice versa and
(d) a reference to a statute or code or the Corporations
Law (or to a provision of same) means the statute,
code or the Corporations Law (or provision of same)
as modified or amended and in operation for the time
being, or any statute, code or provision enacted
(whether by the State or the Commonwealth of
Australia) in its place and includes any regulation
or rule for the time being in force under the
statute, code or the Corporations Law.
1.3 Unless the contrary intention appears in these Articles, an
expression has, in a provision of these Articles that deals
with a matter dealt with by a particular provision of the
Corporations Law, the same meaning as in that provision of the
Corporations Law.
1.4 Headings are inserted for convenience and do not affect the
interpretation of these Articles.
Table A not to apply
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1.5 The regulations contained in Table A in Schedule I to the
Corporations Law do not apply to the Company.
Proprietary company
1.6 The Company is a proprietary company and accordingly
(a) the right to transfer shares is restricted under
these Articles;
(b) the number of Members of the Company (excluding
employees of the Company or a subsidiary and former
employees who while in the employment of the Company
or a subsidiary became and have continued to be
Members) is limited to 50 and joint holders of a
share are counted as one person;
(c) 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
prohibited, and
(d) any invitation to the public to deposit money with,
and any offer to the public to accept deposits of
money with, the Company is prohibited.
2 Share capital and variation of rights
Directors to issue shares
2.1 Without prejudice to any special rights previously conferred
on the holders of any existing shares or class of shares but
subject to the Corporations Law, or as the Company in general
meeting may when authorizing any issue of shares otherwise
direct, shares in the Company are under the control of the
Directors who may allot or dispose of all or any of the same
to such persons at such times and on such terms and conditions
and having attached to them such preferred, deferred or other
special rights or such restrictions, whether with regard to
dividend, voting, return of capital or otherwise and at a
premium or at par or at a discount as the Directors think fit.
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2.2 The Directors have the right to grant to any person options or
other securities with rights of conversion to shares or
pre-emptive rights to any shares for any consideration and for
any period.
Preference shares
2.3 The Company may not issue any preference shares nor may any
issued shares be converted into preference shares unless the
rights of the holders of the preference shares with respect to
repayment of capital, participation in surplus assets and
profits, cumulative or non-cumulative dividends, voting and
priority of payment of capital and dividends in relation to
other shares or other classes of preference shares are set out
in the Articles. Subject to the Corporations Law, preference
shares may, with the sanction of a resolution of the Company
in general meeting, be issued on the terms that they are, or
at the option of the Company are, liable to be redeemed.
Variation of rights
2.4 If at any time the share capital is divided into different
classes of shares, the rights attached to any class may
(unless otherwise provided by the terms of issue of the shares
of that class), whether or not the Company is being wound up,
be varied or abrogated in any way with the consent in writing
of the holders of three-quarters of the issued shares of that
class, or with the sanction of a special resolution passed at
a separate meeting of the holders of the shares of that class.
2.5 The provisions of these Articles relating to general meetings
apply so far as they are capable of application and with the
necessary changes to every separate meeting of the holders of
a class of shares except that:
(a) a quorum is constituted by two persons who, between
them, hold or represent one-third of the issued
shares of the class; and
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(b) any holder of shares of the class, present in person
or by proxy, attorney or representative appointed
under Article 11.2 may demand a poll.
2.6 The rights conferred on the holders of the shares of any class
are not deemed to be varied by the creation or issue of
further shares ranking equally with the first-mentioned shares
unless otherwise:
(a) expressly provided by the terms of issue of the
first-mentioned shares; or
(b) required by the Corporations Law.
Commission and brokerage
2.7 The Company may exercise the power to pay brokerage or
commission conferred by the Corporations Law. The rate or the
amount of the brokerage or commission paid or agreed to be
paid must be disclosed in the manner required by the
Corporations Law.
2.8 The total brokerage and commission must-not exceed 10% of the
total amount payable on allotment of the shares in respect of
which the commission is paid.
2.9 The brokerage or commission may be satisfied by the payment of
cash or by the allotment of fully or partly paid shares or
other securities or partly by the payment of cash and partly
by the allotment of fully or partly paid shares or other
securities.
Recognition and disclosure of interests
2.10 Except as required by law, the Company is not bound or
compelled in any way to recognize a person as holding a share
on any trust.
2.11 The Company is not bound by or compelled in any way to
recognize (whether or not it has notice of the interest or
rights concerned) any equitable, contingent future or partial
interest in any share or unit of a share or (except as
otherwise provided by these Articles or by law) any other
right in respect of a share except an absolute right of
ownership in the registered holder.
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Right to share and option certificate
2.12 A person whose name is entered as a Member in the Register or
as an optionholder in the register of options is entitled
without payment to receive a certificate in respect of the
shares or options registered in the person's name under the
seal of the Company in accordance with the Corporations Law
but,
in respect of shares or options held jointly by several
persons, the Company is not bound to issue more than one
certificate.
2.13 Delivery of a certificate for a share to one of several joint
holders is sufficient delivery to all such holders.
Joint holders of shares
2.14 Where two or more persons are registered as the joint holders
of shares they are deemed to hold the shares as joint tenants.
3 Lien
Lien on share
3.1 The Company has a first and paramount lien on every share
(other than a fully paid share) for all money (whether
presently payable or not) called or payable at a fixed time in
respect of that share and such lien extends to all dividends,
rights and other distributions from time to time declared paid
or made in respect of that share.
3.2 The Company also has a first and paramount lien on all shares
(other than fully paid shares) registered in the name of a
Member for all money presently payable by that Member to the
Company and all money which the Company may be called on by
law to pay in respect of the shares of that Member.
3.3 The Directors may at any time exempt a share wholly or in part
from the provisions of Articles 3.1 and 3.2.
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Sale under lien
3.4 Subject to Article 3.5, the Company may sell, in such manner
as the Directors think fit, any share on which the Company has
a lien as if the share was forfeited.
3.5 A share on which the Company has a lien may not be sold by the
Company unless:
(a) a sum in respect of which the lien exists is
presently payable; and
(b) the Company has, not less than 14 days before the
date of sale, given to the registered holder for the
time being of the share or the person entitled to the
share by reason of the death or bankruptcy of the
registered holder, a notice in writing setting out,
and demanding payment of, such part of the amount in
respect of which the lien exists as is presently
payable.
Transfer on sale under lien
3.6 For the purpose of giving effect to a sale mentioned in
Article 3.4, the Company may receive. the consideration (if
any) given for the share so sold and may execute a transfer of
the share sold in favour of the person to whom the share is
sold.
3.7 The Company must register the transferee as the holder of the
share comprised in any such transfer and the transferee is not
bound to see to the application of the purchase money.
3.8 The title of the transferee to the share is not affected by
any irregularity or invalidity in connection with the sale of
the share.
Proceeds of sale
3.9 The proceeds of a sale mentioned in Article 3.4 must be
applied by the Company in payment of such part of the amount
in respect of which the lien exists as is presently payable,
and the residue (if any) must (subject to any like lien for
sums not presently
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payable that existed on the share before the sale) be paid to
the person entitled to the share at the date of the sale.
4 Calls on shares
Directors to make calls
4.1 The Directors may make calls on a Member in respect of any
money unpaid on the shares of the Member (whether on account
of the nominal value of the shares or by way of premium) and
not by the terms of issue of those shares made payable at
fixed times.
4.2 The Directors may revoke or postpone a call.
Time of call
4.3 A call is deemed to be made at the time when the resolution of
the Directors authorising the call is passed
Members' liability
4.4 On receiving at least 14 days' notice specifying the time or
times and place of payment, each Member must pay to the
Company at the time or times and place so specified the amount
called on the Member's shares.
4.5 The joint holders of a share are jointly and severally liable
to pay all calls in respect of the share.
4.6 The non-receipt of a notice of any call by, or the accidental
omission to give notice of a call to, a Member does not
invalidate the call.
Interest on default
4.7 If a sum called in respect of a share is not paid before or on
the day appointed for payment of the sum, the person from whom
the sum is due must pay interest on the sum to the time of
actual payment at the rate, not exceeding 20% per annum,
determined by the
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Directors, but the Directors may waive payment of that
interest wholly or in part.
Fixed installments deemed calls
4.8 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, is deemed
for the purposes of these Articles to be a call duly made and
payable on the date on which by the terms of issue the sum
becomes payable, and, in case of nonpayment, 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.
Differentiation between shareholders as to calls
4.9 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.
Prepayment of calls
4.10 The Directors may accept from a Member the whole or a part of
the amount unpaid on a share although no part of that amount
has been called.
4.11 The Directors may authorise payment by the Company of interest
on the whole or any part of an amount so accepted, until the
amount becomes payable, at such rate, not exceeding the
prescribed rate, as is agreed on between the Directors and the
Member paying the sum.
4.12 For the purposes of Article 4.11, the prescribed rate of
interest is:
(a) if the Company has, by resolution, fixed a rate - the rate
so fixed; and
(b) in any other case - 20% per annum.
5 Transfer of shares
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Forms of instrument of transfer
5.1 Subject to these Articles, a Member may transfer all or any of
the Member's shares by instrument in writing in any usual or
common form or in any other form that the Directors approve.
5.2. An instrument of transfer referred to in Article 5.1 must be
executed by or on behalf of both the transferor and the
transferee
Registration procedure
5.3 The instrument of transfer must be left for registration at
the Registered Office accompanied by the certificate for the
shares to which it relates and such information as the
Directors properly require to show the right of the transferor
to make the transfer, and in that event, the Company must,
subject to the powers vested in the Directors by these
Articles, register the transferee as a shareholder.
5.4 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 and a transfer of shares does not pass the right to any
dividends declared on the shares until such registration.
Directors may decline to register
5.5 The Directors may decline to register any transfer of shares,
without being bound to give any reason whatsoever for so
doing.
6 Transmission of shares
Transmission of shares on death of holder
6.1 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 the deceased
was a sole holder, are the only persons recognised by the
Company as having any title
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to the deceased's 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 the deceased with other persons.
Right to registration on death or bankruptcy
6.2 Subject to the Bankruptcy Act 1966, a person becoming entitled
to a share in consequence of the death or bankruptcy of a
Member may, on such information being produced as is properly
required by the Directors, either elect to be registered as
holder of the share or nominate another person to be
registered as the transferee of the share. Where the surviving
joint holder becomes entitled to a share in consequence of the
death of a Member the Directors must, on satisfactory evidence
of that death being produced to them, direct the Register to
be altered accordingly.
6.3 If the person becoming entitled elects to be registered as
holder of the share under Article 6.2 the person must deliver
or send to the Company a notice in writing signed by the
person in such form as the Directors approve stating that the
person so elects.
6.4 If the person becoming entitled nominates another person to be
registered as the transferee of the share under Article 6.2
the person must execute a transfer of the share to the other
person.
6.5 All the limitations, restrictions and provisions of these
Articles relating to the right to transfer, and the
registration of transfer of, shares are applicable to any such
notice or transfer as if the death or bankruptcy of the Member
had not occurred and the notice or transfer were a transfer
signed by that Member.
Effect of transmission
6.6 If the registered holder of a share dies or becomes bankrupt,
the personal representative or the trustee of the estate of
the registered holder, as the case may be, is, on the
production of such information as is properly required by the
Directors, entitled to the
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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 the registered holder had not died or become
bankrupt.
6.7 If two or more persons are jointly entitled to any share in
consequence of the death of the registered holder, they are,
for the purpose of these Articles, deemed to be joint holders
of the share.
7 Forfeiture of shares
Notice requiring payment of call
7.1 If a Member fails to pay a call or instalment of a call on the
day appointed for payment of the call or instalment, the
Directors may, at any time thereafter during such time as any
part of the call or instalment remains unpaid, serve a notice
on the Member requiring payment of so much of the call or
instalment as is unpaid, together with any interest that has
accrued and all costs and expenses that may have been incurred
by the Company by reason of such non-payment.
7.2 The notice must name a further day (not earlier than the
expiration of 14 days from the date of service of the notice)
on or before which the payment required by the notice is to be
made and must state that, in the event of nonpayment at or
before the time appointed, the shares in respect of which the
call was made will be liable to be forfeited.
Forfeiture for failure to comply with notice
7.3 If the requirements of a notice served under Article 7.1 are
not complied with, any share in respect of which the notice
has been given may at any time thereafter, before the payment
required by the notice has been made, be forfeited by a
resolution of the Directors to that effect.
7.4 Such a forfeiture includes all dividends declared in respect
of the forfeited shares and not actually paid before the
forfeiture.
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7.5 Any share forfeited under Article 7.3 may be sold, re-allotted
or otherwise disposed of to whom and on such terms and
conditions, subject to the Corporations Law, as the Directors
think fit.
7.6 If any share is forfeited under Article 7.3 notice of the
forfeiture must be given to the Member holding the share
immediately prior to the forfeiture and an entry of forfeiture
with the date thereof must be made in the Register.
Cancellation of forfeiture
7.7 At any time before a sale or disposition of a share, the
forfeiture of that share may be cancelled on such terms as the
Directors think fit.
Effect of forfeiture on former holder's liability
7.8 A person whose shares have been forfeited ceases to be a
Member in respect of the forfeited shares, but remains liable
to pay the Company all money that, at the date of forfeiture,
was payable by that person to the Company in respect of the
shares (including interest at the rate, not exceeding 20% per
annum, determined by the Directors from the date of forfeiture
on the money for the time being unpaid if the Directors think
fit to enforce payment of the interest and also expenses
owing), but that person's liability ceases if and when the
Company receives payment in full of all money (including
interest and expenses) so payable in respect of the shares
Evidence of forfeiture
7.9 A statement in writing declaring that the person making the
statement is a director or a secretary of the Company, and
that a share in the Company has been duly forfeited in
accordance with the Articles on the date stated in the
statement, is prima facie evidence of the facts stated in the
statement as against all persons claiming to be entitled to
the share.
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Transfer of forfeited share
7.10 The Company may receive the consideration (if any) given for a
forfeited share on any sale or disposition of the share and
may execute a transfer of the share in favour of the person to
whom the share is sold or disposed of
7.11 On the execution of the transfer, the transferee must be
registered as the holder of the share and is not bound to see
to the application of any money paid as consideration.
7.12 The title of the transferee to the share is not affected by
any irregularity or invalidity in connection with the
forfeiture, sale or disposal of the share.
8 Conversion of shares into stock
Company may convert shares into stock
8.1 The Company may, by resolution in general meeting, convert all
or any of its paid up shares into stock and re-convert any
stock into paid up shares of any nominal value.
Transfer of stock
8.2 Subject to Article 8.3, when shares have been converted into
stock, the provisions of these Articles relating to the
transfer of shares apply, so far as they are capable of
application, to the transfer of the stock or of any part of
the stock.
8.3 The Directors may fix the minimum amount of stock transferable
and restrict or forbid the transfer of fractions of that
minimum, but the minimum must not exceed the aggregate of the
nominal values of the shares from which the stock arose.
Stockholders' rights
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8.4 The holders of stock have, according to the amount of the
stock held by them, the same rights, privileges and advantages
as regards dividends, voting at meetings of the Company and
other matters as they would have if they held the shares from
which the stock arose.
8.5 No privilege or advantage (except participation in the
dividends and profits of the Company and in the property of
the Company on winding up) is conferred by any amount of stock
that would not, if existing in shares, have conferred that
privilege or advantage.
Application of Article to stock
8.6 The provisions of these Articles that are applicable to paid
up shares apply to stock, and references in those provisions
to share and Member include references to stock and
stockholder respectively.
9 Alteration of capital
Company's power to alter capital
9.1 The Company in general meeting may by resolution:
(a) increase its authorised share capital by the creation
of new shares of such amount as is specified in the
resolution;
(b) consolidate and divide all or any of its authorised
share capital into shares of a larger amount than its
existing shares;
(c) subdivide all or any of its shares into shares of a
smaller amount than its existing shares but so that
in the subdivision the proportion between the amount
paid and the amount (if any) unpaid on each such
share of a smaller amount is the same as it was in
the case of the share from which the share of a
smaller amount is derived; and
(d) cancel shares that, at the date of the passing of the
resolution, have not been taken or agreed to be taken
by any person or have been forfeited and reduce its
authorised share capital by the amount of the shares
so cancelled.
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Reduction of capital
9.2 Subject to the Corporations Law, the Company in general
meeting may, by special resolution, reduce its share capital,
any capital redemption reserve fund or any share premium
account.
10 General meetings
Annual general meeting
10.1 Annual general meetings of the Company are to be held in
accordance with the Corporations Law.
General meeting
10.2 The Directors may convene a general meeting of the
Company whenever they think fit.
Notice of general meeting
10.3 Subject to the provisions of the Corporations Law relating to
special resolutions and agreements for shorter notice, at
least 14 days' notice (exclusive of the day on which the
notice is served or deemed to be served and of the day for
which notice is given) specifying the place, day and the hour
of the meeting and, in the case of special business, the
general nature of that business, must be given to such persons
as are entitled to receive notices from the Company.
The non-receipt of notice of a general meeting by, or the
accidental omission to give notice of a general meeting to, a
person entitled to receive notice does not invalidate any
resolution passed at the general meeting.
Special business of general meeting
10.4 All business that is transacted at a general meeting is
special with the exception at an annual general meeting of the
declaration of a dividend, the consideration of the accounts
and the reports of the Directors and the Auditor, the
appointment of the Auditor and the election of Directors.
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Requisitioned meeting
10.5 The Directors must, on the written requisition of
(a) not less than 100 Members holding shares in the
Company on which there has been paid up an average
sum, per Member, of not less than $200; or
(b) a Member who is entitled or Members who are together
entitled, to not less than 5% of the total voting
rights of all Members having at the date of the
deposit of the requisition a right to vote at general
meetings;
immediately convene a general meeting of the Company to be
held as soon as practicable but, in any case, not later than
two months after the deposit of the requisition.
Objects of requisitioned meeting
10.6 The requisition for a general meeting must state the
objects of the meeting and must be signed by the
requisitionists and deposited at the Registered Office, and
may consist of several documents in like form each signed by
one or more of the requisitionists.
Convening requisitioned meeting
10.7 If the Directors do not within 21 days after the deposit of
the requisition, proceed to convene a general meeting the
requisitionists or any of them representing more than one-half
of the total voting rights of all of them may themselves, in
the same manner as nearly as possible as that in which
meetings are to be convened by the Directors, convene a
meeting, but a meeting so convened may not be held after the
expiration of three months from the date of the deposit of the
requisition.
Expenses of requisitioned meeting
10.8 Any reasonable expenses incurred by the requisitionists by
reason of the failure of the Directors to convene a
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general meeting must be paid to the requisitionists by the
Company and any sum so paid must be retained by the Company
out of any sums due or to become due from the Company by way
of fees or other remuneration in respect of their services to
such of the Directors as were in default.
Postponement or cancellation of meeting
10.9 The Directors may postpone or cancel any general meeting
whenever they think fit (other than a meeting convened as a
result of a requisition under Article 10.5 or by
requisitionists under Article 10.7)
11 Proceedings at general meetings
Representation of Member
11.1 Any Member may be represented at any meeting of the Company by a proxy
or attorney.
11.2 If a body corporate is a Member it may also, by resolution of
its directors or other governing body, authorise such person
as it thinks fit to act as its representative either at a
particular general meeting or at all general meetings of the
Company or of any class of Members
11.3 A person authorised under Article 11.2 is, in accordance with
that authority and until it is revoked by the body corporate,
entitled to exercise the same powers on behalf of the body
corporate as the body corporate could exercise if it were a
natural person who was a Member.
11.4 Unless the contrary intention appears, a reference to a Member
in the succeeding provisions of this Part 11 means a Member, a
proxy or attorney of a Member or a person appointed under
Article 11.2 to represent a body corporate which is a Member.
Quorum
11.5 No business may be transacted at any general meeting unless a
quorum is present comprising two Members
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present in person or by proxy, attorney or representative
appointed under Article 11.2 and entitled to vote at the
meeting. If a quorum is present at the beginning of a meeting
it is deemed present throughout the meeting unless the
chairman of the meeting otherwise declares, on the chairman's
own motion or at the instance of a Member, proxy, attorney or
representative appointed under Article 11.2.
Failure to achieve quorum
11.6 If a meeting is convened on the requisition of Members and a
quorum is not present within half an hour from the time
appointed for the meeting, the meeting must be dissolved.
11.7 If a meeting is convened in any other case and a quorum is not
present within half an hour from the time appointed for the
meeting:
(a) the meeting must be adjourned to such day, time and
place as the Directors determine or if no
determination is made by them to the same day in the
next week at the same time and place; and
(b) if at the adjourned meeting a quorum is not present
within half an hour from the time appointed for the
meeting the meeting must be dissolved.
Appointment and powers of chairman of general meeting
11.8 If the Directors have elected one of their number as chairman
of their meetings, that person must preside as chairman at
every general meeting.
11.9 If a general meeting is held and:
(a) a chairman has not been elected as provided by
Article 11.8; or
(b) the chairman is not present within 15 minutes after
the time appointed for the holding of the meeting or
is unable or unwilling to act,
then the deputy chairman elected under Article 14.16 (if any)
must act as chairman of the meeting. If there
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is no such person or that person is absent or unable or
unwilling to act, the Directors present must elect one of
their number to be chairman of the meeting, or, if no Director
is present or if all Directors present decline to take the
chair, the Members present must elect one of their number to
be chairman of the meeting.
Adjournment of general meeting
11.10 The chairman may, with the consent of any meeting at which a
quorum is present and must if so directed by the meeting,
adjourn the meeting from day to day, time to time and from
place to place, but no business may be transacted at any
adjourned meeting other than the business left unfinished at
the meeting from which the adjournment took place.
11.11 When a meeting is adjourned for 3O days or more, notice of
the adjourned meeting must be given as in the case of an
original meeting.
11.12 Except as provided by Article 11.11, it is not necessary to
give any notice of an adjournment or of the business to be
transacted at any adjourned meeting.
Voting at general meeting
11.13 At any general meeting a resolution put to the vote of the
meeting must 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:
(a) by the chairman;
(b) by not less than five Members having the right to
vote at the meeting;
(c) by a Member or Members present who are together
entitled to not less than 10% of the total voting
rights of all the Members having the right to vote at
the meeting; or
(d) by a Member or Members present and holding shares in
the Company conferring a right to vote at the
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meeting, being shares on which an aggregate sum has
been paid up equal to not less than 10% of the total
sum paid up on all the shares conferring that right.
Unless a poll is properly demanded, a declaration by the
chairman that a resolution has on a show of hands been carried
or carried unanimously, or by a particular majority, or lost,
and an entry to that effect in the book containing the minutes
of the proceedings of the Company, is conclusive evidence of
the fact without proof of the number or proportion of the
votes recorded in favour of or against the resolution.
Questions decided by majority
11.14 Subject to the requirements of the Corporations Law in
relation to special resolutions, a resolution is taken to be
carried if the proportion that the number of votes in favour
of the resolution bears to the total number of votes on the
resolution exceeds one half.
Poll
11.15 If a poll is properly demanded, it must be taken in such
manner and (subject to Article 11.16) either at once or
after an interval or adjournment or otherwise as the
chairman directs, and the result of the poll is the
resolution of the meeting at which the poll was demanded.
11.16 A poll demanded on the election of a chairman. or on a
question of adjournment must be taken immediately.
11.17 The demand for a poll may be withdrawn.
Equality of votes
11.18 If there is an equality of votes, whether on a show of hands
or on a poll, the chairman of the meeting is not entitled to
a casting vote in addition to any votes to which the
chairman is entitled as a Member or proxy or attorney or
representative of a Member.
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Entitlement to vote
11.19 Subject to any rights or restrictions for the time being
attached to any class or classes of shares and to these
Articles:
(a) on a show of hands every person present who is a
Member or a proxy, attorney or representative of a
Member has one vote; and
(b) on a poll every person present who is a Member or
proxy, attorney or representative of a Member has one
vote for each share that the person holds or
represents (as the case may be).
Joint shareholders' vote
11.20 In the case of joint holders of a share in the Company the
vote of the senior who tenders a vote, whether in person or
by proxy, attorney or representative, must be accepted to
the exclusion of the votes of the other joint holders and,
for this purpose, seniority is determined by the order in
which the names stand in the Register.
Vote of shareholder of unsound mind
11.21 If a Member is of unsound mind or is a person whose person
or estate is liable to be dealt with in any way under the
law relating to mental health then the Member's committee or
trustee or such other person as properly has the management
of the Member's estate may exercise any rights of the Member
in relation to a general meeting as if the committee,
trustee or other person were the Member.
Effect of unpaid call
11.22 A Member is not entitled to vote at a general meeting unless
all calls and other sums presently payable by the Member in
respect of shares in the Company have been paid.
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Objection to voting qualification
11.23 An objection may be raised to the qualification of a voter
only at the meeting or adjourned meeting at which the vote
objected to is given or tendered.
11.24 Any such objection must be referred to the chairman of the
meeting, whose decision is final.
11.25 A vote not disallowed under such an objection is valid
for all purposes.
Appointment of proxy
11.26 An instrument appointing a proxy must be in writing under
the hand of the appointor or of the appointor's attorney
duly authorised in writing or, if the appointor is a
corporation, either under seal or under the hand of an
officer or attorney duly authorised. A proxy need not be a
Member.
11.27 An instrument appointing a proxy may specify the manner in
which the proxy is to vote in respect of a particular
resolution and, if an instrument of proxy so provides, the
proxy is not entitled to vote on the resolution except as
specified in the instrument.
11.28 An instrument appointing a proxy is deemed to confer
authority to demand or join in demanding a poll.
11.29 An instrument appointing a proxy must be in the form
approved by the Directors from time to time.
Deposit of proxy and other instruments
11.30 An instrument appointing a proxy may not be treated as valid
unless the instrument, and the power of attorney or other
authority (if any) under which the instrument is signed or a
copy of that power or authority certified as a true copy by
statutory declaration is or are received by the Company not
less than 48 hours before the time for holding the meeting
or adjourned meeting at which the person named in the
instrument proposes to vote at the
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Registered Office or at such other place as is specified for
that purpose in the notice convening the meeting.
Validity of vote in certain circumstances
11.31 A vote given in accordance with the terms of an instrument
of proxy or of a power of attorney is valid notwithstanding
the previous death or unsoundness of mind of the principal,
the revocation of the instrument (or of the authority under
which the instrument was executed) or of the power, or the
transfer of the share in respect of which the instr-ument or
power is given, if no intimation in writing of the death,
unsoundness of mind, revocation or transfer his been
received by the Company at its Registered Office before the
commencement of the meeting or adjourned meeting at which
the instrument is used or the power is exercised.
Director entitled to notice of meeting
11.32 A Director is entitled to receive notice of and to attend
all general meetings and all separate general meetings of
the holders of any class of shares in the Company and is
entitled to speak at those meetings.
Resolution in writing
11.33 Subject to the provisions of the Corporations Law, a
resolution in writing signed by all the Members is as valid
and effectual as if it had been passed at a general meeting
of the Company duly convened and held at the time at which
the written resolution was last signed by a Member. Any such
resolution may consist of several documents in like form
each signed by one or more Members.
12 The Directors
Number of Directors
12.1 The number of Directors must not be less than one. The names
of the first Directors will be determined in
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writing by the subscriber to the memorandum of association
of the Company and those Directors will continue in office
subject to these Articles. The Company in general meeting
may, by resolutions increase or reduce the number of
Directors.
Share qualification of Directors
12.2 A Director is not required to hold any share in the Company.
Appointment of Director
12.3 The Company in general meeting may by resolution and the
Directors may at any time appoint any person to be a Director,
either to fill a casual vacancy or as an addition to the
existing Directors, but so that the total number of Directors
does not at any time exceed the number determined in
accordance with Article 12.1
Removal of Director
12.4 The Company in general meeting may by resolution remove any
Director from office and may by resolution appoint another
person in that Director's stead.
Remuneration of Directors
12.5 The Directors may be paid such remuneration as is determined
from time to time by the Company in general meeting. That
remuneration is deemed to accrue from day to day. A Director
who retires, and is not reappointed in accordance with these
Articles, may be paid a retirement benefit in recognition of
past services in the amount determined by the Directors, but
not exceeding the amount permitted by the Corporations Law.
12.6 The Directors may also be paid all travelling and other
expenses properly incurred by them in attending, participating
in 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 business of the Company
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Director's interests
12.7 No Director is disqualified by the Director's office and the
fiduciary relationship established by it from holding any
office or place of profit (other than that of Auditor) under
the Company. Any Director may (subject to the Corporations
Law).
(a) be or become a director of or otherwise hold office
or a place of profit in any other company promoted by
the Company or in which the Company may be interested
as vendor. shareholder or otherwise;
(b) contract or make any arrangement with the Company
whether as vendor, purchaser, broker, solicitor or
accountant or other professional person or otherwise
and any contract or arrangement entered or to be
entered into by or on behalf of the Company in which
any Director is in any way interested is not avoided
for that reason; and
(c) participate in any association institution, fund,
trust or scheme for past or present employees or
Directors of the Company, a related body corporate or
any of their respective predecessors in business or
their dependants; or persons connected with them.
12.8 Any Director who:
(a) holds any office or place of profit under the
Company;
(b) holds any office or place of profit referred to in
Article 12.7(a);
(c) is involved in a contract or arrangement referred to
in Article 12.7(b); or
(d) participates in an association or otherwise under
Article 12.7(c),
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is not by reason only of any of those facts or any interest
resulting from it or the fiduciary relationship established by
it liable to account to the Company for any remuneration or
other benefits accruing from it.
12.9 Each Director must disclose that Director's interest to the
Company in accordance with the Corporations Law and the
Secretary must record any such declaration in the minutes of
the relevant meeting.
12.10 A Director may only vote in respect of any contract or
proposed contract or arrangement in which the Director has a
material interest if the Director has first disclosed the
interest to the Directors in accordance with the
Corporations Law and if the Director is not permitted to
vote under this Article but does so vote then that vote may
not be counted. Directors may vote in respect of a contract
for insurance of the company or its officers against a
liability incurred by officers as officers of the Company or
a related body corporate.
12.11 The restrictions contained in Article 12.10 may at any time
or times be suspended or relaxed to any extent and either
prospectively or retrospectively by resolution of the
Company in general meeting.
12.12 A Director or a Director's firm may act in a professional
capacity (other than as Auditor) for the Company and a
Director or a Director's firm is entitled to remuneration
for professional services as if the relevant Director was
not a Director.
12.13 A Director may, notwithstanding the Director's interest, and
whether or not the Director is entitled to vote or does
vote, participate in the execution of any instrument by or
on behalf of the Company and whether through signing or
sealing the same or otherwise.
Vacation of office of Director
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12.14 In addition to the circumstances in which the office of a
Director becomes vacant under the Corporations Law, the
office of a Director becomes vacant if the Director:
(a) becomes of unsound mind or a person whose person or
estate is liable to be dealt with in any way under
the law relating to mental health,
(b) resigns from the office by notice in writing to the
Company; or
(c) is absent without the consent of the remaining
Directors from meetings of the Directors held during
a period of six months.
13 Powers and duties of Directors
Directors to manage Company
13.1 Subject to the Corporations Law and to any other provision of
these Articles the business of the Company is managed by the
Directors, who may exercise all such powers of the Company as
are not, by the Corporations Law or by these Articles,
required to be exercised by the Company in general meeting.
13.2 Without limiting the generality of Article 13.1, the Directors
may exercise all the powers of the Company to borrow or raise
money, to charge any property or business of the Company or
all or any of its uncalled capital and to issue debentures or
give any other security for a debt, liability or obligation of
the Company or of any other person.
Appointment of attorney
13.3 The Directors may, by power of attorney, appoint any person or
persons to be the attorney or attorneys of the Company for
such purposes, with such powers, authorities and discretions
(being powers, authorities and discretions vested in or
exercisable by the Directors), and for such period and subject
to such conditions as they think fit.
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13.4 Any such power of attorney may contain such provisions for the
protection and convenience of persons dealing with the
attorney as the Directors think fit and may also authorise the
attorney to delegate all or any of the powers, authorities and
discretions vested in the attorney.
Minutes
13.5 The Directors must cause minutes to be made:
(a) of the names of the Directors present at or involved
in all general meetings and all meetings of the
Directors; and
(b) of all proceedings of general meetings and of
meetings of Directors, and cause those minutes to be
entered, within one month after the relevant meeting
is held, in the minute book.
13.6 The minutes referred to in Article 13.5 must be signed by the
chairman of the meeting at which the proceedings took place or
by the chairman of the next succeeding meeting.
Execution of Company cheques etc
13.7 All cheques, promissory notes, bankers' drafts, bills of
exchange and other negotiable instruments, and all receipts
for money paid to the Company, must be signed, drawn, accepted
endorsed or otherwise executed, as the case may be, in such
manner and by such persons as the Directors determine from
time to time.
14 Proceedings of Directors
Directors' meetings
14.1 The Directors may meet together for the despatch of business
and adjourn and otherwise regulate their meetings as they
think fit.
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14.2 A Director may at any time, and the Secretary must on the
requisition of a Director, convene a meeting of the Directors.
Questions decided by majority
14.3 Subject to these Articles, questions arising at a meeting of
Directors are to be decided by a majority of votes of
Directors involved and voting and any such decision is for a
purposes deemed a decision of the Directors.
14.4 An Alternate Director involved in any meeting of Directors has
one vote for each Director for which that person is an
Alternate Director and if that person is a Director also has
one vote as a Director.
14.5 In the event of an equality of votes the chairman of the
meeting does not have a casting vote.
Alternate Directors
14.6 A Director may appoint a person (whether a Member of the
Company or not) to be an Alternate Director in the Director's
place during such period as the Director thinks fit.
14.7 An Alternate Director is entitled to notice of all meetings of
the Directors and, if the appointor is not involved in such a
meeting, is entitled to participate and vote in the
appointor's stead.
14.8 An Alternate Director may exercise any powers that the
appointor may exercise and in the exercise of any such power
the Alternate Director is an officer of the Company and is not
deemed an agent of the appointor.
14.9 An Alternate Director is not required to hold any share in the
Company.
14.10 An Alternate Director is subject in all respects to the
conditions attaching to the Directors generally except that
an Alternate Director is not entitled to any remuneration
under Article 12.5 otherwise than from the Alternate
Director's appointor.
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14.11 The appointment of an Alternate Director may be terminated
at any time by the appointor notwithstanding that the period
of the appointment of the Alternate Director has not
expired, and terminates in any event if the appointor
vacates office as a Director.
14.12 An appointment, or the termination of an appointment, of an
Alternate Director must be effected by a notice in writing
signed by the Director who makes or made the appointment and
served on the Company.
14.13 The notice of appointment or termination of appointment of
an Alternate Director may be served on the Company by
leaving it at the Registered Office or by forwarding it by
facsimile transmission to the Registered Office and in the
case of a facsimile transmission, the appearance at the end
of the message of the name of the Director appointing or
terminating the appointment is sufficient evidence that the
Director has signed the notice.
Quorum for Directors' meetings
14.14 At a meeting of Directors, the number of Directors whose
involvement is necessary to constitute a quorum is two,
unless the Company has only one director, or such greater
number as is determined by the Directors from time to time.
Notwithstanding Article 12.10, a Director who has a material
interest in any contract or proposed contract or arrangement
may be counted in the quorum involved in any Directors'
meeting at which such contract, proposed contract or
arrangement is considered.
Remaining Directors may act
14.15 In the event of a vacancy or vacancies in the office of a
Director or offices of Directors, the remaining Director or
Directors may act but, if the number of remaining Directors
is not sufficient to constitute a quorum at a meeting of
Directors, they may act only for the purpose of:
(a) increasing the number of Directors to a number
sufficient to constitute such a quorum; or
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(b) convening a general meeting of the Company.
Chairman of Directors
14.16 The Directors must elect one of their number as chairman of
their meetings and may determine the period for which the
person elected as chairman is to hold office. The Directors
may also elect one of their number as deputy-chairman of
their meetings and may determine the period for which the
person elected as deputy-chairman is to hold office.
14.17 When a Directors' meeting is held and:
(a) a chairman has not been elected as provided by
Article 14.16; or
(b) the chairman is not present within ten minutes after
the time appointed for the holding of the meeting or
is unable or unwilling to act, the deputy-chairman
(if any) must act as chairman of the meeting. If
there is no such person or that person is absent or
unable or unwilling to act, the Directors involved
must elect one of their number to be a chairman of
the meeting.
Directors' committees
14.18 The Directors may delegate any of their powers, other than
powers required by law to be dealt with by the directors as
a board, to a committee or committees consisting of at least
one of their number and such other persons as they think
fit.
14.19 A committee to which any powers have been so delegated must
exercise the powers delegated in accordance with any
directions of the Directors and a power so exercised is
deemed to have been exercised by the Directors.
14.20 The members of such a committee may elect one of their
number as chairman of their meetings.
14.21 If such a meeting is held and:
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(a) a chairman has not been elected as provided by
Article 14.20; or
(b) the chairman is not present within ten minutes after
the time appointed for the holding of the meeting or
is unable or unwilling to act
the members involved may elect one of their number to be
chairman of the meeting.
14.22 A committee may meet and adjourn as it thinks proper.
14.23 Questions arising at a meeting of a committee are to be
determined by a majority of votes of the members involved
and voting.
14.24 In the event of there being an equality of votes, the
chairman, in addition to the chairman's deliberative vote,
has a casting vote.
Written resolution by Directors
14.25 A resolution in writing signed by all the Directors who are
eligible to vote on the resolution is as valid and effectual
as if it had been passed at a meeting of the Directors held
at the time when the written resolution was last signed by
an eligible Director. Any such resolution may consist of
several documents in like form, each signed by one or more
Directors.
Directors' meetings defined
14.26 The Directors may conduct meetings without Directors being
in the physical presence of other Directors provided that
all the Directors involved in the meeting are able
simultaneously to hear each other and to participate in
discussion.
14.27 Article 14.26 applies to meetings of Directors' committees
as if all members were Directors.
Validity of acts of Directors
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14.28 All acts done by any meeting of the Directors or of a
committee of Directors or by any person acting as a Director
are, notwithstanding that it is afterwards discovered that
there was some defect in the appointment of a person to be a
Director or a member of the committee, or to act as a
Director, or that a person so appointed was disqualified, as
valid as if the person had been duly appointed and was
qualified to be a Director or to be a member of the
committee.
Appointment of Managing and Executive Directors
14.29 The Directors may from time to time appoint one or more of
their number to the office of Managing Director or Executive
Director for such period and on such terms as they think
fit, and, subject to the terms of any agreement entered into
in a particular case, may revoke any such appointment.
Remuneration of Managing and Executive Directors
14.30 A Managing Director or Executive Director may, subject to
the terms of any agreement entered into in a particular
case, receive such remuneration (whether by way of salary,
commission or participation in profits, or partly in one way
and partly in another) as the Directors determine.
Powers of Managing and Executive Directors
14.31 The Directors may, on such terms and conditions and with
such restrictions as they think fit, confer on a Managing
Director or an Executive Director any of the powers
exercisable by them.
14.32 Any powers so conferred may be concurrent with, or be to the
exclusion of, the powers of the
Directors.
14.33 The Directors may at any time withdraw or vary any of the
powers so conferred on a Managing Director or an Executive
Director.
15 Secretary
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Appointment of Secretary
15.1 There must be at least one Secretary of the Company who may be
appointed by the Directors for such term, at such remuneration
and on such conditions as they think fit.
Suspension and removal of Secretary
15.2 The Directors have power to suspend or remove a Secretary.
Powers and duties of Secretary
15.3 The Directors may vest in a Secretary such powers, duties and
authorities as they may from time to time determine and a
Secretary must exercise all such powers and authorities
subject at all times to the control of the Directors.
Secretary to attend meetings
15.4 A Secretary is entitled to participate all meetings of the
Directors an all general meetings of the Company and may be
heard on any matter.
16 Common seal and official seal
Custody of common seal
16.1 The Directors must provide for the safe custody of the
common seal.
Use of common seal
16.2 The common seal may be used only by the authority of the
Directors, or of a committee of the Directors authorised by
the Directors to authorise the use of the common seal, and
every document to which the common seal is affixed must be
signed by a Director and be countersigned by another Director,
a Secretary or
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another person appointed by the Directors to countersign that
document or a class of documents in which that document is
included.
16.2A The sole director, if only one person is appointed to the
office of director and that person is also the sole secretary
of the Company, may be the sole signatory to documents to
which the common seal is affixed.
Use of official seals
16.3 The Company may have for use outside the State in place of the
common seal one or more official seals, each of which must be
a facsimile of the common seal with the addition on its face
of the name of every place where it is to be used.
16.4 The Company may by writing under its common seal empower a
person in a place either generally or in respect of a
specified matter to affix its official seal for that place to
any instrument to which the Company is a party.
17 Inspection of records
Inspection by Members
17.1 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 to the inspection of Members other than
Directors, and a Member other than a Director does not have
the right to inspect any document of the Company except as
provided by law or authorised by the Directors or by the
Company in general meeting.
18 Dividends and reserves
Declaration of final dividend
18.1 Subject to the rights of persons (if any) entitled to shares
with special rights to dividend, the Directors may declare a
final dividend out of profits in accordance with the
Corporations Law and may authorise the payment or crediting by
the Company to the Members of such a dividend.
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Directors may authorise interim dividend
18.2 The Directors may authorise the payment or crediting by the
Company to the Members of such interim dividends as appear to
the Directors to be justified by the profits of the Company.
No interest on dividends
18.3 Interest may not be paid by the Company in respect of any
dividend, whether final or interim.
Reserves and profits carried forward
18.4 The Directors may, before declaring any dividend, set aside
out of the profits of the Company such sums as they think
proper as reserves, to be applied, at the discretion of the
Directors, for any purpose for which the profits of the
Company may be properly applied.
18.5 Pending any such application, the reserves may, at the
discretion of the Directors, be used in the business of the
Company or be invested in such investments as the Directors
think fit.
18.6 The Directors may carry forward so much of the profits
remaining as they consider ought not to be distributed as
dividends without transferring those profits to a reserve.
Calculation and apportionment of dividends
18.7 Subject to the rights of persons (if any) entitled to shares
with special rights to dividend and to the terms of any issue
of shares to the contrary all dividends are to be declared and
paid according to the amounts paid or credited as paid on the
shares in respect of which the dividend is paid, and are to 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.
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18.8 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 on the
share for the purposes of Article 18.7.
Deductions from dividends
18.9 The Directors may deduct from any dividend payable to a Member
all sums of money (if any) presently payable by that Member to
the Company on account of calls or otherwise in relation to
shares in the Company.
Distribution of specific assets
18.10 The Directors, when paying or declaring a dividend, may
direct payment of a dividend wholly or partly by the
distribution of specific assets, including paid up shares in
or debentures of, any other corporation.
18.11 If a difficulty arises in regard to such a distribution, the
Directors may settle the matter as they consider expedient
and fix the value for distribution of the specific assets or
any part of those assets and may determine that cash
payments will be made to any Members on the basis of the
value so fixed in order to adjust the rights of all parties,
and may vest any such specific assets in trustees as the
Directors consider expedient. If a distribution of specific
assets to a particular Member or Members is illegal or, in
the Directors' opinion, impracticable then the Directors may
make a cash payment to that Member or Members on the basis
of the cash amount of the dividend instead of the
distribution of specific assets.
Payment by cheque and receipts from joint holders
18.12 Any dividend, interest or other money payable in cash in
respect of shares may be paid by cheque sent through the
post directed:
(a) to the address of the holder as shown in the Register
or, in the case of joint holders, to the
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address shown in the Register as the address of the
joint holder first named in the Register; or
(b) to such other address as the holder or joint
holders in writing directs or direct.
18.13 Any one of two or more joint holders may give effectual
receipts for any dividends, interest or other money payable
in respect of the shares held by them as joint holders.
Unclaimed dividends
18.14 All dividends declared but unclaimed may be invested by the
Directors as they think fit for the benefit of the Company
until claimed or until required to be dealt with in
accordance with any law relating to unclaimed moneys.
19 Capitalisation of profits
Capitalisation of reserves and profits
19.1 The Directors may resolve that it is desirable to capitalise
any sum, being the whole or a 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 that the sum is applied, in any
of the ways mentioned in Article 19.2, for the benefit of
Members in the proportions to which those Members would have
been entitled in a distribution of that sum by way of
dividend.
19.2 The ways in which a sum may be applied for the benefit of
Members under Article 19.1 are:
(a) in paying up any amounts unpaid on shares held by
Members;
(b) in paying up in full unissued shares debentures to be
issued to Members as fully paid; or
(c) partly as mentioned in paragraph (a) and partly
as mentioned in paragraph (b).
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19.3 The Directors may do all things necessary to give effect to
the resolution and, in particular, to the extent necessary to
adjust the rights of the Members among themselves, may:
(a) issue fractional certificates or make cash payments
in cases where shares or debentures become issuable
in fractions; and
(b) authorise any person to make, on behalf of all or any
of the Members entitled to any further shares or
debentures on the capitalisation, an agreement with
the Company providing for the issue to them, credited
as fully paid up, of any such further shares or
debentures or for the payment up by the Company on
their behalf of the amounts or any part of the
amounts remaining unpaid on their existing shares by
the application of their respective proportions of
the sum resolved to be capitalised, and any such
agreement is effective and binding on all the Members
concerned.
20 Notices
Services of notices
20.1 A notice may be given by the Company to any Member or other
person receiving notice under these Articles either by serving
it on the person personally or by sending it by post or
facsimile transmission to the person at their address as shown
in the Register or the address supplied by the person to the
Company for the giving of notices to the person.
20.2 If a notice is sent by post service of the notice is deemed to
be effected by properly addressing, prepaying, and posting a
letter containing the notice, and the notice is deemed to have
been served on the day after the date of its posting.
20.3 If a notice is sent by facsimile transmission, service of the
notice is deemed to be effected by properly addressing the
facsimile transmission and transmitting same and to have been
served on the day following its despatch.
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20.4 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 in
the Register in respect of the share.
20.5 Every person who by operation of law, transfer or other means
whatsoever becomes entitled to any share is absolutely bound
by every notice given in accordance with this Article to the
person from whom that person derives title prior to
registration of that person's title in the Register.
Persons entitled to notice of general meeting
20.6 Notice of every general meeting must be given in a manner
authorised by Article 20.1 and in accordance with the
Corporations Law to:
(a) every Member;
(b) every Director and Alternate Director; and
(c) the Auditor.
20.7 No other person is entitled to receive notices of
general meetings.
21 Winding up
Distribution of assets
21.1 If the Company is wound up, the liquidator may, with the
sanction of a special resolution of the Company, divide among
the Members in kind the whole or any part of the property of
the Company and may for that purpose set such value as the
liquidator considers fair on any property to be so divided and
may determine how the division is to be carried out as between
the Members or different classes of Members.
21.2 The liquidator may, with the sanction of a special resolution
of the Company, vest the whole or any part of any such
property in trustees on such trusts for the benefit of the
contributories as the liquidator thinks fit but so that no
Member is compelled to accept any shares or other securities
in respect of which there is any liability.
42
<PAGE>
22 Indemnity
Indemnity of officers
22.1 Every person who is or has been a director, secretary or
executive officer of the Company and its Related Bodies
Corporate may, if the Directors so determine, be indemnified,
to the maximum extent permitted by law, out of the property of
the Company against any liabilities for costs and expenses
incurred by that person:
(a) in defending any proceedings relating to that
person's position with the Company, whether civil or
criminal, in which judgment is given in that person's
favour or in which that person is acquitted or which
are withdrawn before judgment; or
(b) in connection with any administrative proceedings
relating to that person's position with the Company,
except proceedings which give rise to civil or
criminal proceedings against that person in which
judgment is not given in that person's favour or in
which that person is not acquitted or which arise out
of conduct involving a lack of good faith; or
(c) in connection with any application in relation to any
proceedings relating to that person's position with
the Company, whether civil or criminal, in which
relief is granted to that person under the
Corporations Law by the court.
22.2 Every person who is or has been a director, secretary or
executive officer of the Company and its Related Bodies
Corporate may, if the Directors so determine, be indemnified,
to the maximum extent permitted by law, out of the property of
the Company against any liability to another person (other
than the Company or its Related Bodies Corporate) as such an
officer unless the liability arises out of conduct involving a
lack of good faith.
22.3 The Company may pay a premium for a contract insuring a person
who is or has been a director, secretary or executive officer
of the Company and its Related Bodies Corporate against:
43
<PAGE>
(a) any liability incurred by that person as such an
officer which does not arise out of conduct involving
a wilful breach of duty in relation to the Company or
a contravention of sections 232(5) or (6) of the
Corporations Law; and
(b) any liability for costs and expenses incurred by that
person in defending proceedings relating to that
person's position with the Company, whether civil or
criminal, and whatever their outcome.
44
<PAGE>
The persons whose name and address is subscribed, being the subscriber to the
Memorandum of Association, hereby agrees to the foregoing Articles of
Association.
Austran Holdings, Inc. Two ordinary shares of $1.00 each
State of Delaware
1013 Centre Road
City of Wilmington
United States of America
Date: 15 October 1997
Signed by David Brauer
Proper Officer
Austran Holdings, Inc.
45
<PAGE>
Contents
1 Preliminary 2
Definitions 2
Interpretation 3
Table A not to apply 3
Proprietary company 4
2 Share capital and variation of rights 4
Directors to issue shares 4
Preference shares 5
Variation of rights 5
Commission and brokerage 6
Recognition and disclosure of interests 6
Right to share and option certificate 7
Joint holders of shares 7
3 Lien 7
Lien on share 7
Sale under lien 8
Transfer on sale under lien 8
Proceeds of sale 8
4 Calls on shares 9
Directors to make calls 9
Time of call 9
Members' liability 9
Interest on default 9
Fixed instalments deemed calls 10
Differentiation between shareholders as to calls 10
Prepayment of calls 10
5 Transfer of shares 10
Forms of instrument of transfer 11
Registration procedure 11
Directors may decline to register 11
6 Transmission of shares 11
Transmission of shares on death of holder 11
Right to registration on death or bankruptcy 12
Effect of transmission 12
<PAGE>
7 Forfeiture of shares 13
Notice requiring payment of call 13
Forfeiture for failure to comply with notice 13
Cancellation of forfeiture 14
Effect of forfeiture on former holder's
liability 14
Evidence of forfeiture 14
Transfer of forfeited share 15
8 Conversion of shares into stock 15
Company may convert shares into stock 15
Transfer of stock 15
Stockholders' rights 15
Application of Articles to stock 16
9 Alteration of capital 16
Company's power to alter capital 16
Reduction of capital 17
10 General meetings 17
Annual general meeting 17
General meeting 17
Notice of general meeting 17
Special business of general meeting 17
Requisitioned meeting 18
Objects of requisitioned meeting 18
Convening requisitioned meeting 18
Expenses of requisitioned meeting 18
Postponement or cancellation of meeting 19
11 Proceedings at general meetings 19
Representation of Member 19
Quorum 19
Failure to achieve quorum 20
Appointment and powers of chairman
of general meeting 20
Adjournment of general meeting 21
Voting at general meeting 21
Questions decided by majority 22
Poll 22
Equality of votes 22
Entitlement to vote 23
Joint shareholders' vote 23
Vote of shareholder of unsound mind 23
Effect of unpaid call 23
Objection to voting qualification 24
Appointment of proxy 24
<PAGE>
Deposit of proxy and other instruments 24
Validity of vote in certain circumstances 25
Director entitled to notice of meeting 25
Resolution in writing 25
12 The Directors 25
Number of Directors 25
Share qualification of Directors 26
Appointment of Director 26
Removal of Director 26
Remuneration of Directors 26
Director's interests 27
Vacation of office of Director 28
13 Powers and duties of Directors 29
Directors to manage Company 29
Appointment of attorney 29
Minutes 30
Execution of Company cheques etc 30
14 Proceedings of Directors 30
Directors' meetings 30
Questions decided by majority 31
Alternate Directors 31
Quorum for Directors' meetings 32
Remaining Directors may act 32
Chairman of Directors 33
Directors' committees 33
Written resolution by Directors 34
Directors' meetings defined 34
Validity of acts of Directors 34
Appointment of Managing and Executive Directors 35
Remuneration of Managing and Executive Directors 35
Powers of Managing and Executive Directors 35
15 Secretary 35
Appointment of Secretary 36
Suspension and removal of Secretary 36
Powers and duties of Secretary 36
Secretary to attend meetings 36
16 Common seal and official seal 36
Custody of common seal 36
Use of common seal 36
Use of official seals 37
<PAGE>
17 Inspection of records 37
Inspection by Members 37
18 Dividends and reserves 37
Declaration of final dividend 37
Directors may authorise interim dividend 38
No interest on dividends 38
Reserves and profits carried forward 38
Calculation and apportionment of dividends 38
Deductions from dividends 39
Distribution of specific assets 39
Payment by cheque and receipts from joint
holders 39
Unclaimed dividends 40
19 Capitalisation of profits 40
Capitalisation of reserves and profits 40
20 Notices 41
Service of notices 41
Persons entitled to notice of general meeting 42
21 Winding up 42
Distribution of assets 42
22 Indemnity 43
Indemnity of officers 43
Exhibit B-203
Form 204
MALLESONS STEPHEN JAQUES (LB 33)
ATTN: FIONA MCKENNA
LVL 27
525 COLLINS ST
MELBOURNE VIC 3000
Certificate of Registration
of a Company
Corporations Law Sub-section 121 (1)
This is to certify that
GPU P0WERNET INVESTMENTS PTY LTD
Australian Company Number 080 864 599
is a registered company under Division 1 of Part 2.2 of the Corporations Law of
Victoria and because of its registration it is an incorporated company.
The company is limited by shares.
The company is a proprietary company.
The day of commencement of registration is the ninth day of December 1997.
Given under the seal of the
Australian Securities Commission
on this ninth day of December 1997.
Alan Cameron
Chairman
Exhibit B-204
Corporations Law of Victoria
Memorandum
and
Articles of Association
of
GPU PowerNet Investments Pty Ltd
A Company Limited by Shares
MALLESONS STEPHEN JAQUES
Solicitors
Rialto
Level 28, North Tower
525 Collins Street
Melbourne Vic 3000
Telephone (03) 9643 4000
Fax (03) 9643 5999
DX 101 Melbourne
Ref NMB:RJK
<PAGE>
Corporations Law of Victoria
Memorandum of Association
of
GPU PowerNet Investments Pty Ltd
A Company Limited by Shares
1. The name of the company is GPU PowerNet Investments Pty Ltd
2. The capital of the company is $10,000,000 divided into:
2 ordinary shares of $1.00 each;
9,999,998 unclassified shares;
3. The liability of the members of the company is limited.
The subscriber whose name and address is set out below wishes to form a company
under this memorandum of association and respectively agrees to take the number
of shares in the capital of the company set out opposite its name.
Austran Holdings, Inc. Two ordinary shares of $1.00 each
State of Delaware
1013 Centre Road
City of Wilmington
United States of America
Date: 8 December 1997
Signed by Rodney Keller
Authorised Representative
Austran Holdings, Inc.
Witness to above signature:
Francis Carew O'Brien
16 Redmond Street
Kew Vic 3101
Signature Date: 8 December 1997
<PAGE>
GPU PowerNet Investments Pty Ltd
Index of Articles of Association
1 Preliminary 1
2 Share capital and variation of rights 3
3 Lien 6
4 Calls on shares 8
5 Transfer of shares 9
6 Transmission of shares 10
7 Forfeiture of shares 12
8 Conversion of shares into stock 14
9 Alteration of capital 15
10 General meetings 16
11 Proceedings at general meetings 18
12 The Directors 25
13 Powers and duties of Directors 28
14 Proceedings of Director's 29
15 Secretary 34
16 Common seal and official seal 35
17 Inspection of records 36
18 Dividends and reserves 36
19 Capitalisation of profits 39
20 Notices 40
21 Winding up 41
22 Indemnity 42
<PAGE>
Corporations Law of Victoria
Articles of Association
of
GPU PowerNet Investments Pty Ltd
A Company Limited by Shares
1 Preliminary
Definitions
1.1 The fo1lowing words have these meanings in these Articles
unless the contrary intention appears.
Alternate Director means a person appointed as alternate
director under Article 14.6;
Articles means these articles of association as amended from
time to time, and a reference to a particular article has a
corresponding meaning;
Auditor means the auditor or auditors for the time being of
the Company;
Company means the abovenamed company;
Director means a director for the time being of the Company,
and where appropriate includes an Alternate Director;
Executive Director means a person appointed as executive
director under Article 14.29;
Managing Director means a person appointed as a managing
director under Article 14.29;
Member means a person for the time being entered in the
Register as a member of the Company;
Register means the register of members of the Company to be
kept under the Corporations Law and if appropriate includes a
branch register;
1
<PAGE>
Registered Office means the registered office for the time
being of the Company;
Secretary means a person appointed by the Directors under
Article 15.1 to perform the duties of secretary of the
Company; and
State means the State or Territory in which the Company is
from time to time incorporated.
Interpretation
1.2 In these Articles:
(a) words importing any gender include all other genders;
(b) the word person includes a firm, a body corporate, an
unincorporated association or an authority;
(c) the singular includes the plural and vice versa, and
d) a reference to a statute or code or the Corporations
Law (or to a provision of same) means the statute
code or the Corporations Law (or provision of same)
as modified or amended and in operation for the time
being or any statute, code or provision enacted
(whether by the State or the Commonwealth of
Australia) in its place and includes any regulation
or rule for the time being in force under the
statute, code or the Corporations Law.
1.3 Unless the contrary intention appears in these Articles, an
expression has, in a provision of these Articles that deals
with a matter dealt with by a particular provision of the
Corporations Law, the same meaning as in that provision of the
Corporations Law.
1.4 Headings are inserted for convenience and do not affect the
interpretation of these Articles.
2
<PAGE>
Table A not to apply
1.5 The regulations contained in Table A in Schedule 1 to the
Corporations Law do not apply to the Company.
Proprietary company
1.6 The Company is a proprietary company and accordingly:
(a) the right to transfer shares is restricted under
these Articles;
(b) the number of Members of the Company (excluding
employees of the Company or a subsidiary and former
employees who while in the employment of the Company
or a subsidiary became and have continued to be
Members) is limited to 50 and joint holders of a
share are counted as one person;
(c) 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
prohibited; and
(d) any invitation to the public to deposit money with,
and any offer to the public to accept deposits of
money with, the Company is prohibited.
2 Share Capital and variation of rights
Directors to issue shares
2.1 Without prejudice to any special rights previously conferred
on the holders of any existing shares or class of shares but
subject to the Corporations Law, or as the Company in general
meeting may when authorising any issue of shares otherwise
direct shares in the Company are under the control of the
Directors who may allot or dispose of all or any of the same
to such persons at such times and on such terms and conditions
and having attached to them such preferred, deferred or other
special rights or such restrictions, whether with regard to
dividend voting, return of capital or otherwise and at a
premium or at par or at a discount as the Directors think fit.
3
<PAGE>
2.2 The Directors have the right to grant to any person options or
other securities with rights of conversion to shares or
pre-emptive rights to any shares for any consideration and for
any period.
Preference shares
2.3 The Company may not issue any preference shares nor may any
issued shares be converted into preference shares unless the
rights of the holders of the preference shares with respect to
repayment of capital, participation in surplus assets and
profits, cumulative or non-cumulative dividends, voting and
priority of payment of capital and dividends in relation to
other shares or other classes of preference shares are set out
in the Articles. Subject to the Corporations Law, preference
shares may, with the sanction of a resolution of the Company
in general meeting, be issued on the terms that they are, or
at the option of the Company are, liable to be redeemed.
Variation of rights
2.4 If at any time the share capital is divided into different
classes of shares, the rights attached to any class may
(unless otherwise provided by the terms of issue of the shares
of that class), whether or not the Company is being wound up,
be varied or abrogated in any way with the consent in writing
of the holders of three-quarters of the issued shares of that
class, or with the sanction of a special resolution passed at
a separate meeting of the holders of the shares of that class.
2.5 The provisions of these Articles relating to general meetings
apply so far as they are capable of application and with the
necessary changes to every separate meeting of the holders of
a class of shares except that:
(a) a quorum is constituted by two persons who, between
them, hold or represent one-third of the issued
shares of the class; and
(b) any holder of shares of the class, present in person
or by proxy, attorney or representative appointed
under Article 11.2 may demand a poll.
4
<PAGE>
2.6 The rights conferred on the holders of the shares of any class
are not deemed to be varied by the creation or issue of
further shares ranking equally with the first-mentioned shares
unless otherwise:
(a) expressly provided by the term of issue of the
first-mentioned shares; or
(b) required by the Corporations Law.
Commission and brokerage
2.7 The Company may exercise the power to pay brokerage or
commission conferred by the Corporations Law. The rate or the
amount of the brokerage or commission paid or agreed to be
paid must be disclosed in the manner required by the
Corporations Law.
2.8 The total brokerage and commission must not exceed 10% of the
total amount payable on allotment of the shares in respect of
which the commission is paid.
2.9 The brokerage or commission may be satisfied by the payment of
cash or by the allotment of fully or partly paid shares or
other securities or partly by the payment of cash and partly
by the allotment of fully or partly paid shares or other
securities.
Recognition and disclosure of interest
2.10 Except as required by law, the Company is not bound or
compelled in any way to recognize a person as holding share on
any trust.
2.11 The Company is not bound by or compelled in any way to
recognise (whether or not it has notice of the interest or
rights concerned) any equitable, contingent, future or partial
interest in any share or unit of a share or (except as
otherwise provided by these Articles or by law) any other
right in respect of a share except an absolute right of
ownership in the registered holder.
5
<PAGE>
Right to share and option certificate
2.12 A person whose name is entered as a Member in the Register or
as an optionholder in the register of options is entitled
without payment to receive a certificate in respect of the
shares or options registered in the person's name under the
seal of the Company in accordance with the Corporations Law
but, in respect of shares or options held jointly by several
persons, the Company is not bound to Issue more than one
certificate.
2.13 Delivery of a certificate for a share to one of several joint
holders is sufficient delivery to all such holders.
Joint holders of shares
2.14 Where two or more persons are registered as the joint holders
of shares they are deemed to hold the shares as joint tenants.
3 Lien
Lien on share
3.1 The Company has a first and paramount lien on every share
(other than a fully paid share) for all money (whether
presently payable or not) called or payable at a fixed time in
respect of that share and such lien extends to all dividends,
rights and other distributions from time to time declared paid
or made in respect of that share.
3.2 The Company also has a first and paramount lien on all shares
(other than fully paid shares) registered in the name of a
Member for all money presently payable by that Member to the
Company and ah money which the Company may be called on by law
to pay in respect of the shares of that Member.
3.3 The Directors may at any time exempt a share wholly or in part
from the provisions of Articles 3.1 and 3.2.
6
<PAGE>
Sales under lien
3.4 Subject to Article 3.5, the company may sell, in such manner
as the Directors think fit, any share on which the Company has
a lien as if the share was forfeited.
3.5 A share on which the Company has a lien may not be sold by the
Company unless:
(a) a sum in respect of which the lien exists is
presently payable; and
(b) the Company has, not less than 14 days before the
date of sale, given to the registered holder for the
time being of the share or the person entitled to the
share by reason of the death or bankruptcy of the
registered holder, a notice in writing setting out,
and demanding payment of, such part of the amount in
respect of which the lien exists as is presently
payable.
Transfer on sale under lien
3.6 For the purpose of giving effect to a sale mentioned in
Article 3.4, the Company may receive the consideration (if
any) given for the share so sold and may execute a transfer of
the share sold in favour of the person to whom the share is
sold.
3.7 The Company must register the transferee as the holder of the
share comprised in any such transfer and the transferee is not
bound to see to the application of the purchase money.
3.8 The title of the transferee to the share is not affected by
any irregularity or invalidity in connection with the sale of
the share.
Proceeds of sale
3.9 The proceeds of a sale mentioned in Article 3.4 must be
applied by the Company in payment of such part of the amount
in respect of which the lien exists as is presently payable,
and the residue (if any) must (subject to any like lien for
sums not presently
7
<PAGE>
payable that existed on the share before the sale) be paid to
the person entitled to the share at the date of the sale.
4 Calls on shares
Directors to make call
4.1 The Directors may make calls on a Member in respect of any
money unpaid on the shares of the Member (whether on account
of the nominal value of the shares or by way of premium) and
not by the terms of issue of those shares made payable at
fixed times.
4.2 The Directors may revoke or postpone a call.
Time of call
4.3 A call is deemed to be made at the time when the resolution of
the Directors authorising the call is passed.
Members' liability
4.4 On receiving at least 14 days' notice specifying the time or
times and place of payment each Member must pay to the Company
at the time or times and place so specified the amount called
on the Member's shares.
4.5 The joint holders of a share are jointly and severally liable
to pay all calls in respect of the share.
4.6 The non-receipt of a notice of any call by, or the accidental
omission to give notice of a call to, a Member does not
indicate the call.
Interest on default
4.7 If a sum called in respect of a share is not paid before or on
the day appointed for payment of the sum, the person from whom
the sum is due must pay interest on the sum to the time of
actual payment at the rate,
8
<PAGE>
not exceeding 20% per annum, determined by the Directors, but
the Directors may waive payment of that interest wholly or in
part.
Fixed instalments deemed calls
4.8 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, is deemed
for the purposes of these Articles to be a call duly made and
payable on the date on which by the terms of issue the sum
becomes payable, and, in case of nonpayment 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.
Differentiation between shareholders as to calls
4.9 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.
Prepayment of calls
4.10 The Directors may accept from a Member the whole or a part of
the amount unpaid on a share although no part of that amount
has been called.
4.11 The Directors may authorise payment by the Company of interest
on the whole or any part of an amount so accepted, until the
amount becomes payable, at such rate, not exceeding the
prescribed rate, as is agreed on between the Directors and the
Member paying the sum.
4.12 For the purposes of Article 4.11, the prescribed rate of
interest is:
(a) if the Company has, by resolution, fixed a rate - the
rate so fixed; and
(b) in any other case - 20% per annum.
5 Transfer of shares
Forms of instrument of transfer
9
<PAGE>
5.1 Subject to these Articles, a Member may transfer all or any of
the Member's shares by instrument in writing in any usual or
common form or in any other form that the Directors approve.
5.2 An instrument of transfer referred to in Article 5.1 must be
executed by or on behalf of both the transferor and the
transferee.
Registration procedure
5.3 The instrument of transfer must be left for registration at
the Registered Office accompanied by the certificate for the
shares to which it relates and such information as the
Directors properly require to show the right of the transferor
to make the transfer, and in that event, the Company must
subject to the powers vested in the Directors by these
Articles, register the transferee as a shareholder.
5.4 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 and a transfer of shares does not pass the right to any
dividends declared on the shares until such registration.
Directors may decline to register
5.5 The Directors may decline to register any transfer of shares,
without being bound to give any reason whatsoever for so
doing.
6 Transmission of shares
Transmission of shares on death of holder
6.1 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 the deceased
was a sole holder, are the only persons recognised by the
Company as having any title to the deceased's interest in the
shares, but this Article does not release the estate of a
deceased joint
10
<PAGE>
holder from any liability in respect of a share that had been
jointly held by the deceased with other persons.
Right to registration on death or bankruptcy
6.2 Subject to the Bankruptcy Act 1966, a person becoming entitled
to a share in consequence of the death or bankruptcy of a
Member may, on such information being produced as is properly
required by the Directors, either elect to be registered as
holder of the share or nominate another person to be
registered as the transferee of the share. Where the surviving
joint holder becomes entitled to a share in consequence of the
death of a Member the Directors must, on satisfactory evidence
of that death being produced to them, direct the Register to
be altered accordingly.
6.3 If the person becoming entitled elects to be registered as
holder of the share under Article 6.2 the person must deliver
or send to the Company a notice in writing signed by the
person in such form as the Directors approve stating that the
person so elects.
6.4 If the person becoming entitled nominates another person to be
registered as the transferee of the share under Article 6.2
the person must execute a transfer of the share to the other
person.
6.5 All the limitations, restrictions and provisions of these
Articles relating to the right to transfer, and the
registration of transfer of, shares are applicable to any such
notice or transfer as if the death or bankruptcy of the Member
had not occurred and the notice or transfer were a transfer
signed by that Member.
Effect of transmission
6.6 If the registered holder of a share dies or becomes bankrupt,
the personal representative or the trustee of the estate of
the registered holder, as the case may be, is, on the
production of such information as is properly required by the
Directors, entitled to the
11
<PAGE>
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 the registered holder had not died or become
bankrupt.
6.7 If two or more persons are jointly entitled to any share in
consequence of the death of the registered holder, they are,
for the purpose of these Articles, deemed to be joint holders
of the share.
7 Forfeiture of shares
Notice requiring payment of call
7.1 If a Member fails to pay a call or instalment of a call on the
day appointed for payment of the call or instalment, the
Directors may, at any time thereafter during such time as any
part of the call or instalment remains unpaid, serve a notice
on the Member requiring payment of so much of the call or
instalment as is unpaid, together with any interest that has
accrued and all costs and expenses that may have been incurred
by the Company by reason of such nonpayment.
7.2 The notice must name a further day (not earlier than the
expiration of 14 days from the date of service of the notice)
on or before which the payment required by the notice is to be
made and must state that, in the event of non-payment at or
before the time appointed, the shares in respect of which the
call was made will be liable to be forfeited.
Forfeiture for failure to comply with notice
7.3 If the requirements of a notice served under Article 7.1 are
not complied with, any share in respect of which the notice
has been given may at any time thereafter, before the payment
required try the notice has been made, be forfeited by a
resolution of the Directors to that effect.
7.4 Such a forfeiture includes all dividends declared in respect
of the forfeited shares and not actually paid before the
forfeiture.
12
<PAGE>
7.5 Any share forfeited under Article 7.3 may be sold, re-allotted
or otherwise disposed of to whom and on such terms and
conditions, subject to the Corporations Law, as the Directors
think fit.
7.6 If any share is forfeited under Article 7.3 notice of the
forfeiture must be given to the Member holding the share
immediately prior to the forfeiture and an entry of forfeiture
with the date thereof must be made in the Register.
Cancellation of forfeiture
7.7 At any time before a sale or disposition of a share, the
forfeiture of that share may be cancelled on such terms as the
Directors think fit.
Effect of forfeiture on former holder's liability
7.8 A person whose shares have been forfeited ceases to be a
Member in respect of the forfeited shares, but remains liable
to pay the Company all money that, at the date of forfeiture,
was payable by that person to the Company in respect of the
shares (including interest at the rate, not exceeding 20% per
annum, determined by the Directors from the date of forfeiture
on the money for the time being unpaid if the Directors think
fit to enforce payment of the interest and also expenses
owing), but that person's liability ceases if and when the
Company receives payment in full of all money (including
interest and expenses) so payable in respect of the shares.
Evidence of forfeiture
7.9 A statement in writing declaring that the person making the
statement is a director or a secretary of the Company, and
that a share in the Company has been duly forfeited in
accordance with the Articles on the date stated in the
statement, is prima facie evidence of the facts stated in the
statement as against all persons claiming to be entitled to
the share.
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Transfer of forfeited share
7.10 The Company may receive the consideration (if any) given for a
forfeited share on any sale or disposition of the share and
may execute a transfer of the share in favour of the person to
whom the share is sold or disposed of.
7.11 On the execution of the transfer, the transferee must be
registered as the holder of the share and is not bound to see
to the application of any money paid as consideration.
7.12 The title of the transferee to the share is not affected by
any irregularity or invalidity in connection with the
forfeiture, sale or disposal of the share.
8 Conversion of shares into stock
Company may convert shares into stock
8.1 The Company may, by resolution in general meeting, convert all
or any of its paid up shares into stock and re-convert any
stock into paid up shares of any nominal value.
Transfer of stock
8.2 Subject to Article 8.3, when shares have been converted into
stock, the provisions of these Articles relating to the
transfer of shares apply, so far as they are capable of
application, to the transfer of the stock or of any part of
the stock.
8.3 The Directors may fix the minimum amount of stock transferable
and restrict or forbid the transfer of fractions of that
minimum, but the minimum must not exceed the aggregate of the
nominal values of the shares from which the stock arose.
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Stockholders' rights
8.4 The holders of stock have, according to the amount of the
stock held by them, the same rights, privileges and advantages
as regards dividends, voting at meetings of the Company and
other matters as they would have if they held the shares from
which the stock arose.
8.5 No privilege or advantage (except participation in the
dividends and profits of the Company and in the property of
the Company on winding up) is conferred by any amount of stock
that would not, if existing in shares, have conferred that
privilege or advantage.
Application of Article to stock
8.6 The provisions of these Articles that are applicable to paid
up shares apply to stock, and references in those provisions
to share and Member include references to stock and
stockholder respectively.
9 Alteration of capital
Company's power to alter capital
9.1 The Company in general meeting may by resolution:
(a) increase its authorised share capital by the creation
of new shares of such amount as is specified in the
resolution;
(b) consolidate and divide all or any of its authorised
share capital into shares of a larger amount than its
existing shares;
(c) subdivide all or any of its shares into shares of a
smaller amount than its existing shares but so that
in the subdivision the proportion between the amount
paid and the amount (if any) unpaid on each such
share of a smaller amount is the same as it was in
the case of the share from which the share of a
smaller amount is derived, and
(d) cancel shares that, at the date of the passing of the
resolution, have not been taken or agreed to
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be taken by any person or have been forfeited and
reduce its authorised share capital by the amount of
the shares so cancelled.
Reduction of capital
9.2 Subject to the Corporations Law, the Company in general
meeting may, by special resolution, reduce its share capital,
any capital redemption reserve fund or any share premium
account.
10 General meetings
Annual general meeting
10.1 Annual general meetings of the Company are to be held in
accordance with the Corporations Law.
General meeting
10.2 The Directors may convene a general meeting of the
Company whenever they think fit.
Notice of general meeting
10.3 Subject to the provisions of the Corporations Law relating to
special resolutions and agreements for shorter notice, at
least 14 days' notice (exclusive of the day on which the
notice is served or deemed to be served and of the day for
which notice is given) specifying the place, day and the hour
of the meeting and, in the case of special business, the
general nature of that business, must be given to such persons
as are entitled to receive notices from the Company.
The non-receipt of notice of a general meeting by, or the
accidental omission to give notice of a general meeting to, a
person entitled to receive notice does not invalidate any
resolution passed at the general meeting.
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Special business of general meeting
10.4 All business that is transacted at a general meeting is
special with the exception at an annual general meeting of the
declaration of a dividend, the consideration of the accounts
and the reports of the Directors and the Auditor, the
appointment of the Auditor and the election of Directors.
Requisitioned meeting
10.5 The Directors must, on the written requisition of:
(a) not less than 100 Members holding shares in the
Company on which there has been paid up an average
sum, per Member, of not less than $200; or
(b) a Member who is entitled or Members who are together
entitled, to not less than 5% of the total voting
rights of all Members having at the date of the
deposit of the requisition a right to vote at general
meetings;
immediately convene a general meeting of the Company to be
held as soon as practicable but, in any case, not later than
two months after the deposit of the requisition.
Objects of requisitioned meeting
10.6 The requisition for a general meeting must state the objects
of the meeting and must be signed by the requisitionists and
deposited at the Registered Office, and may consist of several
documents in like form each signed by one or more of the
requisitionists.
Convening requisitioned meeting
10.7 If the Directors do not, within 21 days after the deposit of
the requisition, proceed to convene a general meeting the
requisitionists or any of them representing more than one-half
of the total voting rights of all of them may themselves, in
the same
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manner as nearly as possible as that in which meetings are to
be convened by the Directors, convene a meeting, but a meeting
so convened may not be held after the expiration of three
months from the date of the deposit of the requisition.
Expenses of requisitioned meeting
10.8 Any reasonable expenses incurred by the requisitionists by
reason of the failure of the Directors to convene a general
meeting must be paid to the requisitionists by the Company and
any sum so paid must be retained by the Company out of any
sums due or to become due from the Company by way of fees or
other remuneration in respect of their services to such of the
Directors as were in default.
Postponement or cancellation of meeting
10.9 general meeting whenever they think fit (other than a meeting
convened as a result of a requisition under Article 10.5 or by
requisitionists under Article 10.7).
11 Proceedings at general meetings
Representation of Member
11.1 Any Member may be represented at any meeting of the Company by
a proxy or attorney.
11.2 If a body corporate is a Member it may also, by resolution of
its directors or other governing body, authorise such person
as it thinks fit to act as its representative either at a
particular general meeting or at a general meetings of the
Company or of any class of Members.
11.3 A person authorised under Article 11.2 is, in accordance with
that authority and until it is revoked by the body corporate,
entitled to exercise the same powers on behalf of the body
corporate as the body corporate could exercise if it were a
natural person who was a Member.
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11.4 Unless the contrary intention appears, a reference to a Member
in the succeeding provisions of this Part 11 means a Member, a
proxy or attorney of a Member or a person appointed under
Article 11.2 to represent a body corporate which is a Member.
Quorum
11.5 No business may be transacted at any general meeting unless a
quorum is present comprising two Members present in person or
by proxy, attorney or representative appointed under Article
11.2 and entitled to vote at the meeting. If a quorum is
present at the beginning of a meeting it is deemed present
throughout the meeting unless the chairman of the meeting
otherwise declares, on the chairman's own motion or at the
instance of a Member, proxy, attorney or representative
appointed under Article 11.2.
Failure to achieve quorum
11.6 If a meeting is convened on the requisition of Members and a
quorum is not present within half an hour from the time
appointed for the meeting, the meeting must be dissolved.
11.7 If a meeting is convened in any other case and a quorum is not
present within half an hour from the time appointed for the
meeting:
(a) the meeting must be adjourned to such day, time and
place as the Directors determine or if no
determination is made by them to the same day in the
next week at the same time and place; and
(b) if at the adjourned meeting a quorum is not present
within half an hour from the time appointed for the
meeting the meeting must be dissolved.
Appointment and powers of chairman of general meeting
11.8 If the Directors have elected one of their number as chairman
of their meetings, that person must preside as chairman at
every general meeting.
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11.9 If a general meeting is held and:
(a) a chairman has not been elected as provided by
Article 11.8; or
(b) the chairman is not present within 15 minutes after
the time appointed for the holding of the meeting or
is unable or unwilling to act,
then the deputy chairman elected under Article 14.16 (if any)
must act as chairman of the meeting. If there is no such
person or that person is absent or unable or unwilling to act,
the Directors present must elect one of their number to be
chairman of the meeting, or, if no Director is present or if
all Directors present decline to take the chair, the Members
present must elect one of their number to be chairman of the
meeting.
Adjournment of general meeting
11.10 The chairman may, with the consent of any meeting at which a
quorum is present, and must if so directed by the meeting,
adjourn the meeting from day to day, time to time and from
place to place, but no business may be transacted at any
adjourned meeting other than the business left unfurnished
at the meeting from which the adjournment took place.
11.11 When a meeting is adjourned for 30 days or more, notice of
the adjourned meeting must be given as in the case of an
original meeting.
11.12 Except as provided by Article 11.11, it is not necessary to
give any notice of an adjournment or of the business to be
transacted at any adjourned meeting.
Voting at general meeting
11.13 At any general meeting a resolution put to the vote of the
meeting must 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:
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(a) by the chairman;
(b) by not less than five Members having the right to
vote at the meeting;
(c) by a Member or Members present who are together
entitled to not less than 10% of the total voting
rights of all the Members having the right to vote at
the meeting; or
(d) by a Member or Members present and 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 10% of the total
sum paid up on all the shares conferring that right.
Unless a poll is properly demanded, a declaration by the
chairman that a resolution has on a show of hands been
carried or carried unanimously, or by a particular majority,
or lost and an entry to that effect in the book containing
the minutes of the proceedings of the Company, is conclusive
evidence of the fact without proof of the number or
proportion of the votes recorded in favour of or against the
resolution.
Questions decided by majority
11.14 Subject to the requirements of the Corporations Law in
relation to special resolutions, a resolution is taken to be
carried if the proportion that the number of votes in favour
of the resolution bears to the total number of votes on the
resolution exceeds one half.
Poll
11.15 If a poll is properly demanded, it must be taken in such
manner and (subject to Article 11.16) either at once or
after an interval or adjournment or otherwise as the
chairman directs, and the result of the poll is the
resolution of the meeting at which the poll was demanded.
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11.16 A poll demanded on the election of a chairman or on a
question of adjournment must be taken immediately.
11.17 The demand for a poll may be withdrawn.
Equality of votes
11.18 If there is an equality of votes, whether on a show of hands
or on a poll, the chairman of the meeting is not entitled to
a casting vote in addition to any votes to which the
chairman is entitled as a Member or proxy or attorney or
representative of a Member.
Entitlement to vote
11.19 Subject to any rights or restrictions for the time being
attached to any class or classes of shares and to these
Articles:
(a) on a show of hands every person present who is a
Member or a proxy, attorney or representative of a
Member has one vote; and
(b) on a poll every person present who is a Member or
proxy, attorney or representative of a Member has one
vote for each share that the person holds or
represents (as the case may be).
Joint shareholders' vote
11.20 In the case of joint holders of a share in the Company the
vote of the senior who tenders a vote, whether in person or
by proxy, attorney or representative, must be accepted to
the exclusion of the votes of the other joint holders and,
for this purpose, seniority is determined by the order in
which the names stand in the Register.
Vote of shareholder of unsound mind
11.21 If a Member is of unsound mind or is a person whose person
or estate is liable to be dealt with in any way under the
law relating to mental health then the Member's committee or
trustee or such other person as
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properly has the management of the Member's estate may
exercise any rights of the Member in relation to a general
meeting as if the committee, trustee or other person were
the Member.
Effect of unpaid call
11.22 A Member is not entitled to vote at a general meeting unless
all calls and other sums presently payable by the Member in
respect of shares in the Company have been paid.
Objection to voting qualification
11.23 An objection may be raised to the qualification of a voter
only at the meeting or adjourned meeting at which the vote
objected to is given or tendered.
11.24 Any such objection must be referred to the chairman of the
meeting, whose decision is final.
11.25 A vote not disallowed under such an objection is valid
for all purposes.
Appointment of proxy
11.26 An instrument appointing a proxy must be in writing under
the hand of the appointee or of the appointor's attorney
duly authorised in writing or, if the appointor is a
corporation, either under seal or under the hand of an
officer or attorney duly authorised. A proxy need not be a
Member.
11.27 An instrument appointing a proxy may specify the manner in
which the proxy is to vote in respect of a particular
resolution and, if an instrument of proxy so provides, the
proxy is not entitled to vote on the resolution except as
specified in the instrument.
11.28 An instrument appointing a proxy is deemed to confer
authority to demand or join in demanding a poll.
11.29 An instrument appointing a proxy must be in the form
approved by the Directors from time to time.
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Deposit of proxy and other instruments
11.30 An instrument appointing a proxy may not be treated as valid
unless the instrument, and the power of attorney or other
authority (if any) under which the instrument is signed or a
copy of that power or authority certified as a true copy by
statutory declaration is or are received by the Company not
less than 48 hours before the time for holding the meeting
or adjourned meeting at which the person named in the
instrument proposes to vote at the Registered Office or at
such other place as is specified for that purpose in the
notice convening the meeting.
Validity of vote in certain circumstances
11.31 A vote given in accordance with the terms of an instrument
of proxy or of a power of attorney is valid notwithstanding
the previous death or unsoundness of mind of the principal
the revocation of the instrument (or of the authority under
which the instrument was executed) or of the power, or the
transfer of the share in respect of which the instrument or
power is given, if no intimation in writing of the death,
unsoundness of mind revocation or transfer has been received
by the Company at its Registered Office before the
commencement of the meeting or adjourned meeting at which
the instrument is used or the power is exercised.
Director entitled to notice of meeting
11.32 A Director is entitled to receive notice of and to attend
all general meetings and all separate general meetings of
the holders of any class of shares in the company and is
entitled to speak at those meetings.
Resolution in writing
11.33 Subject to the provisions of the Corporations Law, a
resolution in writing signed by all the Members is as valid
and effectual as if it had been passed at a general meeting
of the Company duly convened and held
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at the time at which the written resolution was last signed
by a Member. Any such resolution may consist of
several documents in like form, each signed by one or more
Members.
12 The Directors
Number of Directors
12.1 The number of Directors must not be less than one. The names
of the first Directors will be determined in writing by the
subscriber to the memorandum of association of the Company and
those Directors will continue in office subject to these
Articles. The Company in general meeting may, by resolution,
increase or reduce the number of Directors.
Share qualification of Directors
12.2 A Director is not required to hold any share in the Company.
Appointment of Director
12.3 The Company in general meeting may by resolution and the
Directors may at any time appoint any person to be a Director,
either to fill a casual vacancy or as an addition to the
existing Directors, but so that the total number of Directors
does not at any time exceed the number determined in
accordance with Article 12.1.
Removal of Director
12.4 The Company in general meeting may by resolution remove any
Director from office and may by resolution appoint another
person in that Director's stead.
Remuneration of Directors
12.5 The Directors may be paid such remuneration as is determined
from time to time by the Company in general meeting. That
remuneration is deemed to accrue from day to day. A Director
who retires, and is not
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reappointed in accordance with these Articles, may be paid a
retirement benefit in recognition of past services in the
amount determined by the Directors, but not exceeding the
amount permitted by the Corporations Law.
12.6 The Directors may also be paid all travelling and other
expenses properly incurred by them in attending, participating
in 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 business of the Company.
Director's interests
12.7 No Director is disqualified by the Director's office and the
fiduciary relationship established by it from holding any
office or place of profit(other than that of Auditor) under
the Company. Any Director may (subject to the Corporations
Law):
(a) be or become a director of or otherwise hold office
or a place of profit in any other company promoted by
the Company or in which the Company may be interested
as vendor, shareholder or otherwise;
(b) contract or make any arrangement with the Company
whether as vendor, purchaser, broker, solicitor or
accountant or other professional person or otherwise
and any contract or arrangement entered or to be
entered into by or on behalf of the Company in which
any Director is in any way interested is not avoided
for that reason; and
(c) participate in any association, institution, fund,
trust or scheme for past or present employees or
Directors of the Company, a related body corporate or
any of their respective predecessors in business or
their dependents or persons connected with them.
12.8 Any Director who:
(a) holds any office or place of profit under the
Company;
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(b) holds any office or place of profit referred to in
Article 12.7(a);
(c) is involved in a contract or arrangement referred to
in Article 12.7(b); or
(d) participates in an association or otherwise under
Article 12.7(c),
is not by reason only of any of those facts or any interest
resulting from it or the fiduciary relationship established by
it liable to account to the Company for any remuneration or
other benefits accruing from it.
12.9 Each Director must disclose that Director's interests to the
Company in accordance with the Corporations Law and the
Secretary must record any such declaration in the minutes of
the relevant meeting.
12.10 A Director may only vote in respect of any contract or
proposed contract or arrangement in which the Director has a
material interest if the Director has first disclosed the
interest to the Directors in accordance with the
Corporations Law and if the Director is not permitted to
vote under this Article but does so vote then that vote may
not be counted. Directors may vote in respect of a contract
for insurance of the company or its officers against a
liability incurred by officers as officers of the Company or
a related body corporate.
12.11 The restrictions contained in Article 12.10 may at any time
or times be suspended or relaxed to any extent and either
prospectively or retrospectively by resolution of the
Company in general meeting.
12.12 A Director or a Director's firm may act in a professional
capacity (other than as Auditor) for the Company and a
Director or a Director's firm is entitled to remuneration
for professional services as if the relevant Director was
not a Director.
12.13 A Director may, notwithstanding the Director's interest, and
whether or not the Director is entitled to vote or does
vote, participate in the execution of any instrument by or
on behalf of the Company and whether through signing or
sealing the same or otherwise.
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Vacation of office of Director
12.14 In addition to the circumstances in which the office of a
Director becomes vacant under the Corporations Law, the
office of a Director becomes vacant if the Director:
(a) becomes of unsound mind or a person whose person or
estate is liable to be dealt with in any way under
the law relating to mental health;
(b) resign from the office by notice in writing to the
Company; or
(c) is absent without the consent of the remaining
Directors from meetings of the Directors held during
a period of six months.
13 Powers and duties of Directors
Directors to manage Company
13.1 Subject to the Corporations Law and to any other provision of
these Articles the business of the Company is managed by the
Directors, who may exercise all such powers of the Company as
are not, by the Corporations Law or by these Articles,
required to be exercised by the Company in general meeting.
13.2 Without limiting the generality of Article 13.1, the Directors
may exercise all the powers of the Company to borrow or raise
money, to charge any property or business of the Company or
all or any of its uncalled capital and to issue debentures or
give any other security for a debt, liability or obligation of
the Company or of any other person.
Appointment of attorney
13.3 The Directors may, by power of attorney, appoint any person or
persons to be the attorney or attorneys of the Company for
such purposes, with such powers, authorities and discretions
(being powers, authorities and discretions vested in or
exercisable by the Directors), and for such period and subject
to such conditions as they think fit.
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13.4 Any such power of attorney may contain such provisions for the
protection and convergence of persons dealing with the
attorney as the Directors did fit and may also authorise the
attorney to delegate all or any of the powers, authorities and
discretions vested in the attorney.
Minutes
13.5 The Directors must cause minutes to be made.
(a) of the names of the Directors present at or involved
in all general meetings and all meetings of the
Directors; and
(b) of all proceedings of general meetings and of
meetings of Directors, and cause those minutes to be
entered, within one month after the relevant meeting
is held, in the minute book.
13.6 The minutes referred to in Article 13.5 must be signed by the
chairman of the meeting at which the proceedings took place or
by the chairman of the next succeeding meeting.
Execution of Company cheques etc
13.7 All cheques, promissory notes, bankers' drafts, bills of
exchange and other negotiable instruments, and all receipts
for money paid to the Company, must be signed, drawn accepted,
endorsed or otherwise executed, as the case may be, in such
manner and by such persons as the Directors determine from
time to time.
14 Proceeding's of Directors
Directors' meetings
14.1 The Directors may meet together for the despatch of business
and adjourn and otherwise regulate their meetings as they
think fit.
14.2 A Director may at any time, and the Secretary must on the
requisition of a Director, convene a meeting of the Directors.
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Questions decided by majority
14.3 Subject to these Articles, questions arising at a meeting of
Directors are to be decided by a majority of votes of
Directors involved and voting and any such decision is for all
purposes deemed a decision of the Directors.
14.4 An Alternate Director involved in any meeting of Directors has
one vote for each Director for which that person is an
Alternate Director and if that person is a Director also has
one vote as a Director.
14.5 In the event of an equality of votes the chairman of the
meeting does not have a casting vote.
Alternate Directors
14.6 A Director may appoint a person (whether a Member of the
Company or not) to be an Alternate Director in the Director's
place during such period as the Director thinks fit.
14.7 An Alternate Director is entitled to notice of all meetings of
the Directors and, if the appointor is not involved in such a
meeting, is entitled to participate and vote in the
appointor's stead.
14.8 An Alternate Director may exercise any powers that the
appointor may exercise and in the exercise of any such power
the Alternate Director is an officer of the Company and is not
deemed an agent of the appointor.
14.9 An Alternate Director is not required to hold any share in the
Company.
14.10 An Alternate Director is subject in all respects to the
conditions attaching to the Directors generally except that
at Alternate Director is not entitled to any remuneration
under Article 12.5 otherwise than from the Alternate
Director's appointor.
14.11 The appointment of an Alternate Director may be terminated
at any time by the appointor notwithstanding that the period
of the appointment of
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the Alternate Director has not expired, and terminates in
any event if the appointor vacates office as a Director.
14.12 An appointment, or the termination of an appointment, of an
Alternate Director must be effected by a notice in writing
signed by the Director who makes or made the appointment and
served on the Company.
14.13 The notice of appointment or termination of appointment of
an Alternate Director may be served on the Company by
leaving it at the Registered Office or by forwarding it by
facsimile tranmission to the Registered Office and in the
case of a facsimile transmission, the appearance at the end
of the message of the name of the Director appointing or
terminating the appointment is sufficient evidence that the
Director has signed the notice.
Quorum for Directors' meetings
14.14 At a meeting of Directors, the number of Directors whose
involvement is necessary to constitute a quorum is two,
unless the Company has only one director, or such greater
number as is determined by the Directors from time to time.
Notwithstanding Article 12.10, a Director who has a material
interest in any contract or proposed contract or arrangement
may be counted in the quorum involved in any Directors'
meeting at which such contract, proposed contract or
arrangement is considered.
Remaining Directors may act
14.15 In the event of a vacancy or vacancies in the office of a
Director or offices of Directors, the remaining Director or
Directors may act but, if the number of remaining Directors
is not sufficient to constitute a quorum at a meeting of
Directors, they may act only for the purpose of:
(a) increasing the number of Directors to a number
sufficient to constitute such a quorum; or
(b) convening a general meeting of the Company.
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Chairman of Directors
14.16 The Directors must elect one of their number as chairman of
their meetings and may determine the period for which the
person elected as chairman is to hold office. The Directors
may also elect one of their number as deputy-chairman of
their meetings and may determine the period for which the
person elected as deputy-chairman is to hold office.
14.17 When a Directors' meeting is held and:
(a) a chairman has not been elected as provided by
Article 14.16; or
(b) the chairman is not present within ten minutes after
the time appointed for the holding of the meeting or
is unable or unwilling to act, the deputy-chairman
(if any) must act as chairman of the meeting. If
there is no such person or that person is absent or
unable or unwilling to act, the Directors involved
must elect one of their number to be a chairman of
the meeting.
Director's committees
14.18 The Directors may delegate any of their powers, other than
powers required by law to be dealt with by the directors as
a board, to a committee or committees consisting of at least
one of their number and such other persons as they think
fit.
14.19 A committee to which any powers have been so delegated must
exercise the powers delegated in accordance with any
directions of the Directors and a power so exercised is
deemed to have been exercised by the Directors.
14.20 The members of such a committee may elect one of their
number as chairman of their meetings.
14.21 If such a meeting is held and:
(a) a chairman has not been elected as provided by
Article 14.20; or
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(b) the chairman is not present within ten minutes after
the time appointed for the holding of the meeting or
is unable or unwilling to act,
the members involved may elect one of their number to be
chairman of the meeting.
14.22 A committee may meet and adjourn as it thinks proper.
14.23 Questions arising at a meeting of a committee are to be
determined by a majority of votes of the members involved
and voting.
14.24 in the event of there being an equality of votes, the
chairman, in addition to the chairman's deliberative vote,
has a casting vote.
Written resolution by Directors
14.25 A resolution in writing signed by all the Directors who are
eligible to vote an the resolution is as valid and effectual
as if it had been passed at a meeting of the Directors held
at the time when the written resolution was last signed by
an eligible Director. Any such resolution may consist of
several documents in like form, each signed by one or more
Directors.
Directors' meetings defined
14.26 The Directors may conduct meetings without Directors being
in the physical presence of other Directors provided that
all the Directors involved in the meeting are able
simultaneously to hear each other and to participate in
discussion.
14.27 Article 14.26 applies to meetings of Directors' committees
as if all members were Directors.
Validity of acts of Directors
14.28 All acts done by any meeting of the Directors or of a
committee of Directors or by any person acting as a Director
are, notwithstanding that it is afterwards discovered that
there was some defect in the
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appointment of a person to be a Director or a member of the
committee, or to act as a Director, or that a person so
appointed was disqualified, as valid as if the person had
been duly appointed and was qualified to be a Director or to
be a member of the committee.
Appointment of Managing and Executive Directors
14.29 The Directors may from time to time appoint one or more of
their number to the office of Managing Director or Executive
Director for such period and on such terms as they think
fit, and, subject to the terms of any agreement entered into
in a particular case, may revoke any such appointment.
Remuneration of Managing and Executive Directors
14.30 A Managing Director or Executive Director may, subject to
the terms of any agreement entered into in a particular
case, receive such remuneration (whether by way of salary,
commission or participation in profits, or partly in one way
and partly in another) as the Directors determine.
Powers of Managing and Executive Directors
14.31 The Directors may, on such terms and conditions and with
such restrictions as they think fit, confer on a Managing
Director or an Executive Director any of the powers
exercisable by them.
14.32 Any powers so conferred may be concurrent with, or be to the
exclusion of, the powers of the Directors.
14.33 The Directors may at any time withdraw or vary any of the
powers so conferred on a Managing Director or an Executive
Director.
15 Secretary
Appointment of Secretary
15.1 There must be at least one Secretary of the Company who may be
appointed by the Directors for such term, at such remuneration
and on such conditions as they think fit.
34
<PAGE>
Suspension and removal of Secretary
15.2 The Directors have power to suspend or remove a Secretary.
Power and duties of Secretary
15.3 The Directors may vest in a Secretary such powers, duties and
authorities as they may from time to time determine and a
Secretary must exercise all such powers and authorities
subject at all times to the control of the Directors.
Secretary to attend meetings
15.4 A Secretary is entitled to participate in all meetings of the
Directors and all general meetings of the Company and may be
heard on any matter.
16 Common seal and official seal
Custody of common seal
16.1 The Directors must provide for the safe custody of the
common seal.
Use of common seal
16.2 The common seal may be used only by the authority of the
Directors, or of a committee of the Directors authorised by
the Directors to authorise the use of the common seal, and
every document to which the common seal is affixed must be
signed by a Director and be countersigned by another Director,
a Secretary or another person appointed by the Directors to
countersign that document or a class of documents m which that
document is included.
16.2A The sole director, if only one person is appointed to the
office of director and that person is also the sole secretary
of the Company, may be the sole signatory to documents to
which the common seal is affixed.
35
<PAGE>
Use of official seals
16.3 The Company may have for use outside the State in place of the
common seal one or more official seals, each of which must be
a facsimile of the common seal with the addition on its face
of the name of every place where it is to be used.
16.4 The Company may by writing under its common seal empower a
person in a place either generally or in respect of a
specified matter to affix its official seal for that place to
any instrument to which the Company is a party.
17 Inspection of records
Inspection by Members
17.1 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 to the inspection of Members other than
Directors, and a Member other than a Director does not have
the right to inspect any document of the Company except as
provided by law or authorised by the Directors or by the
Company in general meeting.
18 Dividends and reserves
Declaration of final dividend
18.1 Subject to the rights of persons (if any) entitled to shares
with special rights to dividend, the Directors may declare a
final dividend out of profits in accordance with the
Corporations Law and may authorise the payment or crediting by
the Company to the Members of such a dividend.
36
<PAGE>
Directors may authorise interim dividend
18.2 The Directors may authorise the payment or crediting by the
Company to the Members of such interim dividends as appear to
the Directors to be justified by the profits of the Company.
No interest on dividends
18.3 Interest may not be paid by the Company in respect of any
dividend, whether final or interim.
Reserves and profits carried forward
18.4 The Directors may, before declaring any dividend, set aside
out of the profits of the Company such sums as they think
proper as reserves, to be applied, at the discretion of the
Directors, for any purpose for which the profits of the
Company may be properly applied.
18.5 Pending any such application, the reserves may, at the
discretion of the Directors, be used in the business of the
Company or be invested in such investments as the Directors
think fit.
18.6 The Directors may carry forward so much of the profits
remaining as they consider ought not to be distributed as
dividends without transferring those profits to a reserve.
Calculation and apportionment of dividends
18.7 Subject to the rights of persons (if any) entitled to shares
with special rights to dividend and to the terms of any issue
of shares to the contrary all dividends are to be declared and
paid according to the amounts paid or credited as paid on the
shares in respect of which the dividend is paid, and are to 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.
37
<PAGE>
18.8 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 on the
share for the purposes of Article 18.7.
Deductions from dividends
18.9 The Directors may deduct from any dividend payable to a Member
all sums of money (if any) presently payable by that Member to
the Company on account of calls or otherwise in relation to
shares in the Company.
Distribution of specific assets
18.10 The Directors, when paying or declaring a dividend, may
direct payment of a dividend wholly or partly by the
distribution of specific assets, including paid up shares
in, or debentures of, any other corporation.
18.11 If a difficulty arises in regard to such a distribution, the
Directors may settle the matter as they consider expedient
and fix the value for distribution of the specific assets or
any part of those assets and may determine that cash
payments will be made to any Members on the basis of the
value so fixed in order to adjust the rights of a parties,
and may vast any such specific assets in trustees as the
Directors consider expedient. If a distribution of specific
assets to a particular Member or Members is illegal or, in
the Directors' opinion, impracticable then the Directors may
make a cash payment to that Member or Members on the basis
of the cash amount of the dividend instead of the
distribution of specific assets.
Payment by cheque and receipts from joint holders
18.12 Any dividend, interest or other money payable in cash in
respect of shares may be paid by cheque sent through the
post directed:
(a) to the address of the holder as shown in the Register
or, in the case of joint holders, to the address
shown in the Register as the address of the joint
holder first named in the Register, or
38
<PAGE>
(b) to such other address as the holder or joint
holders in writing directs or direct.
18.13 Any one of two or more joint holders may give effectual
receipts for any dividends, interest or other money payable
in respect of the shares held by them as joint holders.
Unclaimed dividends
18.14 All dividends declared but unclaimed may be invested by the
Directors as they think fit for the benefit of the Company
until claimed or until required to be dealt with in
accordance with any law relating to unclaimed moneys.
19 Capitalisation of profits
Capitalisation of reserves and profits
19.1 The Directors may resolve that it is desirable to capitalise
any sum, being the whole or a 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 that the sum is applied, in any
of the ways mentioned in Article 19.2, for the benefit of
Members in the proportions to which those Members would have
been entitled in a distribution of that sum by way of
dividend.
19.2 The ways in which a sum may be applied for the benefit of
Members under Article 19.1 are:
(a) in paying up any amounts unpaid on shares 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).
39
<PAGE>
19.3 The Directors may do all things necessary to give effect to
the resolution and, in particular, to the extent necessary to
adjust the rights of the Members among themselves, may:
(a) issue factional certificates or make cash payments in
cases where shares or debentures become issuable in
fractions; and
(b) authorise any person to make, on behalf of all or any
of the Members entitled to any further shares or
debentures on the capitalisation, an agreement with
the Company providing for the issue to them, credited
as fully paid up, of any such further shares or
debentures or for the payment up by the Company on
their behalf of the amounts or any part of the
amounts remaining unpaid on their existing shares by
the application of their respective Proportions of
the sum resolved to be capitalised, and any such
agreement is effective and binding on all the Members
concerned.
20 Notices
Service of notices
20.1 A notice may be given by the Company to any Member or other
person receiving notice under these Articles either by serving
it on the person personally or by sending it by post or
facsimile transmission to the person at their address as shown
in the Register or the address supplied by the Person to the
Company for the giving of notices to the person.
20.2 If a notice is sent by post, service of the notice is deemed
to be effected by properly addressing, prepaying, and posting
a letter containing the notice, and the notice is deemed to
have been served on the day after the date of its posting.
20.3 If a notice is sent by facsimile transmission, service of the
notice is deemed to be effected by properly addressing the
facsimile transmission and transmitting same and to have been
served on the day following its despatch.
40
<PAGE>
20.4 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 in
the Register in respect of the share.
20.5 Every person who by operation of law, transfer or other means
whatsoever becomes entitled to any share is absolutely bound
by every notice given in accordance with this Article to the
person from whom that person derives title prior to
registration of that person's title in the Register.
Persons entitled to notice of general meeting
20.6 Notice of every general meeting must be given in a manner
authorised by Article 20.1 and in accordance with the
Corporations Law to:
(a) every Member;
(b) every Director and Alternate Director; and
(c) the Auditor.
20.7 No other person is entitled to receive notices of
general meetings.
21 Winding up
Distribution of assets
21.1 If the Company is wound up, the liquidator may, with the
sanction of a special resolution of the Company, divide among
the Members in kind the whole or any part of the property of
the Company and may for that purpose set such value as the
liquidator considers fair on any property to be so divided and
may determine how the division is to be carried out as between
the Members or different classes of Members.
21.2 The liquidator may, with the sanction of a special resolution
of the Company, vest the whole or any part of any such
property in trustees on such trusts for the benefit of the
contributories as the liquidator thinks
41
<PAGE>
fit, but so that no Member is compelled to accept any
shares or other securities in respect of which there is any
liability.
22 Indemnity
Indemnity of officers
22.1 Every person who is or has been a director, secretary or
executive officer of the Company and its Related Bodies
Corporate may, if the Directors so determine, be indemnified,
to the maximum extent permitted by law, out of the property of
the Company against any liabilities for costs and expenses
incurred by that person:
(a) in defending any proceedings relating to that
person's position with the Company, whether civil or
criminal, in which judgment is given in that person's
favour or in which that person is acquitted or which
are withdrawn before judgment; or
(b) in connection with any administrative proceedings
relating to that person's position with the Company,
except proceedings which give rise to civil or
criminal proceedings against that person in which
judgment is not given in that person's favour or in
which that person is not acquitted or which arise out
of conduct involving a lack of good faith; or
(c) in connection with any application in relation to any
proceedings relating to that person's position with
the Company, whether civil or criminal, in which
relief is granted to that person under the
Corporations Law by the court.
22.2 Every person who is or has been a director, secretary or
executive officer of the Company and its Related Bodies
Corporate may, if the Directors so determine, be indemnified,
to the maximum extent permitted by law, out of the property of
the Company against any liability to another person (other
than the Company or
42
<PAGE>
its Related Bodies Corporate) as such an officer unless the
liability arises out of conduct involving a lack of good
faith.
22.3 The Company may pay a premium for a contract insuring a person
who is or has been a director, secretary or executive officer
of the Company and its Related Bodies Corporate against:
(a) any liability incurred by that person as such an
officer which does not arise out of conduct involving
a wilful breach of duty in relation to the Company or
a contravention of sections 232(5) or (6) of the
Corporations Law; and
(b) any liability for costs and expenses incurred by that
person in defending proceedings relating to that
person's position with Company. whether civil or
criminal, and whatever their outcome.
43
<PAGE>
The Company, being the subscriber to the Memorandum of Association, agrees to
the foregoing Articles of Association.
Austran Holdings, Inc. Two ordinary shares of $1.00 each
State of Delaware
1013 Centre Road
City of Wilmington
United States of America
Date: 8 December 1997
Signed by Rodney Keller
Authorised Representative
Austran Holdings, Inc.
Witness to above signature:
Francis Carew O'Brien
16 Redmond Street
Kew Vic 3101
Signature Date: 9 December 1997
44
<PAGE>
Contents
1 Preliminary 1
Definitions 1
Interpretation 2
Table A not to apply 3
Proprietary company 3
2 Share capital and variation of rights 3
Directors to issue shares 3
Preference shares 4
Variation of rights 4
Commission and brokerage 5
Recognition arid disclosure of interests 5
Right to share and option certificate 6
Joint holders of shares 6
3 Lien 6
Lien on share 6
Sale under lien 7
Transfer on sale under lien 7
Proceeds of sale 7
4 Calls on shares 8
Directors to make calls 8
Time of call 8
Members' liability 8
Interest on default 8
Fixed instalments deemed calls 9
Differentiation between shareholders as to calls 9
Prepayment of calls 9
5 Transfer of shares 9
Forms of instrument of transfer 9
Registration procedure 10
Directors may decline to register 10
6 Transmission of shares 10
Transmission of shares on death of holder 10
Right to registration on death or bankruptcy 11
Effect of transmission 11
<PAGE>
7 Forfeiture of shares 12
Notice requiring payment of call 12
Forfeiture for fauilure to comply with notice 12
Cancellation of forfeiture 13
Effect of forfeiture on former holder's liability 13
Evidence of forfeiture 13
Transfer of forfeited share 14
8 Conversion of shares into stock 14
Company may convert shares into stock 14
Transfer of stock 14
Stockholders' rights 15
Application of Articles to stock 15
9 Alteration of capital 15
Company's power to alter capital 15
Reduction of capital 16
10 General meetings 16
Annual general meeting 16
General meeting 16
Notice of general meeting 16
Special business of general meeting 17
Requisitioned meeting 17
Objects of requisitioned meeting 17
Convening requisitioned meeting 17
Expenses of requisitioned meeting 18
Postponement or cancellation of meeting 18
11 Proceedings at general meetings 18
Representation of Member 18
Quorum 19
Failure to achieve quorum 19
Appointment and powers of chairman of
general meeting 19
Adjournment of general meeting 20
Voting at general meeting 20
Questions decided by majority 21
Poll 21
Equality of votes 22
Entitlement to vote 22
Joint shareholders' vote 22
Vote of shareholder of unsound mind 22
<PAGE>
Effect of unpaid call 23
Objection to voting qualification 23
Appointment of proxy 23
Deposit of proxy and other instruments 24
Validity of vote in certain circumstances 24
Director entitled to notice of meeting 24
Resolution in writing 24
12 The Directors 25
Number of Directors 25
Share qualification of Directors 25
Appointment of Director 25
Removal of Director 25
Remuneration of Directors 25
Director's interests 26
Vacation of office of Director 28
13 Powers and duties of Directors 28
Directors to manage Company 28
Appointment of attorney 28
Minutes 29
Execution of Company cheques etc 29
14 Proceedings of Directors 29
Directors' meetings 29
Questions decided by majority 30
Alternate Directors 30
Quorum for Directors' meetings 31
Remaining Directors may act 31
Chairman of Directors 32
Directors' committees 32
Written resolution by Directors 33
Directors' meetings defined 33
Validity of acts of Directors 33
Appointment of Managing and Executive Directors 34
Remuneration of Managing and Executive Directors 34
Powers of Managing and Executive Directors 34
15 Secretary 34
Appointment of Secretary 34
Suspension and removal of Secretary 35
Powers and duties of Secretary 35
Secretary to attend meetings 35
<PAGE>
16 Common seal and official seal 35
Custody of common seal 35
Use of common seal 35
Use of official seals 36
17 Inspection of records 36
Inspection by Members 36
18 Dividends and reserves 36
Declaration of final dividend 36
Directors may authorise interim dividend 37
No interest on dividends 37
Reserves and profits carried forward 37
Calculation and apportionment of dividends 37
Deductions from dividends 38
Distribution of specific assets 38
Payment by cheque and receipts from joint holders 38
Unclaimed dividends 39
19 Capitalisation of profits 39
Capitalisation of reserves and profits 39
20 Notices 40
Service of notices 40
Persons entitled to notice of general meeting 41
21 Winding up 41
Distribution of assets 41
22 Indemnity 42
Indemnity of officers 42
Exhibit B-205
Form 245
Corrs Chambers Westgarth. (LB19)
ATTN: COMPANY CLERKS
BOURKE PLACE 3RD FL
600 BOURKE ST
MELBOURNE VIC 3000
Certificate of Registrationon
Change of Name
Corporations Law Sub-section 171 (12)
This is to certify that
EI AUSTRALIA SERVICES PTY LTD
Australian Company Number 071 514 255
did on the fourteenth day of October 1996 change its name to
GPU INTERNATIONAL AUSTRALIA PTY LTD
Australian Company Number 071 514 255
The company is a proprietary company.
The company is limited by shares.
The company is registered under the Corporations Law of Victoria and the date of
commencement of registration is the twentieth day of October, 1995.
Given under the seal of the
Australian Securities Commission
on this fourteenth day of October, 1996.
Alan Cameron
Chairman
Exhibit C-4
PERFORMANCE UNITS AGREEMENT UNDER
THE 1990 STOCK PLAN FOR EMPLOYEES OF
GPU, INC.
AND SUBSIDIARIES
(1997 AGREEMENT)
<PAGE>
AGREEMENT made as of _______________________________, by and between GPU, Inc.
(the "Corporation") and______________________________ (the "Recipient"):
WHEREAS, the Corporation maintains the 1990 Stock Plan for Employees of GPU,
Inc. 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(f)(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;
2
<PAGE>
(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
(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 The Performance Percentage
TSR Percentile shall be:
Ranking is in the
-------------------- --------------------------
90th percentile above
85th to 89th
75th to 79th
70th to 74th
65th to 69th
60th to 64th
55th to 59th
50th to 54th
45th to 49th
below 49th
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, 1997 through December 31,
2001.
3
<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
4
<PAGE>
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.
(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 (or issued with respect to the Recipient's Deferred Vested
Units) free and clear of any restrictions and shall be free to
hold or dispose of such shares at will, subject, however, to any
restrictions 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 Unit 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
5
<PAGE>
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(f)(ii) hereof standing to the Recipient's credit on such date
except as otherwise provided in Section 4(g)(iv) hereof) shall be
determined as follows:
(i) To the extent that the payment for any of the
Recipient's Vested Units is to be made in cash, 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, 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.
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<PAGE>
(f) Subject to the provisions of paragraph (g) below but
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:
(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 (the number of Vested
Units payment with respect to which is deferred pursuant
to the Recipient's election hereunder, 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.
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<PAGE>
(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 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 Until payment has been
made with respect to 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. To
the extent that payment with respect to any of the
Recipient's Deferred Vested Units is to be made in shares
of Common Stock, one share of Common Stock shall be issued
for each such Deferred Vested Unit. The amount of the cash
payment to be made with respect
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<PAGE>
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.
(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 7.2(e) of the
GPU 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
(f) 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
9
<PAGE>
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 Company as a result of incurring a Total Disability;
and 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.
(g) Notwithstanding any provision in paragraph (f) above to the
contrary or any other election made by the Recipient under
paragraph (f), the Recipient may make a special election under
this paragraph (g) regarding payment with respect to his or her
Deferred Vested Units in the event a "Change in Control", as
defined in the Plan, should occur.
(i) The Recipient may elect under this subparagraph (i) to
have payment with respect to all of his or her Deferred
Vested Units made in the form of a single lump sum payment
upon the occurrence of a Change in Control prior to the
Recipient's termination of employment. Such payment shall
be made as soon as practicable after the date on which
such Change in Control occurs.
(ii) The Recipient may elect under this subparagraph (ii)
to have payment with respect to all of his or her Deferred
Vested Units made in the form of a single lump sum payment
in the event of the Recipient's termination of employment
for any reason within the two-year period following a
Change in Control. Such payment shall be made by no later
than 30 days after the date of the Participant's
termination of employment.
(iii) Under this subparagraph (iii) a Recipient may elect,
in the event a Change in Control occurs after the
Participant's termination of employment but before all
payments with respect to his or her Deferred Vested Units
have been made pursuant to
10
<PAGE>
the Participant's election under Section 4(f), to have
payment with respect to all of the Deferred Vested Units
that are still standing to the Recipient's credit
hereunder at the time of such Change in Control made in
the form of a single lump sum payment. Such payment shall
be made as soon as practicable after the date on which
such Change of Control occurs.
(iv) Payment with respect to the Recipient's Deferred
Vested Units pursuant to an election made by the Recipient
under subparagraph (i), (ii) or (iii) above shall be made
in the manner provided in Section 4(f)(vii); provided,
however, that if payment is to be made pursuant to the
Recipient's election under subparagraph (i) or (iii), the
second and third sentences of Section 4(f)(vii) shall not
apply, and the amount of cash payable and/or the number of
shares of Common Stock to be issued with respect to the
Recipient's Deferred Vested Units shall be determined in
accordance with the provisions of Section 4(d)(I) and
(ii).
(v) An election under subparagraph (i) shall be effective
only if it is made at least one year prior to the Change
in Control referred to in subparagraph (i). An election
under subparagraph (ii) shall be effective only if it is
made either (A) at least twenty-four (24) months prior to
the Recipient's termination of employment, or (B) if such
termination of employment constitutes an "Involuntary
Termination", as defined in subparagraph (vi) below, at
least one year prior to the Change in Control referred to
in subparagraph (ii). An election under subparagraph (iii)
shall be effective only if it is made prior to the
Recipient's termination of employment and at least one
year prior to the occurrence of the Change in Control
referred to in subparagraph (iii). Any special election
made under subparagraphs (i), (ii) or (iii) may be
revoked, and a new special election may be made
thereunder, at any time; provided, however, that any such
revocation or new election shall be effective only if it
is made within the applicable election period specified
herein. Any special election, or revocation of a special
election, that may be made under subparagraphs (i), (ii)
or (iii) shall be made in the manner set forth in the
first sentence
11
<PAGE>
of Section 4(f)(i). Any special election made by the
Recipient under subparagraph (i), (ii) or (iii) shall be
effective only if, at the date as of which payment is to
be made pursuant to such election, there is in effect for
the Recipient a special election under the comparable
provision of each other Performance Units Agreement and
Restricted Units Agreement between the Recipient and GPU,
Inc. in effect on such date.
(vi) For purposes of this paragraph (g), "Involuntary
Termination" shall mean the termination of Recipient's
employment (A) as a result of the Recipient's death, (B)
by the Corporation or any subsidiary, for any reason, or
(C) by the Recipient for "Good Reason". For purposes of
the foregoing, "Good Reason" shall mean the occurrence
after a Change in Control of any of the following events
or conditions:
(1) a change in the Recipient's status, title,
position or responsibilities (including reporting
responsibilities) which, in the Recipient's
reasonable judgment, represents an adverse change
from his or her status, title, position or
responsibilities as in effect immediately prior
thereto; the assignment to the Recipient of any
duties or responsibilities which, in the
Recipient's reasonable judgment, are inconsistent
with his or her status, title, position or
responsibilities; or any removal of the Recipient
from or failure to reappoint or reelect him or her
to any of such offices or positions, other than in
connection with the termination of his or her
employment for disability, for cause, or by the
Recipient other than for Good Reason;
(2) a reduction in the rate of the Recipient's
annual base salary;
(3) the relocation of the offices at which the
Recipient is principally employed to a location
more than twenty-five (25) miles from the location
of such offices immediately prior to such
relocation, or the Recipient's being required to be
based anywhere other than at such offices, except
to the extent
12
<PAGE>
the Recipient was not previously assigned to a
principal place of duty and except for required
travel on business of the Corporation or any
subsidiary to an extent substantially consistent
with the Recipient's previous business travel
obligations;
(4) the failure by the Corporation or any
subsidiary to pay to the Recipient any amount of
the Recipient's current compensation, or any amount
payable under this Agreement, within seven (7) days
of the date on which payment of such amount is due;
or
(5) the failure by the Corporation or any
subsidiary (x) to continue in effect (without
reduction in benefit level, and/or reward
opportunities) any material compensation or
employee benefit plan in which the Recipient was
participating immediately prior to such failure by
the Corporation or any subsidiary unless a
substitute or replacement plan has been implemented
which provides substantially identical compensation
or benefits to the Recipient or (y) to continue to
provide the Recipient with compensation and
benefits, in the aggregate, at least equal (in
terms of benefit levels and/or reward
opportunities) to those provided for under all
other compensation or employee benefit plans,
programs and practices in which the Recipient was
participating immediately prior to such failure by
the Corporation or any subsidiary.
Any event or condition described in clauses (1) through (5) above
which occurs (A) within twelve (12) months prior to a Change in
Control or (B) prior to a Change in Control but which you
reasonably demonstrate (x) was at the request of a third party
who has indicted an intention or taken steps reasonably
calculated to effect a Change in Control and who effectuates a
Change in Control or (y) otherwise arose in connection with, or
in anticipation of a Change in Control which has been threatened
or proposed, shall constitute Good Reason for purposes of this
Agreement notwithstanding that it occurred prior to a Change in
Control.
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<PAGE>
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 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.
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<PAGE>
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's 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.
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.
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<PAGE>
12. NOTICE
Any notice to the Corporation hereunder shall be in writing
addressed to:
Vice President, Human Resources
GPU Service, Inc.
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.
GPU, INC.
By:__________________________________
Fred D. Hafer
Chairman, President and Chief
Executive Officer
-----------------------------------
(Recipient)
16
Exhibit C-10
GPU SERVICE, INC.
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
As Amended Effective June 5, 1997
<PAGE>
TABLE OF CONTENTS
Page
Foreword 1
Section 1 - Definitions 3
Section 2 - Application and Basis of the Plan 8
Section 3 - Payment of Benefits 9
Section 4 - Administration 18
Section 5 - Amendment and Termination 19
i
<PAGE>
GPU SERVICE, INC.
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
(As amended effective June 5, 1997)
Foreword
Effective as of January l, 1988, GPU Service, Inc. (referred to in this document
as the "Company") established a supplemental pension plan for the benefit of
certain of its employees. This GPU Service, Inc. 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 August 1, 1996. The benefits of any employee who ceased
employment with the Company, by retirement, death, or otherwise, prior to August
1, 1996 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 1.11 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, as amended ("ERISA"), 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 ERISA.
One purpose of the Plan is to provide participants of the GPU Service, Inc.
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, as amended.
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, as amended, and
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(b) the exclusion, from Earnings under the Pension Plan, of any compensation
deferred under the Deferred Compensation Plan.
The term Company shall include GPU International, Inc.
Except to the extent otherwise indicated or inappropriate, the Pension Plan is
incorporated by reference.
2
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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 Change in Control: The term Change in Control shall mean the occurrence
during the term of the Plan of:
(1) An acquisition (other than directly from GPU, Inc. (the
"Corporation")) of any common stock of the Corporation ("Common Stock")
or other voting securities of the Corporation entitled to vote generally
for the election of directors (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
immediately after which such Person has "Beneficial Ownership" (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty
percent (20%) or more of the then outstanding shares of Common Stock or
the combined voting power of the Corporation's then outstanding Voting
Securities; provided, however, in determining whether a Change in
Control has occurred, Voting Securities which are acquired in a
"Non-Control Acquisition" (as hereinafter defined) shall not constitute
an acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (A) an employee benefit plan
(or a trust forming a part thereof) maintained by (i) the Corporation or
(ii) any corporation or other Person of which a majority of its voting
power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its Subsidiaries, or
(C) any Person in connection with a "Non-Control Transaction" (as
hereinafter defined);
(2) The individuals who, as of August 1, 1996, are members of the board
of directors of the Corporation (the "Incumbent Board"), cease for any
reason to constitute at least seventy percent (70%) of the members of
the board of directors of the Corporation; provided, however, that if
the election, or nomination for election by the Corporation's
shareholders, of any new director was approved by a vote of at least
two-thirds of the Incumbent Board, such new director shall, for
3
<PAGE>
purposes of this Plan, be considered as a member of the Incumbent Board;
provided further, however, that no individual shall be considered a
member of the Incumbent Board if such individual initially assumed
office as a result of either an actual or threatened "Election Contest"
(as described in Rule 14a-11 promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the board of directors of the Corporation
(a "Proxy Contest") including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or reorganization with or into the
Corporation or in which securities of the Corporation are issued, unless
such merger, consolidation or reorganization is a "Non-Control
Transaction." A "Non-Control Transaction" shall mean a merger,
consolidation or reorganization with or into the Corporation or in which
securities of the Corporation are issued where:
(i) the shareholders of the Corporation, immediately
before such merger, consolidation or reorganization, own directly or
indirectly immediately following such merger, consolidation or
reorganization, at least sixty percent (60%) of the combined voting
power of the outstanding voting securities of the corporation resulting
from such merger or consolidation or reorganization (the "Surviving
Corporation") in substantially the same proportion as their ownership of
the Voting Securities immediately before such merger, consolidation or
reorganization,
(ii) the individuals who were members of the Incumbent
Board immediately prior to the execution of the agreement providing for
such merger, consolidation or reorganization constitute at least seventy
percent (70%) of the members of the board of directors of the Surviving
Corporation, or a corporation, directly or indirectly, beneficially
owning a majority of the Voting Securities of the Surviving Corporation,
and
(iii) no Person other than (w) the Corporation, (x) any
Subsidiary, (y) any employee benefit plan (or any trust forming a part
thereof) that, immediately prior to such merger, consolidation or
reorganization, was maintained by the Corporation or any Subsidiary, or
(z) any Person who, immediately prior to such merger, consolidation
4
<PAGE>
or reorganization had Beneficial Ownership of twenty percent (20%) or
more of the then outstanding Voting Securities or common stock of the
Corporation, has Beneficial Ownership of twenty percent (20%) or more of
the combined voting power of the Surviving Corporation's then
outstanding voting securities or its common stock.
(B) A complete liquidation or dissolution of the Corporation; or
(C) The sale or other disposition of all or substantially all of
the assets of the Corporation to any Person (other than a transfer to a
Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then
outstanding Common Stock or Voting Securities as a result of the
acquisition of Common Stock or Voting Securities by the Corporation
which, by reducing the number of shares of Common Stock or Voting
Securities then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided that if a Change in
Control would occur (but for the operation of this sentence) as a result
of the acquisition of shares of Common Stock or Voting Securities by the
Corporation, and after such share acquisition by the Corporation, the
Subject Person becomes the Beneficial Owner of any additional shares of
Common Stock or Voting Securities which increases the percentage of the
then outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in Control shall
occur.
1.4 Company: The word Company shall have the meaning indicated in the
Foreword.
1.5 Deferred Compensation Plan: The term Deferred Compensation Plan shall
mean the GPU System Companies Deferred Compensation Plan, as adopted by
the Company.
1.6 Earnings: The term Earnings shall mean an Employee's "Earnings" as
defined in the Pension Plan.
1.7 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.
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<PAGE>
1.8 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.
1.9 Pension Plan: The term Pension Plan shall have the meaning indicated in
the Foreword.
1.10 Plan: The term Plan shall have the meaning indicated in the Foreword.
1.11 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.
For purposes of clause (i) of this Section 1.11, 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.
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<PAGE>
For purposes of clause (i) of this Section 1.11, 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.
7
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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.
8
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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 1.7 and 1.11 hereof.
3.2 (a) The Excess Benefit and/or Supplemental Benefit payable hereunder
to an Employee or the Employee's surviving spouse shall be paid
or 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 be made or commence under Section 3.2(a)
above, in which event it shall be paid in the same form as 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 payment, or commencement of
payment, 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
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(ii) in the case of any Employee who becomes entitled to benefits
in accordance with Section 3.5 of the Pension Plan, to accelerate
payment, or commencement of payment, 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 have payment of his or her Excess and
Supplemental Benefits made (A) 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), or (B)
in the form of a single lump sum payment. The amount of the lump
sum payment payable to an Employee, or to his or her surviving
spouse, pursuant to an election by the Employee under clause
(iii)(B) of the preceding sentence shall be determined in the
same manner as the amount of the lump sum payment payable
pursuant to an Employee's election under clause (i) of the first
paragraph of Section 3.2(h) would be determined, as provided in
the third paragraph of Section 3.2(h), except that for purposes
of determining the amount of the lump sum payment so payable to
the Employee, the actuarial equivalence of such payment to the
Excess and/or Supplemental Benefit that otherwise would be
payable hereunder to the Employee shall be determined as of the
date on which such lump sum payment is to be made to the
Employee.
Any election under this Section 3.2(c) shall be effective only if
it is made at least twenty-four (24) months (twelve (12) months,
if the election is made on or before August 31, 1997) prior to
the Employee's retirement or other termination of employment. Any
election made under this Section 3.2(c) may be revoked, and a new
election may be made hereunder, at any time; provided, however,
that any such revocation or new election shall be effective only
if it is made within the period specified in the preceding
sentence. Any election, or revocation of an election, that may be
made under this Section 3.2(c) shall be made in writing, on a
form that is furnished to the Employee for such purpose by the
Administrative Committee and that is signed by the Employee and
delivered to the Administrative Committee.
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(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 are payable in any form
other than as a single lump sum payment and if payments under
such form commence 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 Excess and/or
Supplemental Benefits is to be made hereunder and with
the same beneficiary.
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If Excess and/or Supplemental Benefits are payable in any form
other than as a single lump sum payment and if payments under
such form are to commence 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 anniversary 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.
(h) Notwithstanding any other provision of the Plan to the contrary
or any other optional form of distribution otherwise elected or
provided for hereunder, each Employee shall be permitted to make
either one, or both, of the following special distribution
elections:
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(i) to have his or her Excess and/or Supplemental Benefit
distributed in the form of a single lump sum payment in the event
of the Employee's termination of employment for any reason within
the two (2) year period following a Change in Control, or (ii) if
a Change in Control occurs after the Employee's termination of
employment but before all payments required to be made hereunder
with respect to his or her Excess and/or Supplemental Benefits
have been made, to have the Excess and/or Supplemental Benefit
payments that otherwise would be made hereunder after the date of
such Change in Control paid in the form of a single lump sum
payment.
An election under clause (i) of the preceding paragraph shall be
effective only if it is made either at least twenty-four (24)
months prior to such termination of the Employee's employment, or
if such termination of employment constitutes an "Involuntary
Termination" as defined below, at least one year prior to such
Change in Control. An election under clause (ii) of the preceding
paragraph shall be effective only if it is made at least one year
prior to the Change in Control, and prior to the Employee's
termination of employment. Any special election made under clause
(i) or (ii) of the preceding paragraph may be revoked, and a new
special election may be made thereunder, at any time; provided,
however, that any such revocation or new election shall be
effective only if it is made within the election period specified
in this paragraph. Any special election, or revocation of a
special election, that may be made hereunder shall be made in the
manner set forth in Section 3.2(c).
The lump sum payment to be made to an Employee pursuant to his or
her election under clause (i) of the second preceding paragraph
shall be in an amount that is Actuarially Equivalent (as defined
in the Pension Plan and determined as of the first day of the
month following the date of the Employee's termination of
employment) to the Excess and/or Supplemental Benefit that
otherwise would be payable hereunder to the Employee if (x)
payment of the Employee's Excess and/or Supplemental Benefit and
the benefits payable to the Employee under the Pension Plan were
to commence on the Employee's Normal Retirement Date (as defined
in the Pension Plan) or, if earlier, on the earliest date as of
which the Employee could elect to have payment of his or her
benefits under the Pension Plan commence,
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<PAGE>
(y) the Employee's Excess and/or Supplemental Benefit were
payable in the form of a single life annuity, and (z) the
Employee's benefits under the Pension Plan were payable either
(1) in the same form as Option 2 as described in Section 10.1 of
the Pension Plan with the Employee's spouse as the beneficiary
thereunder, if the Employee is married on the date of his or her
termination of employment, or (2) in the form of a single life
annuity, if the Employee is not married on such date. The lump
sum payment to be made to the surviving spouse of an Employee
pursuant to the Employee's election under clause (i) of the
second preceding paragraph shall be in an amount that is
Actuarially Equivalent (as defined in the Pension Plan and
determined as of the first day of the month following the date of
the Employee's death) to the Excess and/or Supplemental Benefit
that otherwise would be payable hereunder to such spouse by
reason of the Employee's death. The lump sum payment to be made
with respect to any Employee pursuant to his or her election
under clause (i) of the second preceding paragraph shall be made
by no later than thirty (30) days following the date of the
Employee's termination of employment.
The lump sum payment to be made pursuant to an Employee's
election under clause (ii) of the third preceding paragraph shall
be in an amount that is Actuarially Equivalent (as defined in the
Pension Plan and determined as of the first day of the month
coincident with or next following the date on which the Change in
Control occurs) to the payments that otherwise would be made
hereunder with respect to the Employee's Excess and/or
Supplemental Benefits after the date of such Change in Control.
Such lump sum payment shall be made by no later than thirty (30)
days following the date on which such Change in Control occurs.
If, as of the date on which such Change in Control occurs,
payments with respect to the Employee's benefits under the
Pension Plan, or with respect to his or her Excess and/or
Supplemental Benefit hereunder, have not yet commenced, the
Actuarially Equivalent amount of the lump sum payment to be made
to the Employee pursuant to his or her election under clause
14
<PAGE>
(ii) of the third preceding paragraph shall be determined using
the same assumptions as to the form and time of commencement of
such payments as are specified in clause (x), (y) or (z) of the
preceding paragraph.
For purposes of this Section 3.2(h), an "Involuntary Termination"
shall mean the termination of an Employee's employment (A) as a
result of the Employee's death, (B) by the Company, for any
reason, or (C) by the Employee, for "Good Reason" as defined
below. For purposes of the clause (C) of the preceding paragraph,
"Good Reason" shall mean the occurrence after a Change in Control
of any of the following events or conditions:
(1) a change in the Employee's status, title, position or
responsibilities (including reporting responsibilities)
which, in the Employee's reasonable judgement, represents
an adverse change from his or her status, title, position
or responsibilities as in effect immediately prior
thereto; the assignment to the Employee of any duties or
responsibilities which, in the Employee's reasonable
judgement, are inconsistent with his or her status, title,
position or responsibilities; or any removal of the
Employee from or failure to reappoint or reelect him or
her to any of such offices or positions, other than in
connection with the termination of his or her employment
for disability, for cause, or by the Employee other than
for Good Reason;
(2) any reduction in the rate of the Employee's annual base
salary;
(3) the relocation of the offices of the Company at which the
Employee is principally employed to a location more than
twenty-five (25) miles from the location of such offices
immediately prior to such relocation, or the Company's
requiring the Employee to be based anywhere other than at
such offices, except to the extent the Employee was not
previously assigned to a principal place of duty and
except for required travel on the Company's business to an
extent substantially consistent with the Employee's
previous business travel obligations;
15
<PAGE>
(4) the failure by the Company to pay to the Employee any
amount of the Employee's current compensation, or any
amount payable under any deferred compensation program of
the Company in which the Employee participated, within
seven (7) days of the date on which payment of such amount
is due; or
(5) the failure by the Company (A) to continue in effect
(without reduction in benefit level, and/or reward
opportunities) any material compensation or employee
benefit plan in which the Employee was participating
immediately prior to such failure by the Company unless a
substitute or replacement plan has been implemented which
provides substantially identical compensation or benefits
to the Employee or (B) to continue to provide the Employee
with compensation and benefits, in the aggregate, at least
equal (in terms of benefit levels and/or reward
opportunities) to those provided for under all other
compensation or employee benefit plans, programs and
practices in which the Employee was participating
immediately prior to such failure by the Company.
Any event or condition described in clauses (1) through (5) above
which occurs (A) within twelve (12) months prior to a Change in
Control or (B) prior to a Change in Control but which (x) was at
the request of a third party who has indicated an intention or
taken steps reasonably calculated to effect a Change in Control
and who effectuates a Change in Control, or (y) otherwise arose
in connection with, or in anticipation of, a Change in Control
which has been threatened or proposed and which actually occurs,
shall constitute Good Reason for purposes of this Section 3.2(h)
notwithstanding that it occurred prior to a Change in Control.
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.
16
<PAGE>
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.
17
<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 construction 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 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.
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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) no amendment to Section 3.2(h), Section
4.2 or to this Section 5.3, nor any termination of the Plan, effectuated
(i) at the request of a third party who has indicated an intention or
taken steps to effect a Change in Control and who effectuates a Change
in Control, (ii) within six (6) months prior to, or otherwise in
connection with, or in anticipation of, a Change in Control which has
been threatened or proposed and which actually occurs, or (iii)
following a Change in Control, shall be effective if the amendment or
termination adversely affects the rights of any Employee under the Plan.
19
Exhibit C-11
GPU NUCLEAR, INC.
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
As Amended Effective June 5, 1997
<PAGE>
TABLE OF CONTENTS
Page
Foreword 1
Section 1 - Definitions 3
Section 2 - Application and Basis of the Plan 8
Section 3 - Payment of Benefits 9
Section 4 - Administration 18
Section 5 - Amendment and Termination 19
i
<PAGE>
GPU NUCLEAR, INC.
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
(As amended effective June 5, 1997)
Foreword
Effective as of January l, 1988, GPU Nuclear, Inc. (referred to in this document
as the "Company") established a supplemental pension plan for the benefit of
certain of its employees. This GPU Nuclear, Inc. 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 August 1, 1996. The benefits of any employee who ceased
employment with the Company, by retirement, death, or otherwise, prior to August
1, 1996 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 1.11 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, as amended ("ERISA"), 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 ERISA.
One purpose of the Plan is to provide participants of the GPU Nuclear, Inc.
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, as amended.
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, as amended, and
1
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(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.
2
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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 Change in Control: The term Change in Control shall mean the occurrence
during the term of the Plan of:
(1) An acquisition (other than directly from GPU, Inc. (the
"Corporation")) of any common stock of the Corporation ("Common Stock")
or other voting securities of the Corporation entitled to vote generally
for the election of directors (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
immediately after which such Person has "Beneficial Ownership" (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty
percent (20%) or more of the then outstanding shares of Common Stock or
the combined voting power of the Corporation's then outstanding Voting
Securities; provided, however, in determining whether a Change in
Control has occurred, Voting Securities which are acquired in a
"Non-Control Acquisition" (as hereinafter defined) shall not constitute
an acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (A) an employee benefit plan
(or a trust forming a part thereof) maintained by (i) the Corporation or
(ii) any corporation or other Person of which a majority of its voting
power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its Subsidiaries, or
(C) any Person in connection with a "Non-Control Transaction" (as
hereinafter defined);
(2) The individuals who, as of August 1, 1996, are members of the board
of directors of the Corporation (the "Incumbent Board"), cease for any
reason to constitute at least seventy percent (70%) of the members of
the board of directors of the Corporation; provided, however, that if
the election, or nomination for election by the Corporation's
shareholders,
3
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of any new director was approved by a vote of at least two-thirds of the
Incumbent Board, such new director shall, for purposes of this Plan, be
considered as a member of the Incumbent Board; provided further,
however, that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as a result
of either an actual or threatened "Election Contest" (as described in
Rule 14a-11 promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the board of directors of the Corporation (a "Proxy
Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or reorganization with or into the
Corporation or in which securities of the Corporation are issued, unless
such merger, consolidation or reorganization is a "Non-Control
Transaction." A "Non-Control Transaction" shall mean a merger,
consolidation or reorganization with or into the Corporation or in which
securities of the Corporation are issued where:
(i) the shareholders of the Corporation, immediately
before such merger, consolidation or reorganization, own directly or
indirectly immediately following such merger, consolidation or
reorganization, at least sixty percent (60%) of the combined voting
power of the outstanding voting securities of the corporation resulting
from such merger or consolidation or reorganization (the "Surviving
Corporation") in substantially the same proportion as their ownership of
the Voting Securities immediately before such merger, consolidation or
reorganization,
(ii) the individuals who were members of the Incumbent
Board immediately prior to the execution of the agreement providing for
such merger, consolidation or reorganization constitute at least seventy
percent (70%) of the members of the board of directors of the Surviving
Corporation, or a corporation, directly or indirectly, beneficially
owning a majority of the Voting Securities of the Surviving Corporation,
and
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(iii) no Person other than (w) the Corporation, (x) any
Subsidiary, (y) any employee benefit plan (or any trust forming a part
thereof) that, immediately prior to such merger, consolidation or
reorganization, was maintained by the Corporation or any Subsidiary, or
(z) any Person who, immediately prior to such merger, consolidation or
reorganization had Beneficial Ownership of twenty percent (20%) or more
of the then outstanding Voting Securities or common stock of the
Corporation, has Beneficial Ownership of twenty percent (20%) or more of
the combined voting power of the Surviving Corporation's then
outstanding voting securities or its common stock.
(B) A complete liquidation or dissolution of the Corporation; or
(C) The sale or other disposition of all or substantially all of
the assets of the Corporation to any Person (other than a transfer to a
Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then
outstanding Common Stock or Voting Securities as a result of the
acquisition of Common Stock or Voting Securities by the Corporation
which, by reducing the number of shares of Common Stock or Voting
Securities then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided that if a Change in
Control would occur (but for the operation of this sentence) as a result
of the acquisition of shares of Common Stock or Voting Securities by the
Corporation, and after such share acquisition by the Corporation, the
Subject Person becomes the Beneficial Owner of any additional shares of
Common Stock or Voting Securities which increases the percentage of the
then outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in Control shall
occur.
1.4 Company: The word Company shall have the meaning indicated in the
Foreword.
1.5 Deferred Compensation Plan: The term Deferred Compensation Plan shall
mean the GPU System Companies Deferred Compensation Plan, as adopted by
the Company.
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1.6 Earnings: The term Earnings shall mean an Employee's "Earnings" as
defined in the Pension Plan.
1.7 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.
1.8 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.
1.9 Pension Plan: The term Pension Plan shall have the meaning indicated in
the Foreword.
1.10 Plan: The term Plan shall have the meaning indicated in the Foreword.
1.11 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.
For purposes of clause (i) of this Section 1.11, 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
6
<PAGE>
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 1.11, 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.
7
<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.
8
<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 1.7 and 1.11 hereof.
3.2 (a) The Excess Benefit and/or Supplemental Benefit payable hereunder
to an Employee or the Employee's surviving spouse shall be paid
or 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 be made or commence under Section 3.2(a)
above, in which event it shall be paid in the same form as 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 payment, or commencement of
payment, of his or her Excess and Supplemental Benefits to a
specified date
9
<PAGE>
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 payment, or
commencement of payment, 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
have payment of his or her Excess and Supplemental Benefits made
(A) 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), or (B) in the form of a single
lump sum payment. The amount of the lump sum payment payable to
an Employee, or to his or her surviving spouse, pursuant to an
election by the Employee under clause (iii)(B) of the preceding
sentence shall be determined in the same manner as the amount of
the lump sum payment payable pursuant to an Employee's election
under clause (i) of the first paragraph of Section 3.2(h) would
be determined, as provided in the third paragraph of Section
3.2(h), except that for purposes of determining the amount of the
lump sum payment so payable to the Employee, the actuarial
equivalence of such payment to the Excess and/or Supplemental
Benefit that otherwise would be payable hereunder to the Employee
shall be determined as of the date on which such lump sum payment
is to be made to the Employee.
Any election under this Section 3.2(c) shall be effective only if
it is made at least twenty-four (24) months (twelve (12) months,
if the election is made on or before August 31, 1997) prior to
the Employee's retirement or other termination of employment. Any
election made under this Section 3.2(c) may be revoked, and a new
election may be made hereunder, at any time; provided, however,
that any such revocation or new election shall be effective only
if it is made within the period specified in the preceding
sentence. Any election, or revocation of an election, that may be
made under this Section 3.2(c) shall be made in writing, on a
form that is furnished to the Employee for such purpose by the
Administrative Committee and that is signed by the Employee and
delivered to the Administrative Committee.
10
<PAGE>
(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 are payable in any form
other than as a single lump sum payment and if payments under
such form commence 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 Excess and/or Supplemental
Benefits is to be made hereunder and with the same
beneficiary.
11
<PAGE>
If Excess and/or Supplemental Benefits are payable in any form
other than as a single lump sum payment and if payments under
such form are to commence 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 anniversary 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.
(h) Notwithstanding any other provision of the Plan to the contrary
or any other optional form of distribution otherwise elected or
provided for hereunder, each
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<PAGE>
Employee shall be permitted to make either one, or both, of the
following special distribution elections: (i) to have his or her
Excess and/or Supplemental Benefit distributed in the form of a
single lump sum payment in the event of the Employee's
termination of employment for any reason within the two (2) year
period following a Change in Control, or (ii) if a Change in
Control occurs after the Employee's termination of employment but
before all payments required to be made hereunder with respect to
his or her Excess and/or Supplemental Benefits have been made, to
have the Excess and/or Supplemental Benefit payments that
otherwise would be made hereunder after the date of such Change
in Control paid in the form of a single lump sum payment.
An election under clause (i) of the preceding paragraph shall be
effective only if it is made either at least twenty-four (24)
months prior to such termination of the Employee's employment, or
if such termination of employment constitutes an "Involuntary
Termination" as defined below, at least one year prior to such
Change in Control. An election under clause (ii) of the preceding
paragraph shall be effective only if it is made at least one year
prior to the Change in Control, and prior to the Employee's
termination of employment. Any special election made under clause
(i) or (ii) of the preceding paragraph may be revoked, and a new
special election may be made thereunder, at any time; provided,
however, that any such revocation or new election shall be
effective only if it is made within the election period specified
in this paragraph. Any special election, or revocation of a
special election, that may be made hereunder shall be made in the
manner set forth in Section 3.2(c).
The lump sum payment to be made to an Employee pursuant to his or
her election under clause (i) of the second preceding paragraph
shall be in an amount that is Actuarially Equivalent (as defined
in the Pension Plan and determined as of the first day of the
month following the date of the Employee's termination of
employment) to the Excess and/or Supplemental Benefit that
otherwise would be payable hereunder to the Employee if (x)
payment of the Employee's Excess and/or Supplemental Benefit and
the benefits payable to the
13
<PAGE>
Employee under the Pension Plan were to commence on the
Employee's Normal Retirement Date (as defined in the Pension
Plan) or, if earlier, on the earliest date as of which the
Employee could elect to have payment of his or her benefits under
the Pension Plan commence, (y) the Employee's Excess and/or
Supplemental Benefit were payable in the form of a single life
annuity, and (z) the Employee's benefits under the Pension Plan
were payable either (1) in the same form as Option 2 as described
in Section 10.1 of the Pension Plan with the Employee's spouse as
the beneficiary thereunder, if the Employee is married on the
date of his or her termination of employment, or (2) in the form
of a single life annuity, if the Employee is not married on such
date. The lump sum payment to be made to the surviving spouse of
an Employee pursuant to the Employee's election under clause (i)
of the second preceding paragraph shall be in an amount that is
Actuarially Equivalent (as defined in the Pension Plan and
determined as of the first day of the month following the date of
the Employee's death) to the Excess and/or Supplemental Benefit
that otherwise would be payable hereunder to such spouse by
reason of the Employee's death. The lump sum payment to be made
with respect to any Employee pursuant to his or her election
under clause (i) of the second preceding paragraph shall be made
by no later than thirty (30) days following the date of the
Employee's termination of employment.
The lump sum payment to be made pursuant to an Employee's
election under clause (ii) of the third preceding paragraph shall
be in an amount that is Actuarially Equivalent (as defined in the
Pension Plan and determined as of the first day of the month
coincident with or next following the date on which the Change in
Control occurs) to the payments that otherwise would be made
hereunder with respect to the Employee's Excess and/or
Supplemental Benefits after the date of such Change in Control.
Such lump sum payment shall be made by no later than thirty (30)
days following the date on which such Change in Control occurs.
If, as of the date on which such Change in Control occurs,
payments with respect to the Employee's benefits under the
Pension Plan, or with respect to his or her Excess and/or
Supplemental Benefit hereunder,
14
<PAGE>
have not yet commenced, the Actuarially Equivalent amount of the
lump sum payment to be made to the Employee pursuant to his or
her election under clause (ii) of the third preceding paragraph
shall be determined using the same assumptions as to the form and
time of commencement of such payments as are specified in clause
(x), (y) or (z) of the preceding paragraph.
For purposes of this Section 3.2(h), an "Involuntary Termination"
shall mean the termination of an Employee's employment (A) as a
result of the Employee's death, (B) by the Company, for any
reason, or (C) by the Employee, for "Good Reason" as defined
below.
For purposes of the clause (C) of the preceding paragraph, "Good
Reason" shall mean the occurrence after a Change in Control of
any of the following events or conditions:
(1) a change in the Employee's status, title, position or
responsibilities (including reporting responsibilities)
which, in the Employee's reasonable judgement, represents
an adverse change from his or her status, title, position
or responsibilities as in effect immediately prior
thereto; the assignment to the Employee of any duties or
responsibilities which, in the Employee's reasonable
judgement, are inconsistent with his or her status, title,
position or responsibilities; or any removal of the
Employee from or failure to reappoint or reelect him or
her to any of such offices or positions, other than in
connection with the termination of his or her employment
for disability, for cause, or by the Employee other than
for Good Reason;
(2) any reduction in the rate of the Employee's annual base
salary;
(3) the relocation of the offices of the Company at which the
Employee is principally employed to a location more than
twenty-five (25) miles from the location of such offices
immediately prior to such relocation, or the Company's
requiring the Employee to be based anywhere other than at
such offices, except to the extent the Employee was not
15
<PAGE>
previously assigned to a principal place of duty and
except for required travel on the Company's business to an
extent substantially consistent with the Employee's
previous business travel obligations;
(4) the failure by the Company to pay to the Employee any
amount of the Employee's current compensation, or any
amount payable under any deferred compensation program of
the Company in which the Employee participated, within
seven (7) days of the date on which payment of such amount
is due; or
(5) the failure by the Company (A) to continue in effect
(without reduction in benefit level, and/or reward
opportunities) any material compensation or employee
benefit plan in which the Employee was participating
immediately prior to such failure by the Company unless a
substitute or replacement plan has been implemented which
provides substantially identical compensation or benefits
to the Employee or (B) to continue to provide the Employee
with compensation and benefits, in the aggregate, at least
equal (in terms of benefit levels and/or reward
opportunities) to those provided for under all other
compensation or employee benefit plans, programs and
practices in which the Employee was participating
immediately prior to such failure by the Company.
Any event or condition described in clauses (1) through (5) above
which occurs (A) within twelve (12) months prior to a Change in
Control or (B) prior to a Change in Control but which (x) was at
the request of a third party who has indicated an intention or
taken steps reasonably calculated to effect a Change in Control
and who effectuates a Change in Control, or (y) otherwise arose
in connection with, or in anticipation of, a Change in Control
which has been threatened or proposed and which actually occurs,
shall constitute Good Reason for purposes of this Section 3.2(h)
notwithstanding that it occurred prior to a Change in Control.
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
16
<PAGE>
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.
17
<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 construction 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 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.
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<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) no amendment to Section 3.2(h), Section
4.2 or to this Section 5.3, nor any termination of the Plan, effectuated
(i) at the request of a third party who has indicated an intention or
taken steps to effect a Change in Control and who effectuates a Change
in Control, (ii) within six (6) months prior to, or otherwise in
connection with, or in anticipation of, a Change in Control which has
been threatened or proposed and which actually occurs, or (iii)
following a Change in Control, shall be effective if the amendment or
termination adversely affects the rights of any Employee under the Plan.
19
Exhibit C-12
GPU GENERATION, INC.
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
As Amended Effective June 5, 1997
<PAGE>
TABLE OF CONTENTS
Page
Foreword 1
Section 1 - Definitions 3
Section 2 - Application and Basis of the Plan 8
Section 3 - Payment of Benefits 9
Section 4 - Administration 17
Section 5 - Amendment and Termination 18
<PAGE>
GPU GENERATION, INC.
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
(As amended effective June 5, 1997)
Foreword
Effective as of January l, 1988, GPU Generation, Inc. (referred to in this
document as the "Company") established a supplemental pension plan for the
benefit of certain of its employees. This GPU Generation, Inc. 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 August 1, 1996. The benefits of any employee who ceased
employment with the Company, by retirement, death, or otherwise, prior to August
1, 1996 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 1.11 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, as amended ("ERISA"), 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 ERISA.
One purpose of the Plan is to provide participants of the GPU Generation, Inc.
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, as amended.
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, as amended, and
1
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(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.
2
<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 Change in Control: The term Change in Control shall mean the occurrence
during the term of the Plan of:
(1) An acquisition (other than directly from GPU, Inc. (the
"Corporation")) of any common stock of the Corporation ("Common Stock")
or other voting securities of the Corporation entitled to vote generally
for the election of directors (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
immediately after which such Person has "Beneficial Ownership" (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty
percent (20%) or more of the then outstanding shares of Common Stock or
the combined voting power of the Corporation's then outstanding Voting
Securities; provided, however, in determining whether a Change in
Control has occurred, Voting Securities which are acquired in a
"Non-Control Acquisition" (as hereinafter defined) shall not constitute
an acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (A) an employee benefit plan
(or a trust forming a part thereof) maintained by (i) the Corporation or
(ii) any corporation or other Person of which a majority of its voting
power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its Subsidiaries, or
(C) any Person in connection with a "Non-Control Transaction" (as
hereinafter defined);
(2) The individuals who, as of August 1, 1996, are members of the board
of directors of the Corporation (the "Incumbent Board"), cease for any
reason to constitute at least seventy percent (70%) of the members of
the board of directors of
3
<PAGE>
the Corporation; provided, however, that if the election, or nomination
for election by the Corporation's shareholders, of any new director was
approved by a vote of at least two-thirds of the Incumbent Board, such
new director shall, for purposes of this Plan, be considered as a member
of the Incumbent Board; provided further, however, that no individual
shall be considered a member of the Incumbent Board if such individual
initially assumed office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the board of directors
of the Corporation (a "Proxy Contest") including by reason of any
agreement intended to avoid or settle any Election Contest or Proxy
Contest; or
(3) The consummation of:
(A) A merger, consolidation or reorganization with or into the
Corporation or in which securities of the Corporation are issued, unless
such merger, consolidation or reorganization is a "Non-Control
Transaction." A "Non-Control Transaction" shall mean a merger,
consolidation or reorganization with or into the Corporation or in which
securities of the Corporation are issued where:
(i) the shareholders of the Corporation, immediately
before such merger, consolidation or reorganization, own directly or
indirectly immediately following such merger, consolidation or
reorganization, at least sixty percent (60%) of the combined voting
power of the outstanding voting securities of the corporation resulting
from such merger or consolidation or reorganization (the "Surviving
Corporation") in substantially the same proportion as their ownership of
the Voting Securities immediately before such merger, consolidation or
reorganization,
(ii) the individuals who were members of the Incumbent
Board immediately prior to the execution of the agreement providing for
such merger, consolidation or reorganization constitute at least seventy
percent (70%) of the members of the board of directors of the Surviving
Corporation, or a corporation, directly or indirectly, beneficially
owning a majority of the Voting Securities of the Surviving Corporation,
and
4
<PAGE>
(iii) no Person other than (w) the Corporation, (x) any
Subsidiary, (y) any employee benefit plan (or any trust forming a part
thereof) that, immediately prior to such merger, consolidation or
reorganization, was maintained by the Corporation or any Subsidiary, or
(z) any Person who, immediately prior to such merger, consolidation or
reorganization had Beneficial Ownership of twenty percent (20%) or more
of the then outstanding Voting Securities or common stock of the
Corporation, has Beneficial Ownership of twenty percent (20%) or more of
the combined voting power of the Surviving Corporation's then
outstanding voting securities or its common stock.
(B) A complete liquidation or dissolution of the Corporation; or
(C) The sale or other disposition of all or substantially all of
the assets of the Corporation to any Person (other than a transfer to a
Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then
outstanding Common Stock or Voting Securities as a result of the
acquisition of Common Stock or Voting Securities by the Corporation
which, by reducing the number of shares of Common Stock or Voting
Securities then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided that if a Change in
Control would occur (but for the operation of this sentence) as a result
of the acquisition of shares of Common Stock or Voting Securities by the
Corporation, and after such share acquisition by the Corporation, the
Subject Person becomes the Beneficial Owner of any additional shares of
Common Stock or Voting Securities which increases the percentage of the
then outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in Control shall
occur.
1.4 Company: The word Company shall have the meaning indicated in the
Foreword.
1.5 Deferred Compensation Plan: The term Deferred Compensation Plan shall
mean the GPU System Companies Deferred Compensation Plan, as adopted by
the Company.
1.6 Earnings: The term Earnings shall mean an Employee's "Earnings" as
defined in the Pension Plan.
5
<PAGE>
1.7 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.
1.8 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.
1.9 Pension Plan: The term Pension Plan shall have the meaning indicated in
the Foreword.
1.10 Plan: The term Plan shall have the meaning indicated in the Foreword.
1.11 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.
For purposes of clause (i) of this Section 1.11, 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.
6
<PAGE>
For purposes of clause (i) of this Section 1.11, 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.
7
<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.
8
<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 1.7 and 1.11 hereof.
3.2 (a) The Excess Benefit and/or Supplemental Benefit payable hereunder
to an Employee or the Employee's surviving spouse shall be paid
or 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 be made or commence under Section 3.2(a)
above, in which event it shall be paid in the same form as 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 payment, or commencement of
payment, 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
9
<PAGE>
to benefits in accordance with Section 3.5 of the Pension Plan,
to accelerate payment, or commencement of payment, 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 have payment of his or her Excess and
Supplemental Benefits made (A) 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), or (B)
in the form of a single lump sum payment. The amount of the lump
sum payment payable to an Employee, or to his or her surviving
spouse, pursuant to an election by the Employee under clause
(iii)(B) of the preceding sentence shall be determined in the
same manner as the amount of the lump sum payment payable
pursuant to an Employee's election under clause (i) of the first
paragraph of Section 3.2(h) would be determined, as provided in
the third paragraph of Section 3.2(h), except that for purposes
of determining the amount of the lump sum payment so payable to
the Employee, the actuarial equivalence of such payment to the
Excess and/or Supplemental Benefit that otherwise would be
payable hereunder to the Employee shall be determined as of the
date on which such lump sum payment is to be made to the
Employee.
Any election under this Section 3.2(c) shall be effective only if
it is made at least twenty-four (24) months (twelve (12) months,
if the election is made on or before August 31, 1997) prior to
the Employee's retirement or other termination of employment. Any
election made under this Section 3.2(c) may be revoked, and a new
election may be made hereunder, at any time; provided, however,
that any such revocation or new election shall be effective only
if it is made within the period specified in the preceding
sentence. Any election, or revocation of an election, that may be
made under this Section 3.2(c) shall be made in writing, on a
form that is furnished to the Employee for such purpose by the
Administrative Committee and that is signed by the Employee and
delivered to the Administrative Committee.
(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
10
<PAGE>
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 are payable in any form
other than as a single lump sum payment and if payments under
such form commence 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 Excess and/or Supplemental
Benefits is to be made hereunder and with the same
beneficiary.
If Excess and/or Supplemental Benefits are payable in any form
other than as a single lump sum payment and if payments under
such form are to commence before Pension
11
<PAGE>
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 anniversary 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.
(h) Notwithstanding any other provision of the Plan to the contrary
or any other optional form of distribution otherwise elected or
provided for hereunder, each Employee shall be permitted to make
either one, or both, of the following special distribution
elections: (i) to have his or her Excess and/or Supplemental
Benefit distributed in the form of a single lump sum payment in
the event of the Employee's termination of
12
<PAGE>
employment for any reason within the two (2) year period
following a Change in Control, or (ii) if a Change in Control
occurs after the Employee's termination of employment but before
all payments required to be made hereunder with respect to his or
her Excess and/or Supplemental Benefits have been made, to have
the Excess and/or Supplemental Benefit payments that otherwise
would be made hereunder after the date of such Change in Control
paid in the form of a single lump sum payment.
An election under clause (i) of the preceding paragraph shall be
effective only if it is made either at least twenty-four (24)
months prior to such termination of the Employee's employment, or
if such termination of employment constitutes an "Involuntary
Termination" as defined below, at least one year prior to such
Change in Control. An election under clause (ii) of the preceding
paragraph shall be effective only if it is made at least one year
prior to the Change in Control, and prior to the Employee's
termination of employment. Any special election made under clause
(i) or (ii) of the preceding paragraph may be revoked, and a new
special election may be made thereunder, at any time; provided,
however, that any such revocation or new election shall be
effective only if it is made within the election period specified
in this paragraph. Any special election, or revocation of a
special election, that may be made hereunder shall be made in the
manner set forth in Section 3.2(c).
The lump sum payment to be made to an Employee pursuant to his or
her election under clause (i) of the second preceding paragraph
shall be in an amount that is Actuarially Equivalent (as defined
in the Pension Plan and determined as of the first day of the
month following the date of the Employee's termination of
employment) to the Excess and/or Supplemental Benefit that
otherwise would be payable hereunder to the Employee if (x)
payment of the Employee's Excess and/or Supplemental Benefit and
the benefits payable to the Employee under the Pension Plan were
to commence on the Employee's Normal Retirement Date (as defined
in the Pension Plan) or, if earlier, on the earliest date as of
which the Employee could elect to have payment of his or her
benefits under the Pension Plan commence, (y) the Employee's
Excess and/or Supplemental Benefit were payable in the form of a
single life annuity, and
13
<PAGE>
(z) the Employee's benefits under the Pension Plan were payable
either (1) in the same form as Option 2 as described in Section
10.1 of the Pension Plan with the Employee's spouse as the
beneficiary thereunder, if the Employee is married on the date of
his or her termination of employment, or (2) in the form of a
single life annuity, if the Employee is not married on such date.
The lump sum payment to be made to the surviving spouse of an
Employee pursuant to the Employee's election under clause (i) of
the second preceding paragraph shall be in an amount that is
Actuarially Equivalent (as defined in the Pension Plan and
determined as of the first day of the month following the date of
the Employee's death) to the Excess and/or Supplemental Benefit
that otherwise would be payable hereunder to such spouse by
reason of the Employee's death. The lump sum payment to be made
with respect to any Employee pursuant to his or her election
under clause (i) of the second preceding paragraph shall be made
by no later than thirty (30) days following the date of the
Employee's termination of employment.
The lump sum payment to be made pursuant to an Employee's
election under clause (ii) of the third preceding paragraph shall
be in an amount that is Actuarially Equivalent (as defined in the
Pension Plan and determined as of the first day of the month
coincident with or next following the date on which the Change in
Control occurs) to the payments that otherwise would be made
hereunder with respect to the Employee's Excess and/or
Supplemental Benefits after the date of such Change in Control.
Such lump sum payment shall be made by no later than thirty (30)
days following the date on which such Change in Control occurs.
If, as of the date on which such Change in Control occurs,
payments with respect to the Employee's benefits under the
Pension Plan, or with respect to his or her Excess and/or
Supplemental Benefit hereunder, have not yet commenced, the
Actuarially Equivalent amount of the lump sum payment to be made
to the Employee pursuant to his or her election under clause (ii)
of the third preceding paragraph shall be determined using the
same assumptions as to the form and time of commencement of such
payments as are specified in clause (x), (y) or (z) of the
preceding paragraph.
14
<PAGE>
For purposes of this Section 3.2(h), an "Involuntary Termination"
shall mean the termination of an Employee's employment (A) as a
result of the Employee's death, (B) by the Company, for any
reason, or (C) by the Employee, for "Good Reason" as defined
below.
For purposes of the clause (C) of the preceding paragraph, "Good
Reason" shall mean the occurrence after a Change in Control of
any of the following events or conditions:
(1) a change in the Employee's status, title, position or
responsibilities (including reporting responsibilities)
which, in the Employee's reasonable judgement, represents
an adverse change from his or her status, title, position
or responsibilities as in effect immediately prior
thereto; the assignment to the Employee of any duties or
responsibilities which, in the Employee's reasonable
judgement, are inconsistent with his or her status, title,
position or responsibilities; or any removal of the
Employee from or failure to reappoint or reelect him or
her to any of such offices or positions, other than in
connection with the termination of his or her employment
for disability, for cause, or by the Employee other than
for Good Reason;
(2) any reduction in the rate of the Employee's annual base
salary;
(3) the relocation of the offices of the Company at which the
Employee is principally employed to a location more than
twenty-five (25) miles from the location of such offices
immediately prior to such relocation, or the Company's
requiring the Employee to be based anywhere other than at
such offices, except to the extent the Employee was not
previously assigned to a principal place of duty and
except for required travel on the Company's business to an
extent substantially consistent with the Employee's
previous business travel obligations;
(4) the failure by the Company to pay to the Employee any
amount of the Employee's current compensation, or any
amount payable under any deferred compensation program of
the Company in which the Employee participated, within
seven (7) days of the date on which payment of such amount
is due; or
15
<PAGE>
(5) the failure by the Company (A) to continue in effect
(without reduction in benefit level, and/or reward
opportunities) any material compensation or employee
benefit plan in which the Employee was participating
immediately prior to such failure by the Company unless a
substitute or replacement plan has been implemented which
provides substantially identical compensation or benefits
to the Employee or (B) to continue to provide the Employee
with compensation and benefits, in the aggregate, at least
equal (in terms of benefit levels and/or reward
opportunities) to those provided for under all other
compensation or employee benefit plans, programs and
practices in which the Employee was participating
immediately prior to such failure by the Company.
Any event or condition described in clauses (1) through (5) above
which occurs (A) within twelve (12) months prior to a Change in
Control or (B) prior to a Change in Control but which (x) was at
the request of a third party who has indicated an intention or
taken steps reasonably calculated to effect a Change in Control
and who effectuates a Change in Control, or (y) otherwise arose
in connection with, or in anticipation of, a Change in Control
which has been threatened or proposed and which actually occurs,
shall constitute Good Reason for purposes of this Section 3.2(h)
notwithstanding that it occurred prior to a Change in Control.
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.
16
<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 construction 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 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.
17
<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) no amendment to Section 3.2(h), Section
4.2 or to this Section 5.3, nor any termination of the Plan, effectuated
(i) at the request of a third party who has indicated an intention or
taken steps to effect a Change in Control and who effectuates a Change
in Control, (ii) within six (6) months prior to, or otherwise in
connection with, or in anticipation of, a Change in Control which has
been threatened or proposed and which actually occurs, or (iii)
following a Change in Control, shall be effective if the amendment or
termination adversely affects the rights of any Employee under the Plan.
18
Exhibit C-14
DEFERRED REMUNERATION PLAN FOR OUTSIDE DIRECTORS
OF GPU NUCLEAR, INC.
(AS AMENDED AND RESTATED EFFECTIVE JUNE 5, 1997)
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 June 5,
1997. 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.
<PAGE>
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.
3.2 Board of Directors - refers to the Board of Directors of the Company
3.3 Change in Control - A "Change in Control" shall mean the occurrence
during the term of the Plan of:
(1) An acquisition (other than directly from GPU, Inc. (the
"Corporation")) of any common stock of the Corporation ("Common Stock")
or other voting securities of the Corporation entitled to vote
generally for the election of directors of the Corporation (the "Voting
Securities") by any "Person" (as the term person is used for purposes
of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of twenty percent (20%) or more of the then
outstanding shares of Common Stock or the combined voting power of the
Corporation's then outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred, Voting Securities
which are acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which would cause a Change
in Control. A "Non-Control Acquisition" shall mean an acquisition by
(A) an employee benefit plan (or a trust forming a part thereof)
maintained by (i) the Corporation or (ii) any corporation or other
Person of which a majority of its voting power or its voting equity
securities or equity interest is owned, directly or indirectly, by the
Corporation (for purposes of this definition, a "Subsidiary"), (B) the
Corporation or its Subsidiaries, or (C) any Person in connection with a
"Non-Control Transaction" (as hereinafter defined);
<PAGE>
(2) The individuals who, as of August 1, 1996, are members of the board
of directors of the Corporation (the "Incumbent Board"), cease for any
reason to constitute at least seventy percent (70%) of the members of
the board of directors of the Corporation; provided, however, that if
the election, or nomination for election by the Corporation's
shareholders, of any new director was approved by a vote of at least
two-thirds of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the Incumbent
Board; provided further, however, that no individual shall be
considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened "Election
Contest" (as described in Rule 14a-11 promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the board of directors of the
Corporation (a "Proxy Contest") including by reason of any agreement
intended to avoid or settle any Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or reorganization with or into the
Corporation or in which securities of the Corporation are issued,
unless such merger, consolidation or reorganization is a "Non-Control
Transaction." A "Non-Control Transaction" shall mean a merger,
consolidation or reorganization with or into the Corporation or in
which securities of the Corporation are issued where:
(i) the shareholders of the Corporation, immediately
before such merger, consolidation or reorganization, own directly or
indirectly immediately following such merger, consolidation or
reorganization, at least sixty percent (60%) of the combined voting
power of the outstanding voting securities of the corporation resulting
from such merger or consolidation or reorganization (the "Surviving
Corporation") in substantially the same proportion as their ownership
of the Voting Securities immediately before such merger, consolidation
or reorganization,
(ii) the individuals who were members of the Incumbent
Board immediately prior to the execution of the agreement providing for
such merger, consolidation or reorganization constitute at least
seventy percent (70%) of the members of the board of directors of the
Surviving Corporation, or a corporation, directly or indirectly,
<PAGE>
beneficially owning a majority of the Voting Securities of the
Surviving Corporation, and
(iii) no Person other than (w) the Corporation, (x) any
Subsidiary, (y) any employee benefit plan (or any trust forming a part
thereof) that, immediately prior to such merger, consolidation or
reorganization, was maintained by the Corporation or any Subsidiary, or
(z) any Person who, immediately prior to such merger, consolidation or
reorganization had Beneficial Ownership of twenty percent (20%) or more
of the then outstanding Voting Securities or common stock of the
Corporation, has Beneficial Ownership of twenty percent (20%) or more
of the combined voting power of the Surviving Corporation's then
outstanding voting securities or its common stock;
(B) A complete liquidation or dissolution of the Corporation; or
(C) The sale or other disposition of all or substantially all of
the assets of the Corporation to any Person (other than a transfer to a
Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then
outstanding Common Stock or Voting Securities as a result of the
acquisition of Common Stock or Voting Securities by the Corporation
which, by reducing the number of shares of Common Stock or Voting
Securities then outstanding, increases the proportional number of
shares Beneficially Owned by the Subject Person, provided that if a
Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of shares of Common Stock or Voting
Securities by the Corporation, and after such share acquisition by the
Corporation, the Subject Person becomes the Beneficial Owner of any
additional shares of Common Stock or Voting Securities which increases
the percentage of the then outstanding shares of Common Stock or Voting
Securities Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
3.4 Committee - refers to the Personnel, Compensation and Nominating
Committee of the Corporation's board of directors.
<PAGE>
3.5 Company - refers to GPU Nuclear, Inc.
3.6 Director - refers to a member of the Board of Directors who is not an
employee of the Company, the Corporation or any
of its subsidiaries.
3.7 Plan - refers to this Deferred Remuneration Plan for Outside Directors
as described in this document and as it may be amended in the future.
3.8 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.
3.9 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.
3.10 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.
3.11 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 the Company, the Corporation or any of
its subsidiaries.
<PAGE>
3.12 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;
provided, however, that Section 3.3, this Section 4.1, Section 4.3, the
last sentence in the first paragraph of Section 6 and the last
paragraph in Section 7.2 may not be amended or modified, and the Plan
may not be terminated, (i) at the request of a third party who has
indicated an intention or taken steps to effect a Change in Control and
who effectuates a Change in Control, (ii) within six (6) months prior
to, or otherwise in connection with, or in anticipation of, a Change in
Control which has been threatened or proposed and which actually
occurs, or (iii) following a Change in Control, if the amendment,
modification or termination adversely affects the rights of any
Director under the Plan. No modification or termination of the Plan
shall adversely affect the rights of any Director with respect to any
amounts standing to the Director's credit in any Account immediately
prior to the date of the adoption of such modification or termination,
including without limitation any rights with respect to the time and
method of payment of, or the crediting of interest equivalents with
respect to, any such amounts.
4.2 Responsibility for the ongoing administration of this Plan rests with
the Corporate Secretary's Department.
4.3 All questions concerning the disclosure of information relating to this
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 Corporate Secretary.
The Corporate Secretary will not be liable to any person for any action
taken or omitted in connection with the interpretation and the
administration of the Plan unless attributable to willful misconduct or
lack of good faith. Notwithstanding the foregoing, any determination
made by the Corporate Secretary after the occurrence of a "Change
<PAGE>
in Control" 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.
4.4 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.
4.5 A Director's election to voluntarily defer Remuneration, selection of a
distribution commencement 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, Inc.
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
<PAGE>
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.
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 7.2 or 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 4.5, 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 January 15 of the calendar year following the Director's
Retirement, or January 15 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
<PAGE>
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 Companys 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
reflect in this Plan be treated as unfunded for tax purposes.
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
<PAGE>
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. 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.
Notwithstanding any other provision of the Plan to the contrary or any
other optional form of distribution otherwise elected, each Director
shall be permitted to make either one or both of the following special
distribution elections; (x) to have the entire balance of his or her
Accounts distributed in the form of a single lump sum payment in the
event of the Director's Retirement following a Change in Control, or
(y) if a Change in Control occurs after the Director's Retirement but
before all payments with respect to the balances of his or her Accounts
have been made in accordance with the Director's elections under
Sections 5.3 and 5.4, to have the entire balance of each of his
Accounts that remains unpaid at the time of such Change in Control
distributed in the form of a single lump sum payment. Any such election
shall be effective only if it is made at least twelve (12) months prior
to such Change in Control and prior to the Director's Retirement. Any
special election made under clause (x) or (y) above may be revoked ,
and a new special election may be made thereunder at any time;
provided, however, that such revocation or new election shall be
<PAGE>
effective only if it is made within the period specified in the
preceding sentence. Any special election, or revocation of a special
election, that may be made hereunder shall be made in the manner set
forth in Section 4.6. The lump sum payment to be made pursuant to a
Director's special election hereunder shall be made by no later than
thirty (30) days following the date of the Director's Retirement or, in
the case of a special election under clause (y) above, the date of the
Change in Control.
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 Directors 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
<PAGE>
meet some severe financial need arising from circumstances which
were beyond the Directors 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 Directors needs for such
distribution to enable the Committee to take action on his or her
request, and shall be mailed or delivered to the Companys
Corporate Secretary.
8. Non-Assignment of Deferred Remuneration
8.1 A Director'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.
Exhibit C-198
Deferred Stock Unit Plan for Outside Directors
of
GPU, Inc.
As Adopted Effective July 1, 1997
-----
1. Purpose
The purpose of the Plan is to more closely align the interests of the
outside directors of GPU, Inc. with those of GPU, Inc.'s stockholders by
providing for a significant portion of the total annual compensation payable to
such directors to be paid in the form of units representing shares of GPU,
Inc.'s common stock.
2. Definitions
As used herein, the following terms shall have the following meanings:
"Account" shall mean the account established for a Participant pursuant to
Section 5.
"Award Date" shall mean July 1, 1997 and July 1 of each calendar year
thereafter.
"Beneficiary" shall mean the person or persons designated by a Participant
in accordance with Section 11 to receive any amount, or any shares of Common
Stock, payable under the Plan upon the Participant's death.
"Board of Directors" shall mean the Board of Directors of the Corporation.
"Change in Control" shall mean the occurrence of any of the following
events:
(1)An acquisition (other than directly from Corporation of any Common
Stock or other voting securities of the Corporation entitled to vote generally
for the election of directors (the "Voting Securities") by any "Person" (as the
term person is used for purposes of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), immediately after which
such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty
<PAGE>
percent (20%) or more of the then outstanding shares of Common Stock or the
combined voting power of the Corporation's then outstanding Voting Securities;
provided, however, in determining whether a Change in Control has occurred,
Voting Securities which are acquired in a "Non-Control Acquisition" (as
hereinafter defined) shall not constitute an acquisition which would cause a
Change in Control. A "Non-Control Acquisition" shall mean an acquisition by (A)
an employee benefit plan (or a trust forming a part thereof) maintained by (i)
the Corporation or (ii) any corporation or other Person of which a majority of
its voting power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Corporation (for purposes of this definition, a
"Subsidiary"), (B) the Corporation or its Subsidiaries, or (C) any Person in
connection with a "Non-Control Transaction" (as hereinafter defined);
(2)The individuals who, as of August 1, 1996, are members of the board of
directors of the Corporation (the "Incumbent Board"), cease for any reason to
constitute at least seventy percent (70%) of the members of the board of
directors of the Corporation; provided, however, that if the election, or
nomination for election by the Corporation's shareholders, of any new director
was approved by a vote of at least two-thirds of the Incumbent Board, such new
director shall, for purposes of this Plan, be considered as a member of the
Incumbent Board; provided further, however, that no individual shall be
considered a member of the Incumbent Board if such individual initially assumed
office as a result of either an actual or threatened "Election Contest" (as
described in Rule 14a-11 promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the board of directors of the Corporation (a "Proxy Contest") including by
reason of any agreement intended to avoid or settle any Election Contest or
Proxy Contest; or
(3)The consummation of:
(a)A merger, consolidation or reorganization with or into the Corporation
or in which securities of the Corporation are issued, unless such merger,
consolidation or reorganization is a "Non-Control Transaction." A "Non-Control
Transaction" shall mean a merger, consolidation or reorganization with or into
the Corporation or in which securities of the Corporation are issued where:
(i) the shareholders of the Corporation, immediately before such
merger, consolidation or reorganization, own directly or indirectly
immediately following such merger, consolidation or reorganization, at
least sixty percent
<PAGE>
(60%) of the combined voting power of the outstanding voting securities of
the corporation resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities immediately before
such merger, consolidation or reorganization,
(ii) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for such
merger, consolidation or reorganization constitute at least seventy
percent (70%) of the members of the board of directors of the Surviving
Corporation, or a corporation, directly or indirectly, beneficially owning
a majority of the Voting Securities of the Surviving Corporation, and
(iii) no Person other than (w) the Corporation, (x) any Subsidiary,
(y) any employee benefit plan (or any trust forming a part thereof) that,
immediately prior to such merger, consolidation or reorganization, was
maintained by the Corporation or any Subsidiary, or (z) any Person who,
immediately prior to such merger, consolidation or reorganization had
Beneficial Ownership of twenty percent (20%) or more of the then
outstanding Voting Securities or common stock of the Corporation, has
Beneficial Ownership of twenty percent (20%) or more of the combined
voting power of the Surviving Corporation's then outstanding voting
securities or its common stock.
(b) A complete liquidation or dissolution of the Corporation; or
(c) The sale or other disposition of all or substantially all of the
assets of the Corporation to any Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then outstanding Common Stock
or Voting Securities as a result of the acquisition of Common Stock or Voting
Securities by the Corporation which, by reducing the number of shares of Common
Stock or Voting Securities then outstanding, increases the proportional number
of shares Beneficially Owned by the Subject Persons, provided that if a Change
in Control would occur (but for the operation of this sentence) as a result of
the acquisition of shares of Common Stock or Voting Securities by the
Corporation, and after such share acquisition by the Corporation,
<PAGE>
the Subject Person becomes the Beneficial Owner of any additional shares of
Common Stock or Voting Securities which increases the percentage of the then
outstanding shares of Common Stock or Voting Securities Beneficially Owned by
the Subject Person, then a Change in Control shall occur.
"Committee" shall mean the Personnel,Compensation and Nominating Committee
of the Board of Directors.
"Common Stock" shall mean the shares of common stock of the Corporation.
"Corporation" shall mean GPU, Inc.
"Deferred Stock Unit" shall mean a unit of measurement equivalent to one
share of Common Stock, with none of the attendant rights of a shareholder of
such share, including, without limitation, the right to vote such share and the
right to receive dividends thereon, except to the extent otherwise specifically
provided herein.
"Outside Director" shall mean a member of the Board of Directors who, as
of any date of reference, is not an employee of the Corporation or any
subsidiary thereof.
"Participant" shall mean any Outside Director for whom an Account has been
established, and is being maintained, pursuant to Section 5.
<PAGE>
"Plan" shall mean the Deferred Stock Unit Plan for Outside Directors of
GPU, Inc., as set forth herein and as amended from time to time.
"Retirement" shall mean, with respect to any Participant, the
Participant's ceasing to be a member of the Board of Directors for any reason.
"Vesting Date" shall mean, with respect to any Participant, the earliest
to occur of the following dates:
(i) the date as of which the Participant has completed at least 54
months of service, whether or not continuous, as an Outside Director;
(ii) the date of the Participant's death; or
(iii) the date on which a Change in Control occurs.
<PAGE>
3. Maximum Number of Shares of Common Stock Available
The number of shares of Common Stock that may be distributed with respect
to Deferred Stock Units awarded under the Plan shall be limited to 200,000
shares of Common Stock. If any Deferred Stock Units credited to a Participant's
Account shall be forfeited, the number of shares of Common Stock no longer
payable with respect to the Deferred Stock Units so forfeited shall thereupon be
released and shall thereafter be available for distribution with respect to new
awards of Deferred Stock Units under the Plan. The limitation provided under
this Section 3 shall be subject to adjustment as provided in Section 9.
The shares of Common Stock distributed under the Plan may be authorized
and unissued shares, or shares purchased on the open market by the Corporation
at such time or times and in such manner as it may determine.
4. Annual Awards
As of each Award Date, the Account maintained hereunder for each member of
the Board of Directors who is an Outside Director on such date shall be credited
with a number of Deferred Stock Units determined by first multiplying the amount
of his or her Annual Cash Retainer by 1.5, and then dividing the resulting
product by the per share closing price of the Common Stock as reported on the
New York Stock Exchange Composite Tape for such Award 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. An Outside Director's "Annual Cash Retainer" shall
mean, as of any Award Date, the annual rate of cash retainer in effect for the
Outside Director as of the day preceding such Award Date.
5. Accounts
There shall be established on the books and records of the Corporation,
for bookkeeping purposes only, a separate Account for each member of the Board
of Directors who is an Outside Director on July 1, 1997, and for each individual
who becomes an Outside Director thereafter, to reflect such Participant's
interest under the Plan. The Account so established shall be maintained in
accordance with the following provisions:
(a)As of each Award Date, each Participant's Account shall be credited
with the number of Deferred Stock Units required to be credited pursuant to
Section 4.
<PAGE>
(b)Each Participant's Account shall be adjusted to reflect all additional
Deferred Stock Units required to be credited to such Account pursuant to Section
6, and the cancellation of all Deferred Stock Units with respect to which
payments are made pursuant to Section 7.
(c)A Participant's interest in his or her Account shall become fully
vested and nonforfeitable upon his or her Vesting Date.
6. Crediting of Dividend Equivalents
Until payment with respect to a Participant's Account has been made in
full in accordance with Section 7, a Participant's Account shall be credited, as
of each date on which the Corporation pays a dividend on its Common Stock
("Dividend Payment Date"), with additional Deferred Stock Units, the number of
which shall be determined by multiplying (i) the number of Deferred Stock Units
standing to the Participant's credit in his or her Account 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.
7. Payment of Account Balances
Payment with respect to a Participant's Account shall be made in
accordance with the following provisions:
(a) A Participant's Account shall become payable upon the Participant's
Retirement on or after his or her Vesting Date. If a Participant ceases to serve
as a member of the Board of Directors for any reason prior to his or her Vesting
Date, all of the Deferred Stock Units standing to the Participant's credit in
his or her Account shall be forfeited as of the date of such cessation of the
Participant's service.
(b) Except as otherwise provided in (c) below, payment with respect to a
Participant's Account shall be made in the form of a single lump sum payment.
Such payment shall be made to the Participant or, if the Participant's Account
becomes payable by reason of his or her death, to the Participant's Beneficiary.
Payment shall be made on the first business day of the second calendar month
following the month in which the Participant's Retirement occurs.
<PAGE>
(c) A Participant may elect to have payment with respect to his or her
Account made to the Participant, or in the event of the Participant's death, to
his or her Beneficiary, in the form of annual installments payable over a period
of five years, or such greater number of years as the Participant specifies in
his or her election. An election under this Section 7(c) shall be made in
writing, on a form that is provided by the Committee for such purpose and that
is filed by the Participant with the Committee at least one year prior to the
date of the Participant's Retirement or death. Any election so made may be
revoked, and a new election may be made hereunder after such revocation. Any
such revocation or new election shall be made in the same manner, and by the
same date, as described in the second preceding sentence. If a Participant's
Account becomes payable in the form of annual installments, payments shall be
made in accordance with the following provisions:
(i) The first installment payment shall be made on the first
business day of the second calendar month following the month in which the
Participant's Retirement occurs, and the remaining installment payments
shall be made on the anniversary of such payment commencement date in each
succeeding year.
(ii) With each annual installment, payment shall be made with respect
to a number of Deferred Stock Units equal to the quotient resulting from
dividing (A) the total number of Deferred Stock Units included in the
balance of the Participant's Account as of the last day of the calendar
month preceding the date on which such payment is to be made, by (B) the
number of installment payments remaining to be made. Immediately after
each annual installment payment has been made, the number of Deferred
Stock Units included in the balance of the Participant's Account shall be
reduced by the number of Deferred Stock Units with respect to which such
payment was made.
(iii) If the Participant should die before receiving all installment
payments required to be made hereunder with respect to the Participant's
Account, any installment payments remaining to be made at the date of the
Participant's death shall be made to the Participant's Beneficiary in the
same form, at the same times and in the same amounts, as such payments
would have been made to the Participant if he or she had not died.
(d) Payment with respect to any Deferred Stock Units included in the
balance of a Participant's Account shall be made
<PAGE>
(i) by the issuance of one share of Common Stock for each whole Deferred Stock
Unit with respect to which payment is being made, and (ii) in cash, with respect
to any fractional part of a Deferred Stock Unit with respect to which payment is
being made. Notwithstanding the foregoing, the Committee, in its sole
discretion, may determine that payment with respect to any or all of the
Deferred Stock Units included in the balance of a Participant's Account shall be
made in cash instead of in shares of Common Stock. The amount of the cash
payment to be made with respect to any Deferred Stock Unit shall be equal to
(and the amount of the cash payment to be made with respect to any fractional
part of a Deferred Stock Unit shall be based upon) the per share closing price
of the 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.
(e) Notwithstanding any other provision in this Section 7 to the contrary,
payment with respect to any part or all of the Participant's Account may be made
to the Participant or, if the Participant has died, to the Participant's
Beneficiary, on any date earlier than the date on which such payment is to be
made pursuant to such other provisions of this Section 7 if (i) the Participant,
or his or her Beneficiary, r
Requests such early payment and (ii) the Committee, in its sole
discretion, determines that such early payment is necessary to help the
Participant, or his or her Beneficiary, meet an "unforeseeable emergency" within
the meaning of Section 1.457-2(h)(4) of the federal Income Tax Regulations. The
amount that may be so paid may not exceed the amount necessary to meet such
emergency.
8. Change in Control
Notwithstanding any other provision of the Plan to the contrary or any
other optional form of distribution otherwise elected or provided for hereunder,
each Participant shall be permitted to make either one or both of the following
special distribution elections: (a) to have the entire balance of his or her
Account paid in the form of a single lump sum payment in the event of the
Participant's Retirement following a Change in Control, or (b) if a Change in
Control occurs after the Participant's Retirement but before all payments with
respect to his or her Account have been made in accordance with Section 7, to
have the entire remaining unpaid balance of his or her Account at the time of
such Change in Control paid in the form of a single lump sum payment. Any such
election shall be effective only if it is made at least one year prior to the
Change in
<PAGE>
Control and prior to the Participant's Retirement. Any special election made
under clause (a) or (b) above may be revoked, and a new special election may be
made thereunder at any time; provided, however, that any such revocation or new
election shall be effective only if it is made within the election period
specified in the preceding sentence. Any special election, or revocation of a
special election, that may be made hereunder shall be made in the manner set
forth in Section 7(c).
The lump sum payment to be made pursuant to a Participant's special
distribution election under clause (a) or (b) above shall be made as soon as
practicable after the Participant's Retirement or, in the case of a special
election under clause (b) above, following the date of the Change in Control.
Such payment 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, and the
amount of such payment shall be determined as follows:
(i) To the extent that the payment for any of the Participants'
Deferred Stock Units is to be made in cash, the amount of cash to be paid
for such Deferred Stock Units shall be equal to the product of (A) the
number of such Deferred Stock 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 Change in Control (the "Multiplication
Factor").
(ii) To the extent that payment for any of the Participant's Deferred
Stock Units is to be made in shares of Common Stock, the number of shares
of Common Stock to be issued with respect to such Deferred Stock Units
shall be determined by dividing (A) the product of (y) the number of such
Deferred Stock 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.
9. Certain Adjustments to Plan Shares
In the event of any change in the shares of Common Stock by reason of any
stock dividend, stock split, recapitalization, reorganization, merger,
consolidation, split-up, combination or exchange of shares, or any rights
offering to purchase Common Stock at a price substantially below fair market
value, or any
<PAGE>
similar change affecting the shares of Common Stock, the number and kind of
shares represented by Deferred Stock Units shall be appropriately adjusted
consistent with such change in such manner as the Committee, in its sole
discretion, may deem equitable to prevent substantial dilution or enlargement of
the rights granted to, or available for, the Participants hereunder. The
Committee shall give notice to each Participant of any adjustment made pursuant
to this Section and, upon such notice, such adjustment shall be effective and
binding for all purposes.
10. Listing and Qualification of Common Shares
The Corporation, in its discretion, may postpone the issuance, delivery,
or distribution of shares of Common Stock with respect to any Deferred Stock
Units until completion of such stock exchange listing or other qualification of
such shares under any state or federal law, rule or regulation as the
Corporation may consider appropriate, and may require any Participant or
Beneficiary to make such representations and furnish such information as it may
consider appropriate in connection with the issuance or delivery of the shares
in compliance with applicable laws, rules and regulations.
11. Designation and Change of Beneficiary
Each Participant shall file with the Committee a written designation of
one or more persons as the Beneficiary who shall be entitled to receive any
amount, or any shares of Common Stock, payable under the Plan upon his or her
death. A Participant may, from time to time, revoke or change his or her
Beneficiary designation without the consent of any previously designated
Beneficiary by filing a new designation with the Committee. The last such
designation received by the Committee shall be controlling; provided, however,
that no designation, or change or revocation thereof, shall be effective unless
received by the Committee prior to the Participant's death, and in no event
shall it be effective as of a date prior to such receipt. If at the date of a
Participant's death, there is no designation of a Beneficiary in effect for the
Participant pursuant to the provisions of this Section 11, or if no Beneficiary
designated by the Participant in accordance with the provisions hereof survives
to receive any amount, or any shares of Common Stock, payable under the Plan by
reason of the Participant's death, the Participant's estate shall be treated as
the Participant's Beneficiary for purposes of the Plan.
<PAGE>
12. Rights of Participants
A Participant's rights and interests under the Plan shall be subject to
the following provisions:
(a) A Participant shall have the status of a general unsecured creditor of
the Corporation with respect to his or her right to receive any payment under
the Plan. The Plan shall constitute a mere promise by the Corporation 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.
(b) A Participant's rights to payments under the Plan shall not be subject
in any manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors of the Participant or his
or her Beneficiary.
(c) Neither the Plan nor any action taken hereunder shall be construed as
giving any Participant any right to be retained as a member of the Board of
Directors.
13. Administration
The Plan shall be administered by the Committee. A majority of the members
of the Committee shall constitute a quorum. The Committee may act at a meeting,
including a telephone meeting, by action of a majority of the members present,
or without a meeting by unanimous written consent. In addition to the
responsibilities and powers assigned to the Committee elsewhere in the Plan, the
Committee shall have the authority, in its discretion, to establish from time to
time guidelines or regulations for the administration of the Plan, interpret the
Plan, and make all determinations considered necessary or advisable for the
administration of the Plan. The Committee may delegate any ministerial or
nondiscretionary function pertaining to the administration of the Plan to any
one or more officers or employees of the Corporation or any subsidiary of the
Corporation.
All decisions, actions or interpretations of the Committee under the Plan
shall be final, conclusive and binding upon all parties. Notwithstanding the
foregoing, any determination made by the Committee after the occurrence of a
Change in Control 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.
<PAGE>
14. Amendment or Termination
The Board of Directors may, with prospective or retroactive effect, amend,
suspend or terminate the Plan or any portion thereof at any time; provided,
however, that Section 7(a), Section 8, the last sentence of Section 13, this
Section 14, and the definitions of Change in Control and Vesting Date in Section
2, may not be amended, and the Plan may not be suspended or terminated, (i) at
the request of a third party who has indicated an intention or taken steps to
effect a Change in Control and who effectuates a Change in Control, (ii) within
six months prior to, or otherwise in connection with, or in anticipation of, a
Change in Control which has been threatened or proposed and which actually
occurs, or (iii) following a Change in Control, if the amendment, suspension or
termination adversely affects the rights of any Participant under the Plan. In
addition, no amendment, suspension or termination of the Plan shall deprive any
Participant of any rights with respect to Deferred Stock Units previously
credited to his or her Account under the Plan without his or her written
consent.
15. Successor Corporation
The obligations of the Corporation under the Plan shall be binding upon
any successor corporation or organization resulting from the merger,
consolidation or other reorganization of the Corporation, or upon any successor
corporation or organization succeeding to substantially all of the assets and
business of the Corporation. The Corporation agrees that it will make
appropriate provision for the preservation of Participants' rights under the
Plan in any agreement or plan which it may enter into or adopt to effect any
such merger, consolidation, reorganization or transfer of assets
Exhibit E-4
Form U-13-60
Mutual and Subsidiary Service Companies
Revised February 7, 1980
ANNUAL REPORT
FOR THE PERIOD
Beginning January 1, 1997 and Ending December 31, 1997
--------------- -----------------
TO THE
U.S. SECURITIES AND EXCHANGE COMMISSION
OF
GPU INTERNATIONAL, 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:
GPU, INC.
---------
<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
ACCOUNTS RECEIVABLE FROM ASSOCIATE
COMPANIES Schedule V 10
FUEL STOCK EXPENSES UNDISTRIBUTED Schedule VI 11
STORES EXPENSE UNDISTRIBUTED Schedule VII 12
MISCELLANEOUS CURRENT AND ACCRUED ASSETS Schedule VIII 13
MISCELLANEOUS DEFERRED DEBITS Schedule IX 14
RESEARCH, DEVELOPMENT, OR DEMONSTRATION
EXPENDITURES Schedule X 15
PROPRIETARY CAPITAL Schedule XI 16
LONG-TERM DEBT Schedule XII 17
CURRENT AND ACCRUED LIABILITIES Schedule XIII 18
NOTES TO FINANCIAL STATEMENTS Schedule XIV 19
COMPARATIVE INCOME STATEMENT Schedule XV 20
- ----------------------------
ANALYSIS OF BILLING - ASSOCIATE COMPANIES Account 457 21
ANALYSIS OF BILLING - NONASSOCIATE COMPANIES Account 458 22
ANALYSIS OF CHARGES FOR SERVICE - ASSOCIATE
AND NONASSOCIATE COMPANIES Schedule XVI 23
SCHEDULE OF EXPENSE BY DEPARTMENT OR
SERVICE FUNCTION Schedule XVII 24-25
DEPARTMENTAL ANALYSIS OF SALARIES Account 920 26
OUTSIDE SERVICES EMPLOYED Account 923 27
EMPLOYEE PENSIONS AND BENEFITS Account 926 28
GENERAL ADVERTISING EXPENSES Account 930.1 29
MISCELLANEOUS GENERAL EXPENSES Account 930.2 30
RENTS Account 931 31
TAXES OTHER THAN INCOME TAXES Account 408 32
DONATIONS Account 426.1 33
OTHER DEDUCTIONS Account 426.5 34
NOTES TO STATEMENT OF INCOME Schedule XVIII 35
<PAGE>
3
LISTING OF INSTRUCTIONAL FILING REQUIREMENTS Page
- --------------------------------------------
Number
- ---------------------------------------------------------------------------
Description of Reports or Statements
- ---------------------------------------------------------------------------
ORGANIZATION CHART 36
- ------------------
METHODS OF ALLOCATION 37
- ---------------------
ANNUAL STATEMENT OF COMPENSATION FOR USE 38
- ----------------------------------------
OF CAPITAL BILLED
- -----------------
VENTURE DISCLOSURES 39
- -------------------
EXHIBIT 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 GPU Inc., SEC Form U5S for the year 1997.
<PAGE>
4
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
SCHEDULE I - COMPARATIVE BALANCE SHEET
--------------------------------------
Give balance sheet of the Company as of December 31 of the current and prior
year.
- --------------------------------------------------------------------------------
ACCOUNT ASSETS AND OTHER DEBITS AS OF DECEMBER 31
- --------------------------------------------------------------------------------
CURRENT PRIOR
------- -----
SERVICE COMPANY PROPERTY
------------------------
101 Service company property (Schedule II) $ 2,775 $ 1,847
107 Construction work in progress (Schedule II) 126,665 50,726
------- -------
Total Property 129,440 52,573
108 Less accumulated provision for depreciation
and amortization of service company
property (Schedule III) 1,068 709
------- -------
Net Service Company Property 128,372 51,864
------- -------
INVESTMENTS
-----------
123 Investments in assoc. companies (Schedule IV) 65,564 56,704
124 Other investments (Schedule IV) 47,493 42,603
------- -------
Total Investments 113,057 99,307
- - ------- -------
CURRENT AND ACCRUED ASSETS
--------------------------
131 Cash 4,203 262
134 Special deposits 16,102 19,895
135 Working funds - -
136 Temporary cash investments (Schedule IV) - 16,700
141 Notes receivable 28,226 2,233
143 Accounts receivable 10,778 2,052
144 Accumulated provision for uncollectible
accounts - -
146 Accounts receivable from associate
companies (Schedule V) 7,536 24,623
152 Fuel stock expenses undistributed
(Schedule VI) - -
154 Materials and supplies - -
163 Stores expense undistributed (Schedule VII) - -
165 Prepayments 1,717 341
171 Interest Receivable 132 -
174 Miscellaneous current and accrued
assets (Schedule VIII) 4,318 6,359
------- -------
Total Current and Accrued Assets 73,012 72,465
------- -------
DEFERRED DEBITS
---------------
181 Unamortized debt expense - -
184 Clearing accounts - -
186 Miscellaneous deferred debits (Schedule IX) 1,258 749
188 Research, development, or demonstration
expenditures (Schedule X) - -
190 Accumulated deferred income taxes 2,892 777
------- -------
Total Deferred Debits 4,150 1,526
------- -------
TOTAL ASSETS AND OTHER DEBITS $318,591 $225,162
======= =======
<PAGE>
5
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
- --------------------------------------------------------------------------------
SCHEDULE I - COMPARATIVE BALANCE SHEET
--------------------------------------
- --------------------------------------------------------------------------------
ACCOUNT LIABILITIES AND PROPRIETARY CAPITAL AS OF DECEMBER 31
- ---------------------------------------------------------------------------
CURRENT PRIOR
------- -----
PROPRIETARY CAPITAL
-------------------
201 Common stock issued (Schedule XI) $ - $ 100
211 Miscellaneous paid-in-capital (Schedule XI) 136,466 129,466
215 Appropriated retained earnings (Schedule XI) - -
216 Unappropriated retained earnings (deficit)
(Schedule XI) (19,291) 1,053
------- -------
Total Proprietary Capital 117,275 130,619
------- -------
LONG-TERM DEBT
--------------
223 Advances from assoc. companies (Schedule XII) - -
224 Other long-term debt (Schedule XII) 124,600 62,300
225 Unamortized premium on long-term debt - -
226 Unamortized discount on long-term debt-debit - -
------- -------
Total Long-term Debt 124,600 62,300
------- -------
CURRENT AND ACCRUED LIABILITIES
-------------------------------
231 Notes payable 1,500 -
232 Accounts payable 9,588 6,534
233 Notes payable to associate
companies (Schedule XIII) - -
234 Accounts payable to associate
companies (Schedule XIII) 6,600 616
236 Taxes accrued - -
237 Interest accrued 2,138 154
238 Dividends declared - -
241 Tax collections payable 307 -
242 Miscellaneous current and accrued
liabilities (Schedule XIII) 17,163 3,427
------ -----
Total Current and Accrued Liabilities 37,296 10,731
------ ------
DEFERRED CREDITS
----------------
253 Other deferred credits 29,986 9,312
255 Accumulated deferred investment tax credits - -
------- -------
Total Deferred Credits 29,986 9,312
------- -------
282 ACCUMULATED DEFERRED INCOME TAXES 9,434 12,200
---------------------------------
TOTAL LIABILITIES AND PROPRIETARY
CAPITAL $318,591 $225,162
======= =======
<PAGE>
6
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
SCHEDULE II - SERVICE COMPANY PROPERTY
--------------------------------------
- --------------------------------------------------------------------------------
BALANCE AT RETIREMENTS OTHER BALANCE AT
BEGINNING ADDITIONS OR CHANGES 1/ CLOSE OF
DESCRIPTION OF YEAR SALES YEAR
- --------------------------------------------------------------------------------
SERVICE COMPANY PROPERTY
- ------------------------
Account
- -------
301 ORGANIZATION
303 MISCELLANEOUS
INTANGIBLE PLANT
304 LAND & LAND RIGHT $ 96 $ 56 $ - $ - $ 152
305 STRUCTURES AND
IMPROVEMENTS
306 LEASEHOLD
IMPROVEMENTS 356 423 - - 779
307 EQUIPMENT 2/ - 16 - - 16
-
308 OFFICE FURNITURE
AND EQUIPMENT 1,395 420 (8) - 1,807
309 AUTOMOBILES, OTHER
VEHICLES AND
RELATED GARAGE
EQUIPMENT - 21 - - 21
310 AIRCRAFT AND
AIRPORT EQUIPMENT
311 OTHER SERVICE
COMPANY PROPERTY 3/
----- ------ ----- ---- ------
SUB-TOTAL 1,847 936 (8) - 2,775
----- ------ ----- ---- ------
107 CONSTRUCTION WORK
IN PROGRESS 4/ 50,726 77,267 (1,328) - 126,665
-
------ ------ ------- ---- -------
TOTAL $52,573 $78,203 $(1,336) $ - $129,440
====== ====== ====== ==== =======
- --------------------------------------------------------------------------------
1/ PROVIDE AN EXPLANATION OF THOSE CHANGES CONSIDERED MATERIAL:
<PAGE>
7
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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:
- --------------------------------------------------------------------------------
BALANCE AT
SUBACCOUNT DESCRIPTION ADDITIONS CLOSE OF
YEAR
----
N/A
------ ----
TOTAL $ - $ -
====== ====
- --------------------------------------------------------------------------------
3/ DESCRIBE OTHER SERVICE COMPANY PROPERTY:
N/A
- --------------------------------------------------------------------------------
4/ DESCRIBE CONSTRUCTION WORK IN PROGRESS:
THE CONSTRUCTION WORK IN PROGRESS ACCOUNT REPRESENTS THE COSTS INCURRED AS
OF 12/31/97 TO BUILD THE PLANT WHICH WILL BE A 300 MEGAWATT GAS-FIRED
COGENERATION FACILITY LOCATED IN THE TOWN OF KATHLEEN, GEORGIA (HOUSTON
COUNTY). ENERGY AND CAPACITY WILL BE SOLD TO GEORGIA POWER COMPANY AND STEAM
WILL BE SOLD TO THE ADJOINING FRITO LAY PLANT. CONSTRUCTION BEGAN IN
NOVEMBER 1996 AND COMMERCIAL OPERATION IS SCHEDULED FOR JUNE 1998.
<PAGE>
8
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
SCHEDULE III
------------
ACCUMULATED PROVISION FOR DEPRECIATION AND
AMORTIZATION OF SERVICE COMPANY PROPERTY
----------------------------------------
- --------------------------------------------------------------------------------
BALANCE AT ADDITIONS BALANCE
BEGINNING CHARGED OTHER CHANGES CLOSE OF
DESCRIPTION OF YEAR TO RETIREMENTS ADD (DEDUCT)1/ YEAR
ACCOUNT 403
- --------------------------------------------------------------------------------
Account
- -------
301 ORGANIZATION
303 MISCELLANEOUS
INTANGIBLE PLANT
304 LAND & LAND RIGHTS
305 STRUCTURES AND
IMPROVEMENTS
306 LEASEHOLD
IMPROVEMENTS $ 16 $ 34 $ - - $ 50
307 EQUIPMENT
308 OFFICE FURNITURE
AND FIXTURES 693 314 - - $1,007
309 AUTOMOBILES, OTHER
VEHICLES AND
RELATED GARAGE
EQUIPMENT - 11 - - 11
310 AIRCRAFT AND
AIRPORT EQUIPMENT
311 OTHER SERVICE
COMPANY PROPERTY
--- --- ---- --- -----
$709 $359 $ - - $1,068
=== === ==== === =====
- --------------------------------------------------------------------------------
1/ PROVIDE AN EXPLANATION OF THOSE CHANGES CONSIDERED MATERIAL:
N/A
<PAGE>
9
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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
DESCRIPTION BEGINNING CLOSE OF
OF YEAR YEAR
- --------------------------------------------------------------------------------
ACCOUNT 123 - INVESTMENT IN ASSOCIATE COMPANIES
PRIME ENERGY LIMITED PARTNERSHIP $ 5,747 $ 7,410
OLS POWER LIMITED PARTNERSHIP - -
ONONDAGA COGENERATION LIMITED PARTNERSHIP 18,183 13,513
SELKIRK CORPORATION PARTNERS, L.P. 14,343 12,105
BROOKLYN ENERGY LIMITED PARTNERSHIP (420) -
LAKE COGEN LIMITED PARTNERSHIP 3,354 16,338
PROJECT ORANGE ASSOCIATES L.P. 29 -
PASCO COGEN LIMITED 15,468 16,199
------- ------
TOTAL $56,704 $65,565
======= =======
ACCOUNT 124 - OTHER INVESTMENTS
GPU SOLAR (INVESTMENT 50% OWNERSHIP) $ - $ (13)
CO. OWNED LIFE INSURANCE -
CASH SURRENDER VALUE 50 $ 68
BALLARD GENERATION SYSTEMS, INC. (EQUITY
INVESTMENT 10.07% OWNERSHIP) 6,064 10,773
POLSKY ENERGY CORP (906 SHS. CLASS D VOTING
& 1894 CLASS C NON VOTING) 5,060 -
CARRIED INTEREST - SYRACUSE ORANGE PARTNERS 1,886 1,886
LONG-TERM RECEIVABLES - ASSOCIATE COMPANIES 11,897 17,288
INTANGIBLE ASSETS - NCP ACQUISITION 16,694 16,243
ENVIROTECH INVESTMENT FUND 855 1,151
BALLARD POWER SYSTEMS, INC. (WARRANTS TO
ACQUIRE 100,000 COMMON SHARES) 97 97
------ ------
TOTAL $42,603 $47,493
======= =======
<PAGE>
10
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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
DESCRIPTION BEGINNING CLOSE OF
OF YEAR YEAR
- --------------------------------------------------------------------------------
ACCOUNT 146 - ACCOUNTS RECEIVABLE FROM ASSOCIATE
COMPANIES $24,623 $7,604
------ -----
TOTAL $24,623 $7,604
====== =====
ANALYSIS OF CONVENIENCE OR ACCOMMODATION PAYMENTS: TOTAL
PAYMENTS
--------
N/A
-------
TOTAL PAYMENTS -
=======
<PAGE>
11
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------
DESCRIPTION LABOR EXPENSES TOTAL
- --------------------------------------------------------------------------------
ACCOUNT 152 - FUEL STOCK EXPENSES UNDISTRIBUTED
N/A
----- ----- ---
TOTAL - - -
===== ===== ===
- --------------------------------------------------------------------------------
SUMMARY:
<PAGE>
12
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------
DESCRIPTION LABOR EXPENSES TOTAL
- --------------------------------------------------------------------------------
ACCOUNT 163 - STORES EXPENSE UNDISTRIBUTED
N/A
----- ----- ---
TOTAL - - -
===== ===== ===
<PAGE>
13
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1997
-----------------
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
DESCRIPTION BEGINNING CLOSE OF
OF YEAR YEAR
- --------------------------------------------------------------------------------
ACCOUNT 174 - MISCELLANEOUS CURRENT AND ACCRUED
ASSETS
LIHI OPTION $3,000 $ -
DEFERRED TAX ASSET 3,359 -
MINORITY INTEREST - LAKE COGEN 4,250
----- -----
TOTAL $6,359 $4,250
===== =====
<PAGE>
14
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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
DESCRIPTION BEGINNING CLOSE OF
OF YEAR YEAR
- --------------------------------------------------------------------------------
ACCOUNT 186 - MISCELLANEOUS DEFERRED DEBITS
DEFERRED FINANCING COSTS $ 749 $1,258
<PAGE>
15
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------
DESCRIPTION AMOUNT
- --------------------------------------------------------------------------------
ACCOUNT 188 - RESEARCH, DEVELOPMENT, OR DEMONSTRATION
EXPENDITURES
N/A
NOTE:
<PAGE>
<TABLE>
16
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
<CAPTION>
-----------------
- ------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE XI - PROPRIETARY CAPITAL
- ------------------------------------------------------------------------------------------------------------------------------------
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*
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
INSTRUCTIONS: Classify amounts in each account with brief explanation, disclosing the general nature of
transactions which gave rise to the reported amounts.
</FN>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION AMOUNT
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
ACCOUNT 211 - MISCELLANEOUS PAID-IN CAPITAL $136,466
ACCOUNT 215 - APPROPRIATED RETAINED EARNINGS 0
-------
TOTAL $136,466
========
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
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.
</FN>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
BALANCE AT NET INCOME CUMULATIVE BALANCE AT
DESCRIPTION BEGINNING OR DIVIDENDS TRANSLATION CLOSE OF
OF YEAR (LOSS) PAID ADJUSTMENT YEAR
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ACCOUNT 216 - UNAPPROPRIATED RETAINED EARNINGS 1,047 (13,362) - - (12,315)
Recognition of Lake Cogen, Ltd.
Accumulated Deficit at Date of
Consolidatation (June 4, 1997) - (6,976) - - (6,976)
------- ------- ------- ------- ------
TOTAL $ 1,047 $(20,338) $ - $ - $(19,291)
======= ======== ======= ======= ======
* In Whole Dollars
</TABLE>
<PAGE>
<TABLE>
17
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
<FN>
-----------------
- ------------------------------------------------------------------------------------------------------------------------------------
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.
</FN>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
TERMS OF OBLIG DATE BALANCE AT BALANCE AT
NAME OF CREDITOR 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> <C>
ACCOUNT 223 - ADVANCES FROM ASSOCIATE
COMPANIES:
NONE
ACCOUNT 224 - OTHER LONG-TERM DEBT:
JOHN HANCOCK INSTITUTIONAL JUN 2018 9.02% $20,000 $ 9,250 $ - $ 29,250
LOAN (22 YRS)
PRUDENTIAL INSTITUTIONAL JUN 2018 9.02% 20,000 9,250 - 29,250
LOAN(22 YRS)
THE BANK OF EQUITY BRIDGE LOAN (1) 5.5625% 22,300 9,700 - 32,000
NOVA SCOTIA
THE BANK OF PROJECT LOAN 2014 5.9375% - 27,400 - 27,400
NOVA SCOTIA
" " 2014 5.9648% - 5,700 - 5,700
" " 2014 5.9688% - 1,000 - 1,000
------------------------------------------
$62,300 $ 62,300 $ - $124,600
==========================================
<FN>
1/ GIVE AN EXPLANATION OF DEDUCTIONS: Payments per agreements.
(1) The Bridge loan matures on the earliest to occur of (a)the completion date
of the facility as defined, (b) December 1, 1998, (c) an equity investment
into Mid Georgia Cogen is made, or (d)other circumstances that would
require repayment under the construction contract or Project Loan
Agreements.
</FN>
</TABLE>
<PAGE>
18
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
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
DESCRIPTION BEGINNING END
OF YEAR OF YEAR
- --------------------------------------------------------------------------------
ACCOUNT 233 - NOTES PAYABLE TO ASSOCIATE COMPANIES
NONE
------ ----
TOTAL - -
====== ====
- --------------------------------------------------------------------------------
ACCOUNT 234 - ACCOUNTS PAYABLE TO ASSOCIATE
COMPANIES
GPU SERVICE CORPORATION $ 541 $1,224
SYRACUSE ORANGE PARTNERS 75 75
GPU ELECTRIC - 5,085
MID-GEORGIA - 216
------ -----
TOTAL $ 616 $6,600
====== -----
- --------------------------------------------------------------------------------
ACCOUNT 242 - MISCELLANEOUS CURRENT AND ACCRUED
LIABILITIES
ACCRUALS - DEVELOPMENT EXPENSE $ 173 $ -
- EMPLOYEE BENEFITS 180 888
- ACCRUED CAPITALIZED COSTS 64 -
- EMPLOYEE BONUS 900 823
- VACATION 611 779
- AUDIT FEES 57 109
- LEGAL FEES 819 403
- EXPENSE REPORTS 81 -
- INSURANCE 33 -
- CONSULTING 216 -
- GST TAX 67 51
- RELOCATION 190 199
- ACCRUED CONST. CONTIN. - 3,280
- ACCRUED OVERHAUL - 3,841
- OTHER - 693 A
- ACCRUED MANAGEMENT FEES - 64
- INTEREST PAYABLE - 2,138
- UNBILLED SERVICES - 1,856
- POTENTIAL ASSESSMENTS - 2,000
- 9 ITEMS LESS THAN $10,000 36 39
------ ------
TOTAL $ 3,427 $17,163
====== ======
A GCC 19
EI SERVICES, INC.-SALARY 18
LAKE 641
EI CANADA CONS. 11
NCP 4
------
693
===
<PAGE>
19
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------
The Notes to Financial Statements of GPU International, Inc. will be filed
separately under a request for confidential treatment under Rule 104(b).
<PAGE>
20
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------------
SCHEDULE XV
-----------
STATEMENT OF INCOME
-------------------
- --------------------------------------------------------------------------------
ACCOUNT DESCRIPTION CURRENT YEAR PRIOR YEAR
- --------------------------------------------------------------------------------
INCOME
- ------
457 Services rendered to associate companies $ 38,727 $ 17,125
458 Services rendered to nonassociate companies - -
421 Equity earnings (losses) (11,421) (4,028)
421 Interest and dividend income 2,497 2,086
421 Gain on sale of asset (950) 9,409
------- -------
Total Income 28,853 24,592
------- -------
EXPENSE
-------
920 Salaries and wages 6,263 3,250
921 Office supplies and expenses 405 379
922 Administrative expense transferred
credit - -
923 Outside services employed 7,610 3,818
924 Property insurance 173 168
925 Injuries and damages - -
926 Employee pensions and benefits 1,200 1,093
928 Regulatory commission expense - -
930.1 General advertising expenses - -
930.2 Miscellaneous general expenses 26,600 5,246
931 Rents 722 572
932 Maintenance of structures and equipment - -
403 Depreciation and amortization expense 500 902
408 Taxes other than income taxes 656 727
409 Income taxes (1,594) (5,922)
410 Provision for deferred income taxes (1,521) 7,635
411 Provision for deferred income taxes -
credit - -
411.5 Investment tax credit - -
426.1 Donations 20 -
426.5 Other deductions 468 (3)
427 Interest on long-term debt 112 485
430 Interest on debt to associate
companies - -
431 Other interest expense 601 329
------- -------
Total Expense 42,215 18,679
------- -------
Net Income or (Loss) $(13,362) $ 5,913
======= =======
<PAGE>
21
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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 $ 2,208 $ - $ - $ 2,208
OLS POWER LIMITED PARTNERSHIP 579 - - 579
ONONDAGA COGENERATION LIMITED
PARTNERSHIP 733 - - 733
EI SERVICES CANADA 2,765 - - 2,765
TERMOBARRANQUILLA, S.A. EMPRESA
DE SERVICIOS PUBLICOS (TEBSA) 6,625 - - 6,625
SEF COGENERATION CORPORATION 524 - - 524
LAKE COGEN LIMITED 22,247 - - 22,427
PROJECT ORANGE ASSOCIATES 721 - - 721
MID GEORGIA COGEN 586 - - 586
PASCO COGEN LIMITED 190 - - 190
POLSKY ENERGY CORP. SALE 585 - - 585
EI SERVICES, INC. 784 - - 784
------ --- --- -----
TOTAL $38,727 $ - $ - $38,727
====== === === ======
<PAGE>
<TABLE>
22
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------------
- ------------------------------------------------------------------------------------------------------------------------------------
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
------- -------- ------------ ---------- BILLED
<S> <C> <C> <C> <C>
458-1 458-2 458-3 458-4
- ------------------------------------------------------------------------------------------------------------------------------------
NOT APPLICABLE
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
INSTRUCTION: Provide a brief description of the services rendered to each nonassociated company:
</FN>
</TABLE>
<PAGE>
<TABLE>
23
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- ------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE XVI
------------
ANALYSIS OF CHARGES FOR SERVICE
-------------------------------
ASSOCIATE AND NONASSOCIATE COMPANIES
------------------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
ASSOCIATE COMPANY CHARGES NONASSOC. CO. 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>
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
<FN>
- ------------------------------------------------------------
INSTRUCTION: Total cost of service will equal
for associate and nonassociate
companies the total amount billed
under their separate analysis of
billing schedules.
- -----------------------------------------------------------
</FN>
TOTAL EXPENSES =
COMPENSATION FOR USE OF EQUITY CAPITAL =
430 INTEREST ON DEBT TO ASSOCIATE
COMPANIES =
TOTAL COST OF SERVICE =
------------------------------
</TABLE>
<PAGE>
<TABLE>
24
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- -------------------------------------------------------------------------------------------------------------
SCHEDULE XVII
-------------
SCHEDULE OF EXPENSE DISTRIBUTION
--------------------------------
BY
DEPARTMENT OR SERVICE FUNCTION
- -------------------------------------------------------------------------------------------------------------
DEPARTMENT OR SERVICE FUNCTION
------------------------------
<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>
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
<FN>
- -----------------------------------------------
INSTRUCTION: Indicate each department or
service function. (See Instruc-
tion 01-3 General Structure of
Accounting System: Uniform
System Account)
- ----------------------------------------------
- -------------------------------------------------------------------------------------------------------------
TOTAL EXPENSES =
- -----------------------------------
</FN>
</TABLE>
<PAGE>
25
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------------------------
For the Year Ended December 31, 1997
------------------------------------
- --------------------------------------------------------------------------------
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>
26
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
DEPARTMENTAL ANALYSIS OF SALARIES
---------------------------------
ACCOUNT 920
- --------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------
GPU International, Inc. $ 6,263 $ 6,263 $ - $ - 81
------- ------- ------ ----- -----
TOTAL $ 6,263 $ 6,263 $ - $ - 81
======= ======= ====== ===== =====
<PAGE>
27
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
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
- --------------------------------------------------------------------------------
Schedule of Outside Services Employed for GPU International, Inc. will be filed
separately under a request for confidential treatment.
<PAGE>
28
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------
DESCRIPTION AMOUNT
- --------------------------------------------------------------------------------
HEALTH AND DENTAL INSURANCE $ 344
PENSION PLANS 144
EMPLOYEE SAVINGS PLAN 212
VACATION ACCRUAL 246
DEFERRED COMPENSATION 124
OTHER PAYROLL EXPENSES 85
4 OTHER BENEFITS (Under $25,000) 45
------
TOTAL $ 1,200
======
<PAGE>
29
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------
DESCRIPTION NAME OF PAYEE AMOUNT
- --------------------------------------------------------------------------------
NONE
----
TOTAL -
====
<PAGE>
30
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------
DESCRIPTION AMOUNT
- --------------------------------------------------------------------------------
Employee Travel Expense $ 785
Employee Recruiting and Relocation Expense 430
Employee Training Expense 65
Other 99
Reimbursed O&M Costs 3,197
Operating Expenses - Lake Cogen 22,024
------
TOTAL $26,600
======
<PAGE>
31
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------
TYPE OF PROPERTY AMOUNT
OFFICE SPACE $ 722
------
TOTAL $ 722
======
<PAGE>
32
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------
KIND OF TAX AMOUNT
- --------------------------------------------------------------------------------
(1) U.S. GOVERNMENT TAXES
---------------------
FEDERAL UNEMPLOYMENT COMPENSATION $ 6
FICA 416
---
Sub Total 422
---
(2) OTHER THAN U.S. GOVERNMENT TAXES
--------------------------------
NEW YORK GROSS RECEIPTS TAXES 183
SUI 51
--
Sub Total 234
---
TOTAL $ 656
======
<PAGE>
33
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------
National Rowing Foundation U.S. Women's Rowing Team $ 5,000
In Belgium for the World
Champion Competition
New York Metro Committee Holiday Contribution at 15,000
For UNICEF December 1997
5 Others (Under $3,000) 575
------
$20,575
=======
<PAGE>
34
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------------------------
For the Year Ended December 31, 1997
------------------------------------
- --------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------
DESCRIPTION NAME OF PAYEE AMOUNT
- --------------------------------------------------------------------------------
FOREIGN CURRENCY EXCHANGE GAIN $ 468
<PAGE>
35
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------
The Notes to Financial Statements of GPU International, Inc. will be filed
separately under a request for confidential treatment under Rule 104(b).
<PAGE>
36
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
For the Year Ended December 31, 1997
-----------------
- --------------------------------------------------------------------------------
ORGANIZATION CHART
------------------
- --------------------------------------------------------------------------------
------------------------------------------
| |
| |
| |
| BOARD OF DIRECTORS |
| Chairman |
|------------------------------------------|
| |
| PRESIDENT & CEO |
|----------------------------------------|
| |
| EXECUTIVE V.P. |
| BUSINESS OPERATIONS |
|--------------------------------------|
| |
| DIRECTOR, LEGAL & CORPORATE |
| AFFAIRS AND CORPORATE SECRETARY |
|------------------------------------|
| |
| V.P. OF FINANCE AND TREASURER |
| -----------------------------------|
| |
| V.P. PROJECT MANAGEMENT & |
| TECHNOLOGY RESOURCES |
|------------------------------------|
| |
| V.P. & COMPTROLLER |
|------------------------------------|
| |
| V.P. BUSINESS MANAGEMENT |
|------------------------------------|
| |
| V.P. TECHNOLOGY VENTURES |
|------------------------------------|
| |
| GENERAL MANAGER - LATIN AMERICA |
|------------------------------------|
| |
| GENERAL MANAGER - AUSTRALIA |
|------------------------------------|
| |
| EXECUTIVE V.P. - PHILIPPINES |
|------------------------------------|
| |
| DIRECTOR ACCOUNTING/ |
| ASSISTANT COMPTROLLER |
|------------------------------------|
<PAGE>
37
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
- --------------------------------------------------------------------------------
METHODS OF ALLOCATION
---------------------
- --------------------------------------------------------------------------------
Not Applicable
<PAGE>
38
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
- --------------------------------------------------------------------------------
ANNUAL STATEMENT OF COMPENSATION FOR USE OF CAPITAL BILLED
----------------------------------------------------------
- --------------------------------------------------------------------------------
NONE
<PAGE>
39
ANNUAL REPORT OF GPU INTERNATIONAL, 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>
40
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
----------------------
- --------------------------------------------------------------------------------
EXHIBIT
-------
- --------------------------------------------------------------------------------
The following information is provided in accordance with an Amendment No. 3 to
the GPUI Application on Form U-1 dated December 13, 1997 (SEC File No. 70-8913)
filed under the Public Utility Holding Company Act of 1935.
(a) Each investment made by GPUI in a Subsidiary or the Enterprise, as defined
in the Amendment, during 1996.
In December 1996, GPUI and Ballard Power Systems (BPS) entered into an agreement
for the commercialization of stationary fuel cell power plants. Under the terms
of the agreement, BPS created a new subsidiary, Ballard Generation Systems, Inc.
(BGS) which will develop, manufacture and market stationary fuel cell power
plants worldwide and will be based in British Columbia, Canada. BPS will supply
the fuel cells for these power plants. GPUI has committed to invest $23.25
million over the next two years in BGS for up to a 19.3% equity interest in BGS,
two 250 KW fuel cell power plants for field trials, and non-transferable
warrants to purchase 100,000 common shares in BPS at a price of Canadian $27.45
per share. GPUI has accounted for its purchase of warrants as an investment
having a total cost of $97,000. The warrants have a term of 5 years and are
subject to GPUI making the entire $23.25 million investment by year end 1998.
As of December 31, 1996, GPUI had invested $6,064,000 in BGS which represents a
5.71% interest. As part of this investment, GPUI purchased from BGS the option
to acquire 425,000 shares comprising a combination of Class A Shares, Class B
Shares, or Class C Preferred Shares, as determined by GPUI. The aggregate
purchase price for all the shares to be acquired under the option will be $1.
The options may be exercised by GPUI at any time after GPUI has made payment for
the two field trial fuel cell power plants and before the earlier of December
2001 and the initial public offering of BGS. The assigned value of this option
as of December 31, 1996 is $4,250,000 and is included in Investments, net in the
Consolidated Balance Sheets of GPUI.
GPUI has accounted for its acquisition using the purchase method. As a result,
the Company has recorded approximately $1.6 million as goodwill which is
included in Investments, net on the Consolidated Balance Sheets and will be
amortized over a period of 20 years beginning in January 1997. As of December
31, 1996, GPUI had an investment in BGS of approximately $175,000.
(b) A general description of the activities of the Enterprise in 1997.
In 1997, GPUI paid approximately $4.3 million for the two field trial fuel cell
power plants, which is included in Other noncurrent assets in the Consolidated
Balance Sheets. GPUI expects to take delivery of these field trial fuel cell
power plants by year end 1999. In addition, GPUI invested an additional $5.1
million in BGS, of which $4.9 million represents goodwill. This investment
increased GPUI's aggregate ownership interest in BGS to 10.07%.
As of December 31, 1997, goodwill, net, which is included in Investments, net in
the Consolidated Balance Sheets, amounted to $6.3 million and amortization
expense was $157,890 for the year. GPUI had an investment in BGS of
approximately $184,000 as of December 31, 1997.
(c) The number of GPUI employees providing services to the Enterprise on a
regular basis during the previous year.
ONE
(d) The revenues and expenses of the Enterprise during 1997.
There were no revenues and $4.0 million in expenses.
<PAGE>
ANNUAL REPORT OF GPU INTERNATIONAL, 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.
GPU INTERNATIONAL, 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: 5/1/97
--------------
