SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM U5S
ANNUAL REPORT
For the Year Ended December 31, 1999
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.
FORM U5S
ANNUAL REPORT FOR THE YEAR ENDED DECEMBER 31, 1999
--------------------------------------------------
TABLE OF CONTENTS
-----------------
Item
No. Title Page
------ ------------------------------------------------ -----
<S> <C> <C>
1. System Companies and Investments Therein 1-5
2. Acquisitions or Sales of Utility Assets 6
3. Issue, Sale, Pledge, Guarantee or Assumption
of System Securities 7
4. Acquisition, Redemption or Retirement of
System Securities 8-10
5. Investments in Securities of Nonsystem Companies 11
6. Officers and Directors 12-24
7. Contributions and Public Relations 25
8. Service, Sales and Construction Contracts 26-27
9. Wholesale Generators and Foreign Utility Companies 28-52
10. Financial Statements and Exhibits:
Consolidating Financial Statements,
Schedules and Notes 53-67
Exhibits 68-105
Signature Page 106
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ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1999
Number of Common Shares
or Principal Amount % of (a) Issuer Owner's
Name of Company Owned Voting Power Book Value Book Value
- ------------------------------------------ ---------------------- ------------ ---------- -----------
GPU, Inc. (GPU):
<S> <C> <C> <C> <C>
Jersey Central Power & Light Company (JCP&L)(b) 15,371,270 shs. 100% 1,385,367,104 $1,385,367,104
JCP&L Preferred Capital, Inc. 100 shs. 100 16,965,539 16,965,539
JCP&L Capital L.P. (i) 100 3,866,079 3,866,079
Metropolitan Edison Company (Met-Ed)(b)(c) 859,500 shs. 100 501,416,899 501,416,899
York Haven Power Company 500 shs. 100 19,134,855 19,134,855
Met-Ed Preferred Capital, Inc. 100 shs. 100
Met-Ed Capital, L.P. (i) 100 - -
Met-Ed Preferred Capital II, Inc. 100 shs. 100 3,134,136 3,134,136
Met-Ed Capital II, L.P. (i) 100 3,228,297 3,228,297
Met-Ed Capital Trust (i) 100 - -
Pennsylvania Electric Company (Penelec)(b)(c) 5,290,596 shs. 100 461,167,233 461,167,233
Nineveh Water Company 5 shs. 100 264,991 264,991
Waverly Electric Light & Power Company 600 shs. 100 15,000 15,000
Penelec Preferred Capital, Inc. 100 shs. 100 10,865,944 10,865,944
Penelec Capital, L.P. (i) 100 - -
Penelec Preferred Capital II, Inc. 100 shs. 100 3,130,785 3,130,785
Penelec Capital II, L.P. (i) 100 3,216,762 3,216,762
Penelec Capital Trust (i) 100 - -
GPU Service, Inc. (GPUS) (d) 5,000 shs. 100 1,790,346 1,790,346
GPU Nuclear, Inc. (GPUN) (e) 2,500 shs. 100 53,514 53,514
GPU Advanced Resources, Inc. (GPU AR) (q) 100 shs. 100 14,431,348 14,431,348
GPU Telcom Services, Inc. (GPU Telcom) (r) 100 shs. 100 5,165,695 5,165,695
GPX Acquisition Corp. (p) 100 shs. 100 - -
GPU International, Inc. (GPUI) (f) 100 shs. 100 124,890,292 124,890,292
Elmwood Energy Corporation (f) 10 shs. 100 12,256,329 12,256,329
Prime Energy Limited Partnership (f) (j) 50 21,054,965 10,368,512
Geddes II Corporation (g) 100 shs. 100 7,505,292 7,505,292
Geddes Cogeneration Corporation (f) (g) 100 shs. 100 19,012,336 19,012,336
Onondaga Cogeneration Limited Partnership (f) (g) (l) 100 (8,876,038) (8,876,038)
EI Selkirk, Inc. (f) 1,000 shs. 100 28,588,431 28,586,712
Selkirk Cogeneration Partners Limited
Partnership (f) (g) (n) 19 (50,832,588) 7,758,210
EI Canada Holding Limited (g) 1,000 shs. 100 (101,673) (101,676)
EI Services Canada Limited (g) 1,000 shs. 100 (85,053) (85,053)
EI Brooklyn Power Limited (g) 1,000 shs. 100 (5,813) (5,813)
EI Brooklyn Investments Limited (g) 1,000 shs. 100 (876) (876)
1
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ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1999 (Continued):
Number of Common Shares
or Principal Amount % of (a) Issuer Owner's
Name of Company Owned Voting Power Book Value Book Value
- ------------------------------------------ ---------------------- ------------ ---------- -----------
<S> <C> <C> <C> <C>
NCP Energy, Inc. (f) 1,000 shs. 100 14,267,892 14,267,892
Syracuse Orange Partners L.P. (f) (o) 5 15,017,339 -
NCP Lake Power Inc. (f) 1,000 shs. 100 16,403 16,403
NCP Gem, Inc. (f) 1,000 shs. 100 2,458,026 2,458,026
Lake Investment, L.P. (f) (l) 100 (984,850) (984,853)
Lake Cogen, Ltd. (f) (m) 50 (18,989,617) 2,066,370
GPUI Lake Holdings, Inc. (Inactive) 100 shs. 100 (131) (131)
NCP Pasco, Inc. (f) 1,000 shs. 100 11,443,540 11,443,540
NCP Dade Power, Inc. (f) 1,000 shs. 100 216,671 216,671
Dade Investment, L.P. (f) (l) 100 14,634,224 14,634,224
Pasco Cogen, Ltd. (f) (m) 50 40,838,033 14,980,423
NCP Houston Power Inc. (f) 100 shs. 100 7,470,604 7,470,604
NCP Perry Inc. (f) 100 shs. 100 10,790,598 10,790,598
Mid Georgia Cogen L.P. (f) (j) 50 36,902,224 19,055,789
NCP New York Inc. (f)(Inactive) 1,000 shs. 100 - -
GPU Generation Services - Pasco, Inc. 100 shs. 100 (50,095) (50,095)
GPU Generation Services - Lake, Inc. (Inactive) 100 shs. 100 - -
EI Fuels Corporation 100 shs. 100 5,752 5,752
EI Services, Inc. 100 shs. 100 240,907 240,907
GPU Solar, Inc. 50 shs. 50 599,578 574,814
NCP Ada Power, Inc. (f) (Inactive) 1,000 shs. 100 273,554 273,554
NCP Commerce Power, Inc. (f) (Inactive) 1,000 shs. 100 - -
Umatilla Groves, Inc. (f) (Inactive) 1,000 shs. 100 - -
NCP Brooklyn Power, Inc. (Inactive) 1,000 shs. 100 - -
Armstrong Energy Corporation (f) (Inactive) 100 shs. 100 - -
AEC/REF-Fuel, Limited Partnership (f) (Inactive) (k) 100 - -
GPU Power, Inc. (GPU Power) (g) 1,000 shs. 100 106,729,409 106,768,366
Guaracachi America, Inc. (g) 100 shs. 100 36,861,534 36,861,534
Empresa Guaracachi S.A. (g) 822,779 shs. 50 86,722,035 49,919,927
EI Barranquilla, Inc. (g) 100 shs. 100 28,905,466 28,905,466
Termobarranquilla S.A. (g) 420,592 shs. 29 239,773,905 33,659,397
Barranquilla Lease Holding, Inc. (g) 100 shs. 100 42,837,211 42,837,211
Los Amigos Leasing Company, Ltd. (g) 12,000 shs. 100 (894,894) 12,000
EI International (g) 100 shs. 100 664,749 664,749
GPUI Colombia, Ltda. (g) 100 shs. 100 767,940 767,940
2
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ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1999 (Continued):
Number of Common Shares
or Principal Amount % of (a) Issuer Owner's
Name of Company Owned Voting Power Book Value Book Value
- ------------------------------------------ ---------------------- ------------ ---------- -----------
<S> <C> <C> <C> <C>
GPU Power Philippines, Inc. (g) 100 shs. 100 100 100
Magellan Utilities Development Corporation (g) 17,264 shs. 13 - -
GPU International Asia, Inc. (g) 100 shs. 100 (449,863) (487,956)
GPU Power Ireland, Inc. (g) (Inactive) 100 shs. 100 - -
Hanover Energy Corporation (g) (Inactive) 100 shs. 100 - -
EI Power (China) II, Inc. (g) (Inactive) 100 shs. 100 - -
EI Power (China) III, Inc. (g) (Inactive) 100 shs. 100 - -
Austin Cogeneration Corporation (g) (Inactive) 100 shs. 100 - -
Austin Cogeneration Partners, L.P.(g) (Inactive) (l) 100 - -
International Power Advisors, Inc. (g) 100 shs. 100 1,155,883 1,155,883
GPU Capital, Inc. (GPU Capital) (h) 100 shs. 100 1,064,171,491 1,064,171,391
GPU Electric, Inc. (GPU Electric) (h) 100 shs. 100 1,653,443,429 1,653,443,429
GPU Brasil, Inc. 100 shs. 100 - -
GPU do Brasil, Ltda. 1,000 shs. 100 - -
GPU Sao Paulo, SA 1,000 shs. 100 - -
GPU Argentina Holdings, Inc. (h) 100 shs. 100 377,801,464 370,195,582
GPU Argentine Services Ltd. (h) 100 shs. 100 89,056 89,038
Empresa Distribuidora Electrica
Regional, S.A. (Emdersa) (h) 100 shs. 100 370,195,582 379,534,554
GPU Australia Holdings, Inc. (h) 100 shs. 100 503,089,757 503,089,757
VicGas Holdings, Inc. (h) 100 shs. 100 198,401,957 198,250,137
GPU GasNet Pty Ltd. (h) 100 shs. 100 65 65
Transmission Pipelines Australia
(Asset) Pty Limited (h) 12 shs. 100 (151,686) (151,686)
GPU GasNet Tradings Pty Ltd. 100 shs. 100 - -
Victoria Electric Holdings, Inc. (h) 100 shs. 100 27,026,455 27,026,455
Victoria Electric, Inc. (h) 100 shs. 100 169,385,858 169,384,834
Austran Holdings, Inc. (h) 100 shs. 100 263,045,030 263,045,055
GPU PowerNet Pty Ltd. (h) 10,000,000 shs. 100 11,137,023 11,025,652
Austran Investment, Pty Ltd. (s) 100 1,262,792,760 1,262,792,760
GPU PowerNet Investments, Pty Ltd. (h) (s) 100 413,277,675 210,771,614
GPU International Australia Pty Ltd. 10,000,000 shs. 100 415,971 415,971
EI UK Holdings, Inc. (h) 100 shs. 100 937,010,118 937,010,118
Avon Energy Partners Holdings (h) 660,000 shs. 100 1,169,985,185 1,155,934,628
Avon Energy Partners plc (h) 660,000 shs. 100 2,551,033,158 2,551,033,157
Midlands Electricity plc (h) 392,572,556 shs. 100 2,536,636,121 2,550,686,317
3
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ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1999
(Continued):
Notes:
(a) Sets forth the percentage of voting securities held directly or indirectly
by GPU, Inc.
(b) The business of these electric utility subsidiaries consists primarily of
the transmission, distribution and sale of electricity.
These utility subsidiaries collectively own all of the common stock of
Saxton Nuclear Experimental Corporation, a Pennsylvania nonprofit
corporation organized for nuclear experimental purposes which is now
inactive. The carrying value of the owners' investment has been written
down to a nominal value.
(c) Met-Ed and Penelec are exempt as holding companies under Section 3(a) and
Rule 2 of the Public Utility Holding Company Act of 1935 (the Act).
(d) Provides corporate services to the GPU Companies.
(e) Operates, maintains and manages JCP&L's Oyster Creek Nuclear Generating
Station.
(f) These subsidiaries are independent power producers, which participate in
some or all aspects of promoting, developing, financing, constructing,
owning, managing and operating nonutility qualifying facilities.
(g) These subsidiaries are exempt wholesale generators (EWG) under the
provisions of Section 32 of the Act. These subsidiaries participate in some
or all aspects of promoting, developing, financing, constructing, owning,
managing and operating generation facilities, both domestically and in
foreign countries, the electric energy from which is sold exclusively at
wholesale.
(h) These subsidiaries are foreign utility companies (FUCO) under the
provisions of Section 33 of the Act. These subsidiaries participate in some
or all aspects of promoting, developing, financing, constructing, owning,
managing and operating generation, transmission and distribution facilities
in foreign countries.
(i) A 100% General Partnership interest.
(j) A 1% General Partnership and a 49% Limited Partnership interest.
(k) A 50% General Partnership interest.
(l) A 1% General Partnership and a 99% Limited Partnership interest.
(m) A 1% General Partnership and a 48.9% Limited Partnership interest.
4
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ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1999
(Continued):
(n) A 13.55% preferred equity interest and a 20% common equity interest.
(o) A 5% Limited Partnership interest.
(p) On December 29, 1999, GPX Acquisition Corp. commenced a cash tender offer
to acquire all of the issued and outstanding shares of common stock, $0.01
par value, of MYR Group Inc. (MYR), a Delaware corporation. Following
completion of the Tender Offer in April 2000, GPX Acquisition Corp. was
merged with and into MYR, with MYR surviving the merger. MYR, an
infrastructure service and electrical contracting company headquartered
near Chicago, is a wholly-owned subsidiary of GPU, Inc.
(q) GPU Advanced Resources, Inc.'s lines of business include energy services
and retail energy sales.
(r) GPU Telcom is an exempt telecommunications company that is involved in
telecommunications infrastructure.
(s) These subsidiaries are 100% owned trusts.
5
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ITEM 2. ACQUISITIONS OR SALES OF UTILITY ASSETS
As discussed below, in 1999, Jersey Central Power & Light Company (JCP&L),
Metropolitan Edison Company (Met-Ed) and Pennsylvania Electric Company
(Penelec), together doing business under the name GPU Energy, completed the
sales of the Three Mile Island Unit 1 (TMI-1) nuclear generating station and
substantially all of their fossil-fuel and hydroelectric stations.
The GPU Energy companies sold TMI-1 to AmerGen Energy Company, LLC
(AmerGen), a joint venture of PECO Energy and British Energy, for a total
purchase price of approximately $100 million. The sale did not have a
significant impact on 1999 earnings since TMI-1 had been written down to its
fair market value in 1998. The majority of the amount written down and the
remaining loss from the sale resulted in the deferral of $528.3 million as a
regulatory asset pending separate and further reviews by the New Jersey Board of
Public Utilities (NJBPU) and the Pennsylvania Public Utility Commission (PaPUC).
Penelec sold its 50% interest in the Homer City Station to a subsidiary of
Edison Mission Energy for approximately $900 million. As a result, Penelec
recorded an after-tax gain of $22.6 million in 1999 for the portion of the gain
related to wholesale operations and deferred as a regulatory liability the
remaining pre-tax gain of $590.7 million pending further review by the PaPUC.
Penelec sold its 20% interest in the Seneca Pumped Storage Hydroelectric
Generating Station to The Cleveland Electric Illuminating Company for $43
million. The sale resulted in the recording of an after-tax gain of $1.2 million
in 1999 for the portion of the gain related to wholesale operations and the
deferral of the remaining pre-tax gain of $30.2 million as a regulatory
liability pending further review by the PaPUC.
The GPU Energy companies completed the sales of substantially all of their
remaining fossil fuel and hydroelectric generating facilities to Sithe Energies
(Sithe) for approximately $1.6 billion (JCP&L's 50% interest in Yards Creek was
not included in the sale and the sales of the 66 MW Forked River combustion
turbines and 19 MW York Haven hydroelectric station were postponed). The sale
resulted in the recording of an after-tax gain of $13.4 million in 1999 for the
portion of the gain related to wholesale operations and the deferral of the
remaining pre-tax gain of $706.5 million as a regulatory liability pending
separate and further reviews by the NJBPU and the PaPUC.
6
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ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM SECURITIES
Principal Amount
or Stated Value
Name of Company ------------------------
Name of Issuer Issuing, Selling, Pledged,
and Pledging, Guaranteeing Issued Guaranteed Date of Commission
Title of Issue or Assuming Securities and Sold or Assumed Transaction Proceeds Authorization
(1) (2) (3) (4) (5) (6) (7)
- ------------------ ---------------------- ---------- ---------- ----------- ----------- --------------
Jersey Central Power & Light Company:
- -------------------------------------
<S> <C> <C> <C> <C> <C>
Performance Guarantees JCP&L $ 8,918,060 (a) various n/a Rule 45
===========
Metropolitan Edison Company:
- ---------------------------
Performance Guarantees Met-Ed $ 21,051,094(b) various n/a Rule 45
=============
Pennsylvania Electric Company:
- ------------------------------
Performance Guarantees Penelec $ 43,396,169(c) various n/a Rule 45
===========
<FN>
Notes: (a) Represents letters of credit for workers compensation insurance
($8,876,560), and miscellaneous surety bonds ($41,500).
Notes: (b) Represents letters of credit for workers compensation
insurance ($877,008), surety bonds relating to environmental
issues ($2,467,086), a payment and performance surety bond
($2,180,000), a letter of credit relating to the Middletown
settlement ($14,400,000) and miscellaneous surety bonds for
various purposes ($1,127,000).
Notes: (c) Represents letters of credit for workers compensation
insurance ($3,443,253), surety bonds relating to environmental
issues ($39,359,916), and miscellaneous surety bonds for
various purposes ($593,000).
</FN>
7
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ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES
Name of Company Acquiring Authorization
Name of Issuer or Retiring Securities Consideration Disposition or Exemption
- ------------- ------------------------- ------------- ----------- ------------
JCP&L:
<S> <C> <C> <C> <C>
Cumulative Preferred Stock JCP&L $ 31,243,957 Redeemed Rule 42
============
Met-Ed:
Cumulative Preferred Stock Met-Ed $ 12,610,864 Redeemed Rule 42
============
First Mortgage Bonds Met-Ed $ 30,693,250 Retired Rule 42
============
Penelec:
Cumulative Preferred Stock Penelec $ 17,584,443 Redeemed Rule 42
============
First Mortgage Bonds Penelec $610,016,017 Redeemed Rule 42
============
NOTE: See pages 9 to 10 for a detailed description of the above transactions.
8
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ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES (Continued):
Principal
Name of Issuer Name of Company Amount or Stated Value
and Acquiring, Redeeming or Redeemed Date of Commission
Title of Issue Retiring Securities Acquired and Retired Transaction Consideration Authorization
(1) (2) (3) (4) (5) (6) (7)
- ------------------ ---------------------- ---------- ---------- ----------- ----------- --------------
Jersey Central Power &
Light Company
Cumulative Preferred Stock:
<S> <C> <C> <C> <C> <C>
7.52% Series K JCP&L $ 5,000,000 06-01-99 $ 5,031,674 Rule 42
7.88% Series E JCP&L 25,000,000 12-27-99 26,212,283 Rule 42
------------ ------------
$ 30,000,000 $ 31,243,957
============ ============
Metropolitan Edison
Company
Cumulative Preferred Stock:
<S> <C> <C> <C> <C> <C>
3.90% Series Met-Ed $ 6,438,400 02-19-99 $ 6,834,748
4.35% Series Met-Ed 2,251,700 02-19-99 2,360,727 Rule 42
3.85% Series Met-Ed 925,200 02-19-99 967,056 Rule 42
3.80% Series Met-Ed 798,200 02-19-99 839,842 Rule 42
4.45% Series Met-Ed 1,534,000 02-19-99 1,608,491 Rule 42
------------ ------------
$ 11,947,500 $ 12,610,864
============ ============
Pennsylvania Electric
Company
Cumulative Preferred Stock:
4.40% Series B Penelec $ 2,967,800 02-19-99 $3,241,669 Rule 42
3.70% Series C Penelec 4,956,800 02-19-99 5,245,385 Rule 42
4.05% Series D Penelec 2,821,900 02-19-99 2,975,129 Rule 42
4.70% Series E Penelec 1,410,300 02-19-99 1,499,064 Rule 42
4.50% Series F Penelec 1,708,100 02-19-99 1,798,117 Rule 42
4.60% Series G Penelec 2,683,600 02-19-99 2,825,079 Rule 42
------------ ------------
$ 16,548,500 $ 17,584,443
============ ============
9
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<CAPTION>
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES (Continued):
Principal
Name of Issuer Name of Company Amount or Stated Value
and Acquiring, Redeeming or Redeemed Date of Commission
Title of Issue Retiring Securities Acquired and Retired Transaction Consideration Authorization
(1) (2) (3) (4) (5) (6) (7)
- ------------------ ---------------------- ---------- ---------- ----------- ----------- --------------
Metropolitan Edison
Company
First Mortgage Bonds:
<S> <C> <C> <C> <C> <C>
7.05% Series B, due 1999 Met-Ed $ 30,000,000 11-29-99 $ 30,693,250 Rule 42
============ ============
Pennsylvania Electric
Company
First Mortgage Bonds:
<S> <C> <C> <C> <C> <C>
8.70% Series, due 2001 Penelec $ 30,000,000 04-19-99 $ 30,565,500 Rule 42
7.92% Series, due 2002 Penelec 10,000,000 04-19-99 10,171,600 Rule 42
8.05% Series, due 2006 Penelec 10,000,000 04-19-99 10,174,417 Rule 42
7.43% Series, due 2002 Penelec 30,000,000 04-19-99 30,297,200 Rule 42
7.48% Series, due 2004 Penelec 40,000,000 04-19-99 40,398,933 Rule 42
7.40% Series, due 2002 Penelec 10,000,000 04-19-99 10,098,667 Rule 42
7.40% Series, due 2003 Penelec 10,000,000 04-19-99 10,098,667 Rule 42
8.33% Series, due 2022 Penelec 20,000,000 04-19-99 20,222,133 Rule 42
6.15% Series, due 2000 Penelec 30,000,000 04-19-99 30,246,000 Rule 42
6.60% Series, due 2003 Penelec 30,000,000 04-19-99 30,264,000 Rule 42
7.49% Series, due 2023 Penelec 30,000,000 04-19-99 30,299,600 Rule 42
6.10% Series, due 2004 Penelec 30,000,000 04-19-99 30,549,000 Rule 42
6.35% Series, due 2006 Penelec 40,000,000 04-19-99 40,762,000 Rule 42
6.55% Series, due 2009 Penelec 50,000,000 04-19-99 50,982,500 Rule 42
8.38% Series, due 2024 Penelec 40,000,000 04-19-99 41,005,600 Rule 42
8.61% Series, due 2025 Penelec 30,000,000 04-19-99 30,774,900 Rule 42
7.53% Series, due 2025 Penelec 40,000,000 04-19-99 40,903,600 Rule 42
6.70% Series, due 2005 Penelec 30,000,000 04-19-99 30,603,000 Rule 42
6.80% Series, due 2001 Penelec 20,000,000 04-19-99 20,408,000 Rule 42
7.02% Series, due 2003 Penelec 20,000,000 04-19-99 20,421,200 Rule 42
Variable Rate Series,
due 1999 Penelec 50,000,000 04-19-99 $ 50,769,500 Rule 42
------------ ------------
$600,000,000 $610,016,017
============ ============
10
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<CAPTION>
ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES AS OF DECEMBER 31, 1999
Equity Securities Nature of Owner's
-------------------------------------
Name of Issuer Security Owned Shares Owned % of Voting Power Business Book Value
- -------------- -------------- ----------- ----------------- -------- ----------
Develop, manufacture
and market
<S> <C> <C> <C> <C> <C>
Ballard Generation Common stationary fuel
Systems Inc. Stock 1,490,301 (1) 7.41% cell power system $13,399,920
Develop, manufacture
Ballard Power Common share and market fuel cells
Systems Inc. purchase warrant - - and related systems 97,000
Limited Partnership Investment
EnviroTech Interest - 9.90% company 2,658,952
Waterford
Development Common
Corporation Stock 50 6.25% (2) 5,000
Greater Reading Limited
Development Partnership
Partnership Interest - 5.58% (3) 63,495
Australian Gas Common Australian electric
Light Company Stock 4,569,482 .35% and gas distribution
company 26,946,115
<FN>
(1) Includes 490,300 nonvoting shares.
(2) Participation loans to development corporations to assist in the
expansion and development of industrial and commercial activities by
providing financial assistance to small, emerging businesses.
(3) A nonprofit business that provides loans to development corporations
to assist in the development of commercial real estate and multi-unit
homes in the downtown Reading, Pennsylvania area.
11
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<CAPTION>
ITEM 6. OFFICERS AND DIRECTORS
PART I. AS OF DECEMBER 31, 1999
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
-------------------------------------------
GPU GPU GPU GPU GPU
GPU INT'L POWER Capital (H) GPUS GPUN AR TELCOM
----- ----- ----- ------- ---- ----- ---- ----- ------
<S> <C> <C> <C> <C> <C> <C>
F. D. Hafer (A) (N) CH-P-D D D CH-D CH-P-D CB-D CH-D D
- -----------------------------------------------------------------------------------------------------------------
T. H. Black
New Canaan, CT D
- -----------------------------------------------------------------------------------------------------------------
T. B. Hagen
Custom Engineering Company, Erie, PA D
- -----------------------------------------------------------------------------------------------------------------
H. F. Henderson, Jr. (L)
H. F. Henderson Ind., W. Caldwell, NJ D
- -----------------------------------------------------------------------------------------------------------------
J. M. Pietruski
Texas Biotechnology Corp., Houston, TX D
- -----------------------------------------------------------------------------------------------------------------
C. A. Rein
Metropolitan Property and Casualty Ins.
Co., Warwick, RI D
- -----------------------------------------------------------------------------------------------------------------
B. S. Townsend
Dorset, England D
- -----------------------------------------------------------------------------------------------------------------
C. A. H. Trost
Potomac, MD D D
- -----------------------------------------------------------------------------------------------------------------
Dr. P. K. Woolf
Princeton, NJ D
- -----------------------------------------------------------------------------------------------------------------
K. L. Wolfe
Hershey Foods Corporation, Hershey, PA D
- -----------------------------------------------------------------------------------------------------------------
S. K. Cepeda (A) AS AS
- -----------------------------------------------------------------------------------------------------------------
T. G. Howson (B) VP-T VP-T VP-T VP-T VP-T VP-T
- -----------------------------------------------------------------------------------------------------------------
I. H. Jolles (A) (J) SVP D D D EVP-D VP
- -----------------------------------------------------------------------------------------------------------------
B. L. Levy (A) (I) SVP D D P-D EVP-D VP D D
- -----------------------------------------------------------------------------------------------------------------
P. E. Maricondo (B) VP-C VP-C VP-C VP-C
- -----------------------------------------------------------------------------------------------------------------
12
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<TABLE>
<CAPTION>
ITEM 6. OFFICERS AND DIRECTORS
PART I. AS OF DECEMBER 31, 1999
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
-------------------------------------------
YORK
HAVEN NINEVEH WAVERLY GPX
POWER WATER ELEC. ACQUISITION
JCP&L (K) MET-ED PENELEC (M) CO. CO. CO. SAXTON CORP
----- ----- ----- ------- ---- ----- ---- ----- ------ ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
F. D. Hafer (A)(N) CB-D CB-D CB-D D CH-D
- --------------------------------------------------------------------------------------------------------------------------------
T. H. Black
New Canaan, CT
- ---------------------------------------------------------------------------------------------------------------------------------
T. B. Hagen
Custom Engineering Company, Erie, PA
- --------------------------------------------------------------------------------------------------------------------------------
H. F. Henderson, Jr. (L)
H. F. Henderson Ind., W. Caldwell, NJ
- --------------------------------------------------------------------------------------------------------------------------------
J. M. Pietruski
Texas Biotechnology Corp., Houston, TX
- --------------------------------------------------------------------------------------------------------------------------------
C. A. Rein
Metropolitan Property and Casualty Ins.
Co., Warwick, RI
- --------------------------------------------------------------------------------------------------------------------------------
B. S. Townsend
Dorset, England
- --------------------------------------------------------------------------------------------------------------------------------
C. A. H. Trost
Potomac, MD
- --------------------------------------------------------------------------------------------------------------------------------
Dr. P. K. Woolf
Princeton, NJ
- --------------------------------------------------------------------------------------------------------------------------------
K. L. Wolfe
Hershey Foods Corporation, Hershey, PA
- --------------------------------------------------------------------------------------------------------------------------------
S. K. Cepeda (A)
- --------------------------------------------------------------------------------------------------------------------------------
T. G. Howson (B) VP-T VP-T VP-T VP-T VP-T T T-D T T
- --------------------------------------------------------------------------------------------------------------------------------
I. H. Jolles (A) (J) VP VP VP
- --------------------------------------------------------------------------------------------------------------------------------
B. L. Levy (A) (I) VP VP VP P-D
- --------------------------------------------------------------------------------------------------------------------------------
P. E. Maricondo (B) C
- --------------------------------------------------------------------------------------------------------------------------------
13
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1999
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
-------------------------------------------
GPU GPU GPU GPU GPU
GPU INT'L POWER CAPITAL (H) GPUS GPUN AR TELCOM
----- ----- ----- ------- ---- ----- ---- ----- ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
S. L. Guibord (A) S S S S S
- -----------------------------------------------------------------------------------------------------------------
S. H. Somich (B) AT AT AT AT
- -----------------------------------------------------------------------------------------------------------------
R. L. Wise (E) (R) P-D D P-D
- -----------------------------------------------------------------------------------------------------------------
M. A. Hughes (G) (O) CH-D CH-D EVP
- -----------------------------------------------------------------------------------------------------------------
G. E. Persson
Business Dynamics Assoc., Lakewood NJ
- -----------------------------------------------------------------------------------------------------------------
S. C. Van Ness
Herbert, Van Ness, Cayci & Goodwell
Princeton, NJ
- -----------------------------------------------------------------------------------------------------------------
S. B. Wiley
Wiley, Malehorn & Sirota, Morristown, NJ
- -----------------------------------------------------------------------------------------------------------------
P. R. Chatman (B) AC AC
- -----------------------------------------------------------------------------------------------------------------
C. B. Snyder (A) EVP-D D
- -----------------------------------------------------------------------------------------------------------------
D. C. Brauer (A) VP
- -----------------------------------------------------------------------------------------------------------------
M. J. Connolly (A) VP
- -----------------------------------------------------------------------------------------------------------------
C. Brooks (E) VP VP
- -----------------------------------------------------------------------------------------------------------------
D. J. Howe (A) (P) VP VP
- -----------------------------------------------------------------------------------------------------------------
C. A. Mascari (C) VP VP
- -----------------------------------------------------------------------------------------------------------------
M. P. O'Flynn (E) VP VP
- -----------------------------------------------------------------------------------------------------------------
C. A. Stinger
GPUS, Washington, DC VP
- -----------------------------------------------------------------------------------------------------------------
14
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1999
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
-------------------------------------------
YORK
HAVEN NINEVEH WAVERLY GPX
POWER WATER ELEC. ACQUISITION
JCP&L (K) MET-ED PENELEC (M) CO. CO. CO. SAXTON CORP.
----- ----- ----- ------- ---- ----- ---- ----- ------ ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
S. L. Guibord (A) S S S S S S S S S S
- --------------------------------------------------------------------------------------------------------------------------
S. H. Somich (B) AT VP AT AT VP
- --------------------------------------------------------------------------------------------------------------------------
R. L. Wise (E) (R) P-D P-D P-D P-D P-D P P-D P-D P-D
- --------------------------------------------------------------------------------------------------------------------------
M. A. Hughes (G) (O)
- --------------------------------------------------------------------------------------------------------------------------
G. E. Persson
Business Dynamics Assoc., Lakewood NJ D
- ---------------------------------------------------------------------------------------------------------------------------
S. C. Van Ness
Herbert, Van Ness, Cayci & Goodell D
Princeton, NJ
- --------------------------------------------------------------------------------------------------------------------------
S. B. Wiley D
Wiley, Malehorn & Sirota, Morristown, NJ
- --------------------------------------------------------------------------------------------------------------------------
P. R. Chatman (B) AC AC AC
- --------------------------------------------------------------------------------------------------------------------------
C. B. Snyder (A) D D D D
- --------------------------------------------------------------------------------------------------------------------------
D. C. Brauer (A) VP-D
- --------------------------------------------------------------------------------------------------------------------------
M. J. Connolly (A)
- --------------------------------------------------------------------------------------------------------------------------
C. Brooks (E) VP VP VP
- --------------------------------------------------------------------------------------------------------------------------
D. J. Howe (A) (P) VP VP VP
- --------------------------------------------------------------------------------------------------------------------------
C. A. Mascari (C) VP VP VP C-D D
- --------------------------------------------------------------------------------------------------------------------------
M. P. O'Flynn (E) VP-C-D VP-C-D VP-C-D
- --------------------------------------------------------------------------------------------------------------------------
C. A. Stinger
GPUS, Washington, DC
- --------------------------------------------------------------------------------------------------------------------------
15
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1999
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
-------------------------------------------
GPU GPU GPU GPU GPU GPU
GPU INT'L POWER CAPITAL (H) GPUS GPUN GENCO AR TELCOM
----- ----- ----- ------- ---- ----- ---- ----- ------ ---------
<C> <S> <S> <S> <S> <S> <S> <S> <S> <S> <S>
R. S. Zechman (E) VP VP
- --------------------------------------------------------------------------------------------------------------------------
T. G. Broughton (D) P-D
- --------------------------------------------------------------------------------------------------------------------------
W. A. Wilson
ICC Technologies, Hatboro, PA D
- --------------------------------------------------------------------------------------------------------------------------
M. B. Roche (A)
SVP VP
- --------------------------------------------------------------------------------------------------------------------------
D. Furlong (D) AS-C
- --------------------------------------------------------------------------------------------------------------------------
M. E. Gramlich (A) AS
- --------------------------------------------------------------------------------------------------------------------------
A. H. Rone (D) VP-D
- --------------------------------------------------------------------------------------------------------------------------
J. F. Wilson (D) VP
- --------------------------------------------------------------------------------------------------------------------------
S. Barish-Straus (D) S S S S
- --------------------------------------------------------------------------------------------------------------------------
F. Dominguez (D)(Q) VP-C VP-C
- --------------------------------------------------------------------------------------------------------------------------
16
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1999
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
-------------------------------------------
YORK
HAVEN NINEVEH WAVERLY GPX
POWER WATER ELEC. ACQUISITION
JCP&L (K) MET-ED PENELEC (M) CO. CO. CO. SAXTON CORP.
----- ----- ----- ------- ---- ----- ---- ----- ------ ---------
<C> <S> <S> <S> <S> <S> <S> <S> <S> <S> <S>
R. S. Zechman (E) VP VP VP VP-D D
- --------------------------------------------------------------------------------------------------------------------------
T. G. Broughton (D) CH-D
- --------------------------------------------------------------------------------------------------------------------------
W. A. Wilson
ICC Technologies, Philadelphia, PA
- --------------------------------------------------------------------------------------------------------------------------
M. B. Roche (A) SVP VP VP VP-D D
- --------------------------------------------------------------------------------------------------------------------------
D. Furlong (D)
- --------------------------------------------------------------------------------------------------------------------------
M. E. Gramlich (A) AS AS AS AS
- --------------------------------------------------------------------------------------------------------------------------
A. H. Rone (D) EVP-D
- --------------------------------------------------------------------------------------------------------------------------
J. F. Wilson (D)
- --------------------------------------------------------------------------------------------------------------------------
S. Barish-Straus (D)
- --------------------------------------------------------------------------------------------------------------------------
F. Dominguez (D)(Q)
- --------------------------------------------------------------------------------------------------------------------------
17
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1999
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
-------------------------------------------
GPU GPU GPU GPU GPU
GPU INT'L POWER CAPITAL (H) GPUS GPUN AR TELCOM
----- ----- ----- ------- ---- ----- ---- ----- ------
<C> <S> <S> <S> <S> <S> <S> <S> <S> <S>
M. Freddo (D) AC AC AC AC
- --------------------------------------------------------------------------------------------------------------
R. J. Guy (D) VP VP VP
- --------------------------------------------------------------------------------------------------------------
R. P. Lantzy (D) P-D P-D P-D
- --------------------------------------------------------------------------------------------------------------
B. Matheson (D) VP VP VP
- --------------------------------------------------------------------------------------------------------------
W. C. Matthews II (E) AS AS
- --------------------------------------------------------------------------------------------------------------
J. A. McTear (D) VP VP VP VP
- --------------------------------------------------------------------------------------------------------------
S-I
W. H. Thomson (D) AS AS AS AS-D
- --------------------------------------------------------------------------------------------------------------
R. S. Plenderleith (F) P
- --------------------------------------------------------------------------------------------------------------
E. F. Beglin (E)
- --------------------------------------------------------------------------------------------------------------
G. A. Kuehn (D)
- --------------------------------------------------------------------------------------------------------------
L. A. Lenhart (C)
- --------------------------------------------------------------------------------------------------------------
D. Weaver (E)
- --------------------------------------------------------------------------------------------------------------
K. L. Bortz (F) C
- --------------------------------------------------------------------------------------------------------------
P. J. Panarella (F) AS
- --------------------------------------------------------------------------------------------------------------
J. Pagliuca (D) AT
- --------------------------------------------------------------------------------------------------------------
18
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1999
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
-------------------------------------------
YORK
HAVEN NINEVEH WAVERLY GPX
POWER WATER ELEC. ACQUISITION
JCP&L (K) MET-ED PENELEC (M) CO. CO. CO. SAXTON CORP.
----- ----- ----- ------- ---- ----- ---- ----- ------ ---------
<C> <S> <S> <S> <S> <S> <S> <S> <S> <S> <S>
M. Freddo (D)
- ---------------------------------------------------------------------------------------------------------------------------
R. J. Guy (D)
- ---------------------------------------------------------------------------------------------------------------------------
R. P. Lantzy (D) VP VP VP
- ---------------------------------------------------------------------------------------------------------------------------
B. Matheson (D)
- ---------------------------------------------------------------------------------------------------------------------------
W. C. Matthews II (E) AS AS AS AS AS
- ---------------------------------------------------------------------------------------------------------------------------
J. A. McTear (D)
- ---------------------------------------------------------------------------------------------------------------------------
W. H. Thomson (D)
- ---------------------------------------------------------------------------------------------------------------------------
R. S. Plenderleith (F)
- ---------------------------------------------------------------------------------------------------------------------------
E. F. Beglin (E) C
- ---------------------------------------------------------------------------------------------------------------------------
G. A. Kuehn (D) VP
- ---------------------------------------------------------------------------------------------------------------------------
L. A. Lenhart (C) T
- ---------------------------------------------------------------------------------------------------------------------------
D. Weaver (E) VP
- ---------------------------------------------------------------------------------------------------------------------------
K. L. Bortz (F)
- ---------------------------------------------------------------------------------------------------------------------------
P. J. Panarella (F)
- ---------------------------------------------------------------------------------------------------------------------------
J. Pagliuca (D)
- ---------------------------------------------------------------------------------------------------------------------------
19
</TABLE>
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1999
(A) Address is 300 Madison Avenue, Morristown, NJ.
(B) Address is 310 Madison Avenue, Morristown, NJ.
(C) Address is Rt. 183 & Van Reed Road, Reading, PA.
(D) Address is One Upper Pond Road, Parsippany, NJ.
(E) Address is 2800 Pottsville Pike, Muhlenberg Township, PA.
(F) Address is 2675 Morgantown Road, Reading, PA.
(G) Address is MEB Whittington, Worester WR52RB, United Kingdom
(H) Includes some or all of the following the following GPU Electric/GPU
International Group companies: Elmwood Energy Corporation, Armstrong
Energy Corporation, Geddes Cogeneration Corporation, NCP Lake Power, Inc.,
NCP Gem, Inc., Umatilla Groves, Inc., NCP Dade Power, Inc., NCP Pasco,
Inc., NCP Brooklyn Power, Inc., NCP Commerce Power, Inc., NCP Houston
Power, Inc., NCP Perry, Inc., NCP New York, Inc., EI Selkirk, Inc., EI
Canada Holding, Ltd., EI Brooklyn Power, Ltd., EI Services Canada, Ltd.,
EI Brooklyn Investments, Ltd., EI International, EI Fuels Corporation, EI
Services, Inc., GPU International Asia, Inc., GPU Power Ireland, Inc.,
Hanover Energy Corporation, Guaracachi America, Inc., EI Barranquilla,
Inc., Barranquilla Lease Holding, Inc., Los Amigos Leasing Company, Ltd.,
Austin Cogeneration Corporation, International Power Advisors, Inc., GPU
Power Philippines, Inc., Victoria Electric Holdings, Inc., Victoria
Electric, Inc., GPU Electric, Inc., GPU Australia Holdings, Inc., Austran
Holdings, Inc., EI UK Holdings, Inc., Avon Energy Partners Holdings, Avon
Energy Partners plc, Geddes II Corporation, NCP Energy, Inc., GPU
Generation Service - Pasco, Inc., GPU Solar, Inc., Magellan Utilities
Development Corporation, GPU Brasil, Inc., GPU Argentina Holdings, Inc.,
Empresa Distribuidora Electrica Regional, S.A. (Emdersa), VicGas Holdings,
Inc., and Midlands Electricity plc.
(I) B. L. Levy is also Chairman of Emdersa and a Director of Avon Energy
Partners Holdings, Avon Energy Partners plc and Midlands Electricity plc.
(J) I. H. Jolles is also Vice Chairman of Emdersa and a Director of Midlands
Electricity plc, EI UK Holdings, Inc., Avon Energy Partners Holdings, Avon
Energy Partners plc and GPU Electric, Inc.
(K) Includes the following companies: JCP&L Preferred Capital, Inc., and JCP&L
Capital, L.P.
(L) H. F. Henderson, Jr. retired April 1, 2000.
20
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1999
(M) Includes the following companies: Met-Ed Preferred Capital, Inc., Met-Ed
Capital, L.P., Penelec Preferred Capital, Inc., and Penelec Capital, L.P.
(N) F. D. Hafer is also a Director of Avon Energy Partners Holdings, Avon
Energy Partners plc, Midlands Electricity plc and GPU Electric, Inc.
(O) M. A. Hughes is also a Director of Avon Energy Partners Holdings, Avon
Energy Partners plc, Midlands Electricity plc and President, CEO and
Director of GPU Electric, Inc.
(P) D. J. Howe, effective January 31, 2000, resigned as Vice President of
JCP&L, Met-Ed and Penelec and was elected Vice President of GPUS.
(Q) F. Dominguez, effective February 1, 2000, resigned as Vice President and
Comptroller of GPUI and GPU Power.
(R) M. J. Chesser, effective April 17, 2000, was elected President -
Operations Division and Director of GPUS, President and Director of JCP&L,
Met-Ed and Penelec (replacing R. L. Wise), and a Director of GPUN.
21
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1999
KEY
CH - Chairman
CB - Chairman of the Board
D - Director
P - President
EVP - Executive Vice President
SVP - Senior Vice President
VP - Vice President
C - Comptroller
T - Treasurer
S - Secretary
S-D - Secretary (Domestic Companies)
S-I - Secretary (International Companies)
AS - Assistant Secretary
AS-D - Assistant Secretary (Domestic Companies)
AS-I - Assistant Secretary (International Companies)
AT - Assistant Treasurer
AC - Assistant Comptroller
22
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
Part II. AS OF DECEMBER 31, 1999
NAME AND LOCATION POSITION HELD APPLICABLE
NAME OF OFFICER OF IN FINANCIAL EXEMPTION
OR DIRECTOR FINANCIAL INSTITUTION INSTITUTION RULE
- -------------- ---------------------- ------------ ----------
C. A. Rein Bank of New York Director 70(b)
New York, NY
S. B. Wiley First Morris Bank Director
Morristown, NJ (Chairman) 70(c)
R. L. Wise U.S. Bancorp, Inc. Director 70(f)
Johnstown, PA
" " U.S. Bancorp Director 70(f)
Trust Company
Johnstown, PA
" " U.S. National Bank Director 70(f)
of Johnstown
Johnstown, PA
23
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
Part III.
Information concerning the compensation and other related information for
the Officers and Directors of GPU, JCP&L, Met-Ed and Penelec is filed as Exhibit
F-1 to this Form U5S.
24
<PAGE>
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS
All payments relating to (1) any political party, candidate for public office or
holder of such office, or any committee or agent therefor; or (2) any citizens
group, or public relations counsel are reported on GPU Service, Inc.'s Form
U-13-60 and are therefore excluded from this filing.
25
<PAGE>
<TABLE>
<CAPTION>
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS
Part I.
Serving Receiving
Transaction Company Company Compensation
- ----------------- ------- --------- --------------
(In Thousands)
<S> <C> <C> <C>
Allenhurst Remittance Center JCP&L Met-Ed $ 624
Building Costs " Penelec 726
Phillipsburg building costs JCP&L Met-Ed 328
allocated to Corporate Plant " Penelec 382
Accounting Department
Morristown Headquarters JCP&L GPUS 2,384
Building Costs
Building Costs Associated with the JCP&L Met-Ed 28
Boonton Line Department Facility " Penelec 32
Revenues Associated with the JCP&L GPU Telcom 1,012
use of company assets
Total JCP&L $ 5,516
Occupancy charges related to Met-Ed JCP&L $ 6,763
the Pottsville Pike facility " Penelec 4,343
Occupancy charges related to Met-Ed JCP&L 97
the Bethel Meter Shop facility " Penelec 60
Occupancy charges related to Met-Ed Penelec 108
the Sylvan Region building
Occupancy charges related to Met-Ed GPUS 423
the Gateway building
Revenues associated with Met-Ed GPU Telcom 983
the use of company assets
Total Met-Ed $12,777
Occupancy charges associated Penelec JCP&L $ 574
with the Broad Street facility " Met-Ed 308
" GPUS 364
" GENCO 2,058
Occupancy charges associated with Penelec GENCO 132
the Brookville facility
Revenues associated with the Penelec GPU Telcom 316
use of company assets
Other Penelec Met-Ed 26
Total Penelec $ 3,778
26
</TABLE>
<PAGE>
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS: (Continued)
Part I.
A Mutual Assistance Agreement, approved by the Pennsylvania Public Utility
Commission by order dated December 15, 1993, between and among Met-Ed, Penelec,
JCP&L, GPUN and GPUS covering various affiliate transactions in goods and
services remains in effect at year-end.
Service Agreement, between GPUS and GPU AR dated as of June 30, 1997 covering
various affiliate transactions in goods and services remains in effect at
year-end.
Agreement between and among JCP&L, Met-Ed, Penelec, GPUS, GPU AR and GPU Telcom
dated as of April 25, 1997 covering various affiliate transactions in services
remains in effect at year-end.
Part II.
None.
Part III.
None.
27
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
Geddes II Corporation, Geddes Cogeneration Corporation and Onondaga Cogeneration
Limited Partnership
Part I.
(a) At December 31, 1999, GPU International, Inc. (GPUI), through its
wholly-owned subsidiaries Geddes II Corporation (50% limited partner) and
Geddes Cogeneration Corporation (1% general partner and 49% limited
partner) owned 100% of Onondaga Cogeneration Limited Partnership
(Onondaga).
Onondaga is a limited partnership organized to construct, own and operate
an 80 MW cogeneration project located in Geddes, New York which was placed
into commercial operation in 1993. Onondaga sells substantially all of its
steam output to Crucible Specialty Metals for use in an adjacent
industrial facility and its electrical output to Niagara Mohawk Power
Corporation.
(b) At December 31, 1999, GPUI, through its wholly-owned subsidiaries Geddes
II Corporation and Geddes Cogeneration Corporation had an investment of
$(8,876,038) in Onondaga.
(c) Ratio of debt to common equity of Onondaga - Not applicable.
Accumulated earnings of Onondaga - $20,126,698
(d) None.
Part II.
An organizational chart showing the relationship of GPU International, Inc. to
Onondaga is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
Onondaga as of and for the year ended December 31, 1999 are provided in Exhibit
I-1 as part of GPU International, Inc.'s consolidating financial statements.
28
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
EI Selkirk, Inc. and Selkirk Cogeneration Partners Limited Partnership
Part I.
(a) At December 31, 1999, GPU International, Inc. (GPUI), through its
wholly-owned subsidiary EI Selkirk, Inc., owned a 13.55% preferred
interest and a 19% common interest in Selkirk Cogeneration Partners
Limited Partnership (Selkirk).
Selkirk is a Delaware limited partnership and was formed for the purpose
of constructing, owning and operating two natural gas-fired combined-cycle
cogeneration facilities located in Bethlehem, New York. The facilities are
79.9 and 270 megawatts (MW) each with a combined average net capacity of
349.9 MW producing steam and electricity.
(b) At December 31, 1999, GPUI through its wholly-owned subsidiary EI Selkirk,
Inc. had an investment of $7,758,210 in Selkirk.
(c) Ratio of debt to common equity of Selkirk - (7.5):1
Accumulated earnings of Selkirk - $26,652,720
(d) None.
Part II.
An organizational chart showing the relationship of GPU International, Inc. to
Selkirk is provided in Exhibit H-1.
Financial statements of Selkirk Cogeneration Partners Limited Partnership as of
and for the year ended December 31, 1999 are incorporated by reference to
Selkirk's 1999 Form 10-K filed with the SEC.
29
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
EI Canada Holding Limited, EI Brooklyn Power Limited, EI Brooklyn Investments
Limited and EI Services Canada Limited
Part I.
(a) At December 31, 1999, GPU International, Inc. (GPUI), through its
wholly-owned subsidiary EI Canada Holding Limited, owned 100% of EI
Services Canada Limited and EI Brooklyn Power Ltd. EI Brooklyn Power Ltd.
owns 100% of EI Brooklyn Investments Ltd.
(b) At December 31, 1999, GPUI had an investment of $(91,072) in EI Canada
Holding Limited and subsidiaries.
(c) Ratio of debt to common equity of EI Canada Holding Limited and
subsidiaries - Not applicable
Accumulated losses of EI Canada Holding Limited and subsidiaries -
$10,520,591
(d) None.
Part II.
An organizational chart showing the relationship of GPU International, Inc. to
EI Canada Holding Limited and subsidiaries is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of EI
Canada Holding Limited and subsidiaries as of and for the year ended December
31, 1999 are provided in Exhibit I-1 as part of GPU International, Inc.'s
consolidating financial statements. Filed pursuant to request for confidential
treatment, financial statements of EI Services Canada Limited are provided in
exhibit I-1.
30
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
NCP Houston Power, Inc., NCP Perry, Inc. and Mid Georgia Cogeneration L.P.
Part I.
(a) At December 31, 1999, GPU International, Inc. (GPUI), through its
wholly-owned subsidiaries NCP Perry, Inc. (30% limited partner) and NCP
Houston Power, Inc. (1% general partner and 19% limited partner) owned
50% of Mid-Georgia Cogen L.P. (Mid-Georgia).
Mid-Georgia is a limited partnership organized to construct, finance, own
and/or lease, operate and manage a 300 megawatt natural gas and oil fired
cogeneration facility (the Project) located in Kathleen, Georgia. The
Project was placed into commercial operation in 1998 and sells all of its
steam output to Frito-Lay, Inc. for use in an adjacent industrial
facility and substantially all of its electrical output to Georgia Power
Company, although the Project has the option to sell power to other
wholesale parties subject to the receipt of necessary third party
consent.
(b) At December 31, 1999, GPUI, through its wholly-owned subsidiaries NCP
Perry, Inc. and NCP Houston Power, Inc. had an investment of $19,055,789
in Mid-Georgia.
As of December 31, 1999, GPUI had guaranteed a letter of credit in the
amount of $641,500 on behalf of Mid-Georgia in connection with certain
terms and conditions contained in the Power Purchase Agreement between
Mid-Georgia and Georgia Power Company.
GPUI has guaranteed payments under a Natural Gas Facilities Agreement
between EI Fuels Corporation (EI Fuels), a wholly-owned subsidiary of GPUI
and the City of Warner Robins. At December 31, 1999, this guarantee
amounted to $4,464,000.
(c) Ratio of debt to common equity of Mid-Georgia - 3.07:1
Accumulated earnings of Mid-Georgia - $4,902,223
(d) Mid-Georgia has entered into a Fuel Supply and Management Agreement with
EI Fuels, a wholly-owned subsidiary of GPUI. The agreement provides for a
natural gas supply, transportation and balancing as well as the
acquisition and delivery of fuel oil. The term of the agreement extends
through February 2026.
EI Services, Inc., a wholly owned subsidiary of GPUI, is entitled to an
annual operations and maintenance fee of $500,000 for operating the
Project and an operator incentive fee for exceeding specified operational
levels.
Part II.
An organization chart showing the relationship of GPU International, Inc.
to Mid-Georgia is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
Mid-Georgia as of and for the year ended December 31, 1999 are provided in
Exhibit I-1 as part of GPU International, Inc.'s consolidating financial
statements.
31
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
GPU Power, Inc.
Part I.
(a) At December 31, 1999, GPU, Inc. (GPU) owned 100% of GPU Power, Inc., a
Delaware corporation established to make investments in EWGs, own and/or
operate eligible facilities and to engage in project development
activities for eligible facilities.
(b) At December 31, 1999, GPU had an investment of $106,768,366 in GPU Power,
Inc.
(c) Ratio of debt to common equity - Not applicable.
Accumulated earnings of GPU Power, Inc. - $8,879,409
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to other
EWGs in which it has an interest is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, consolidating financial
statements of GPU Power, Inc. as of and for the year ended December 31, 1999 are
provided in Exhibit I-1.
32
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
Guaracachi America, Inc. and Empresa Guaracachi S.A.
Part I.
(a) At December 31, 1999, GPU Power, Inc., through its wholly-owned
subsidiary Guaracachi America, Inc., owned 50% of Empresa Guaracachi S.A.
Empresa Guaracachi S.A. is a Bolivian corporation having three facilities
located in Bolivia in and around the cities of Santa Cruz, Sucre and
Potosi. It is an electric generating company having an aggregate capacity
of 339 megawatts.
(b) At December 31, 1999, GPU through its wholly-owned subsidiary GPU Power,
Inc., had an investment of $49,919,927 in Empresa Guaracachi S.A.
(c) Ratio of debt to common equity of Empresa Guaracachi S.A. - .53:1
Accumulated earnings of Empresa Guaracachi S.A. - $5,628,735
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to Empresa
Guaracachi S.A. is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
Empresa Guaracachi S.A. as of and for the year ended December 31, 1999 are
provided in Exhibit I-1 as part of GPU Power, Inc.'s consolidating financial
statements.
33
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
EI Barranquilla, Inc. and Termobarranquilla S.A.
Part I.
(a) At December 31, 1999, GPU Power, Inc., through its wholly-owned
subsidiary EI Barranquilla, Inc., owned a 28.6% interest in
Termobarranquilla S.A. Empresa de Servicios Publicos (TEBSA).
TEBSA consists of two gas-fired generating plants with an aggregate
capacity of 890 megawatts located near Barranquilla, Colombia. Electricity
generated by these plants will be sold to Corporacion Electrica de la
Costa Atlantica (Corelca) under a 20-year contract.
(b) As of December 31, 1999, GPU Power Inc. had an investment of $33,659,397
in TEBSA.
As of December 31, 1999, a guarantee of amounts up to $21,250,000 was made
by GPU for the benefit of the Bankers Trust Company as collateral agent on
behalf of the Secured Parties in connection with the obligations under
certain loan agreements.
(c) Ratio of debt to common equity of TEBSA - .67:1
Accumulated earnings of TEBSA - $147,503,550
(d) See GPUI Colombia, Ltda. Item I, Part (d).
Part II.
An organization chart showing the relationship of GPU Power, Inc. to TEBSA is
provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
TEBSA as of and for the year ended December 31, 1999 are provided in Exhibit
I-1.
34
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
Barranquilla Lease Holding, Inc. and Los Amigos Leasing Company, Ltd.
Part I.
(a) At December 31, 1999, GPU Power, Inc., through its wholly-owned subsidiary
Barranquilla Lease Holding, Inc., owned a 100% interest in Los Amigos
Leasing Company, Ltd. (Leaseco).
Leaseco, which is a Bermuda corporation, had procured equipment to be used
by and leased to TEBSA. Pursuant to a lease agreement, Leaseco will
deliver certain non-Colombian equipment related to TEBSA, and TEBSA will
make lease payments equal to the interest and principal payments of
Leaseco.
(b) GPU, indirectly through its wholly-owned subsidiary GPU Power, Inc., has
invested $12,000 in Leaseco to capitalize the company.
(c) Ratio of debt to common equity of Leaseco - (427):1
Accumulated losses of Leaseco - $906,894
(d) Pursuant to the lease agreement, Leaseco will deliver certain
non-Colombian equipment related to the project to TEBSA during the
construction period. TEBSA will lease the imported equipment from Leaseco
during an interim lease term during the construction period and
subsequently during a 15 year basic lease term. During the interim lease
term, TEBSA will pay rent to Leaseco to reimburse it for certain expenses,
including interest incurred during construction. During the basic lease
term, TEBSA will make lease payments equal to the interest and principal
payments of Leaseco.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to Leaseco
is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
Leaseco as of and for the year ended December 31, 1999 are provided in Exhibit
I-1.
35
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
EI International and GPUI Colombia, Ltda.
Part I.
(a) At December 31, 1999, GPU Power, Inc., through its wholly-owned subsidiary
EI International, owned a 100% interest in GPUI Colombia, Ltda.
GPUI Colombia, Ltda. has entered into an operation and maintenance (O&M)
agreement with TEBSA to provide management services to TEBSA over its
20-year contract with Corelca. Fees for these management services are in
accordance with the terms and conditions of the O&M agreement.
(b) At December 31, 1999, GPU indirectly through its wholly-owned subsidiary
GPU Power, Inc., had an investment of $767,940 in GPUI Colombia, Ltda.
GPUI has guaranteed the obligations of GPU Power, Inc.'s subsidiaries,
GPUI Colombia, Ltda. and International Power Advisors, Inc. (the
Operators), under the O&M agreement in the TEBSA project. Pursuant to the
guarantee, GPUI has guaranteed the performance of the Operators, of which
the limit of liability is $5,000,000.
(c) Ratio of debt to common equity of GPUI Colombia, Ltda. - Not applicable.
Accumulated earnings of GPUI Colombia, Ltda. - $757,939.
(d) See (a) above.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to GPUI
Colombia, Ltda. is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
GPUI Colombia, Ltda. as of and for the year ended December 31, 1999 are provided
in Exhibit I-1 as part of GPU Power, Inc.'s consolidating financial statements.
36
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
Hanover Energy Corporation
Part I.
(a) At December 31, 1999, GPU Power, Inc. owned 100% of Hanover Energy
Corporation, a New Jersey corporation established to make future
investments in EWGs.
(b) None.
(c) Ratio of debt to common equity - GPU Power, Inc. has not made equity
contributions to Hanover Energy Corporation as of December 31, 1999.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to Hanover
Energy Corporation is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
37
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
EI Power (China) II, Inc.
Part I.
(a) At December 31, 1999, GPU Power, Inc. owned 100% of EI Power (China) II,
Inc., a Delaware corporation established to make future investments in
EWGs in China.
(b) None.
(c) Ratio of debt to common equity - GPU Power, Inc. has not made equity
contributions to EI Power (China) II, Inc. as of December 31, 1999.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to EI Power
(China) II, Inc. is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
38
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
EI Power (China) III, Inc.
Part I.
(a) At December 31, 1999, GPU Power, Inc. owned 100% of EI Power (China) III,
Inc., a Delaware corporation established to make future investments in
EWGs in China.
(b) None.
(c) Ratio of debt to common equity - GPU Power, Inc. has not made equity
contributions to EI Power (China) III, Inc. as of December 31, 1999.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to EI Power
(China) III, Inc. is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
39
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
Austin Cogeneration Corporation and Austin Cogeneration Partners, L.P.
Part I.
(a) At December 31, 1999, GPU Power, Inc., through its wholly-owned subsidiary
Austin Cogeneration Corporation, owned a 99% limited partnership interest
and a 1% general partnership interest in Austin Cogeneration Partners,
L.P.
Austin Cogeneration Partners, L.P. is a Delaware limited partnership
established to invest in EWGs and qualifying facilities.
(b) None.
(c) Ratio of debt to common equity - GPU Power, Inc. has not made equity
contributions to Austin Cogeneration Corporation or Austin Cogeneration
Partners, L.P. as of December 31, 1999.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to Austin
Cogeneration Partners, L.P. is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
40
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
International Power Advisors, Inc.
Part I.
(a) At December 31, 1999, GPU Power, Inc. owned 100% of International Power
Advisors, Inc. (IPA), a Delaware corporation established to provide
technical services to EWGs.
IPA has entered into an operation and maintenance (O&M) agreement with
TEBSA to provide technical services and technical assistance in the O&M of
the generating facilities of TEBSA. Fees for these services are in
accordance with the terms and conditions of the O&M agreement.
(b) At December 31, 1999, GPU, indirectly through its wholly-owned subsidiary
GPU Power, Inc, had an investment of $1,155,883 in IPA.
(c) Ratio of debt to common equity - Not applicable.
Accumulated earnings of IPA - $1,155,783
(d) See (a) above.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to IPA is
provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
IPA as of and for the year ended December 31, 1999 are provided in Exhibit I-1
as part of GPU Power, Inc.'s consolidating financial statements.
41
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
GPU Power Philippines, Inc. and Magellan Utilities Development Corporation
Part I.
(a) At December 31, 1999, GPU Power, Inc. through its wholly-owned subsidiary,
GPU Power Philippines, Inc. owned a 13.2% interest in Magellan Utilities
Development Corporation (MUDC).
MUDC, a Philippine corporation, has postponed the construction of a 300 MW
coal generating plant on the south shore of Bantangas Bay, Philippines, as
a result of the devaluation of the Asian currency, a delay in securing
construction permits and lower than expected growth in electricity demand.
The terms of a 25 year power purchase agreement with Manila Electric
Company have been renegotiated with an April 2004 in-service date.
(b) None.
(c) Ratio of debt to common equity - GPU Power, Inc. has not made equity
contributions to GPU Power Philippines, Inc. as of December 31, 1999.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to MUDC is
provided in
Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
GPU Power Philippines, Inc. as of and for the year ended December 31, 1999 are
provided in Exhibit I-1 as part of GPU Power, Inc.'s consolidating financial
statements.
42
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
GPU International Asia, Inc.
Part I.
(a) At December 31, 1999, GPU Power, Inc. owned 100% of GPU International
Asia, Inc., a Delaware corporation established to make future investments
in EWGs in Asia.
(b) At December 31, 1999, GPU, through its wholly-owned subsidiary GPU Power,
Inc., had an investment in GPU International Asia, Inc. of $(487,956).
(c) Ratio of debt to common equity - Not applicable.
Accumulated losses of GPU International Asia, Inc. - $487,956.
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to GPU
International Asia, Inc. is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
GPU International Asia, Inc. as of and for the year ended December 31, 1999 are
provided in Exhibit I-1 as part of GPU Power, Inc.'s consolidating financial
statements.
43
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
EXEMPT WHOLESALE GENERATORS (EWG) (Continued):
GPU Power Ireland, Inc.
Part I.
(a) At December 31, 1999, GPU Power, Inc. owned 100% of GPU Power Ireland,
Inc., a Delaware corporation established to make future investments in
EWGs in Ireland.
(b) None.
(c) Ratio of debt to common equity - GPU Power, Inc. has not made equity
contributions to GPU Power Ireland, Inc. as of December 31, 1999.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to GPU Power
Ireland, Inc. is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
44
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
FOREIGN UTILITY COMPANIES (FUCO):
GPU Capital, Inc.
Part I.
(a) At December 31, 1999, GPU owned 100% of GPU Capital, Inc., a Delaware
corporation established to make investments in FUCOs, own and/or operate
eligible facilities and to engage in project development activities for
eligible facilities.
(b) GPU, Inc. is a guarantor for the $1.0 billion GPU Capital, Inc. commercial
paper program. As of December 31, 1999, the outstanding balance is
$767,995,000.
(c) Ratio of debt to common equity - Not applicable.
Accumulated earnings of GPU Capital, Inc. - $53,097,471.
(d) None.
Part II:
An organizational chart showing the relationship of GPU Capital, Inc. to other
FUCO's in which it has an interest is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, consolidating financial
statements of GPU Capital, Inc. as of and for the year ended December 31, 1999
are provided in Exhibit I-1.
45
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
FOREIGN UTILITY COMPANIES (FUCO):
GPU Electric, Inc.
Part I.
(a) At December 31, 1999, GPU Capital, Inc. owned 100% of GPU Electric, Inc.,
a Delaware corporation established to make investments in FUCOs, own
and/or operate eligible facilities and to engage in project development
activities for eligible facilities.
(b) As of December 31, 1999, GPU Inc. has invested a total of $748,000,000 in
GPU Electric, Inc. of which an additional $650,000,000 was invested in
1999.
(c) Ratio of debt to common equity - Not applicable.
Accumulated earnings - $73,112,955.
(d) None
Part II:
An organizational chart showing the relationship of GPU Electric, Inc. to other
FUCO's in which it has an interest is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, consolidating financial
statements of GPU Electric, Inc. as of and for the year ended December 31, 1999
are provided in Exhibit I-1.
46
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
FOREIGN UTILITY COMPANIES (FUCO) (Continued):
Victoria Electric Holdings, Inc., and Victoria Electric, Inc.
Part I.
(a) At December 31, 1999, GPU Electric, Inc. through its wholly-owned
subsidiary Victoria Electric Holdings, Inc., owned 100% of Victoria
Electric, Inc.
(b) GPU, indirectly through its wholly-owned subsidiary GPU Electric, Inc.,
has an investment of $27,026,452 in Victoria Holdings, Inc.
(c) Ratio of debt to common equity of Victoria Electric, Inc. - Not
applicable. Accumulated losses of Victoria Electric, Inc. - $35,481,238.
(d) None
Part II:
Exhibit H-1 and I-1 - not applicable.
47
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
FOREIGN UTILITY COMPANIES (FUCO) (Continued):
EI UK Holdings, Inc., Avon Energy Partners Holdings, Avon Energy Partners plc
and Midlands Electricity plc
Part I.
(a) At December 31, 1999, GPU Electric, Inc. through its wholly-owned
subsidiary EI UK Holdings, Inc. (EIUK), owned 100% of Avon Energy Partners
Holdings which owned 100% of Avon Energy Partners plc, which in turn,
owned 100% of Midlands Electricity plc (Midlands).
Midlands is an English regional electric company which distributes
electricity to 5.0 million customers in England. Midlands is also engaged
in non-regulated activities, including electricity generation, electricity
contracting, metering services and related businesses.
(b) GPU, Inc. indirectly through its wholly-owned subsidiary GPU Electric,
Inc., has invested approximately $1,156 million in Midlands.
As of December 31, 1999, EIUK has an outstanding balance of approximately
$396 million (245 million British pounds) on its senior two-year bank loan
facility which was entered into to purchase the ownership interest in
Midlands from Cinergy.
GPU guarantees approximately $97 million (60 million British pounds) of
the $396 million outstanding.
(c) Ratio of debt to common equity of Midlands Electricity - .384:1
Accumulated earnings of Midlands Electricity - $2,382,446,123.
(d) None.
Part II:
An organizational chart showing the relationship of GPU Electric, Inc. to
Midlands is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
Midlands as of and for the year ended December 31, 1999 are provided in Exhibit
I-1 as part of EI UK Holdings, Inc.'s consolidating financial statements.
48
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
FOREIGN UTILITY COMPANIES (FUCO) (Continued):
GPU Australia Holdings, Inc., Austran Holdings, Inc., GPU PowerNet Pty Ltd., GPU
PowerNet Investments, Pty Ltd., VicGas Holdings, Inc., GPU GasNet Pty Ltd., and
Transmission Pipelines Australia (Assets) Pty Ltd.
Part I:
(a) At December 31, 1999, GPU Electric, Inc. through its wholly-owned
subsidiary GPU Australia Holdings, Inc. (Australia Holdings) owned a 100%
in Austran Holdings, Inc., which in turn owned 100% of GPU PowerNet Pty
Ltd. (GPU PowerNet), and owned 100% of VicGas Holdings, Inc., which in
turn owns 100% of GPU GasNet Pty Ltd. and 100% of Transmission Pipelines
Australia (Assets) Pty Ltd.
GPU PowerNet owns and maintains the high voltage electricity transmission
system in Victoria covering an area of approximately 227,600 km and a
population of approximately 4.5 million. Its assets are comprised of
overhead transmission lines (ranging from 66KV to 500KV), underground
cable, galvanized steel towers and switchyards, terminal and transformers
stations.
The primary function of GPU PowerNet is to transport electricity from
power stations to the major load centers in greater Melbourne as well as
to the neighboring state of New South Wales, and to large industrial
users.
GPU GasNet owns and maintains the high pressure gas transmission pipeline
network that serves a total consumption base of approximately 1.3 million
residential customers and approximately 40,000 industrial and commercial
users throughout Victoria. The primary purpose of GPU GasNet is to
transport gas from the Longford gas treatment plant in South East Victoria
and from gas fields in the Southwest to the major load centers in
Victoria.
(b) GPU, Inc. indirectly through its wholly-owned subsidiary GPU Electric,
Inc., has invested approximately $503 million in GPU Australia Holdings,
Inc.
In 1999, Australia Holdings prepaid the outstanding $350 million principal
balance and interest under its five year bank term loan facility. In order
to fund this prepayment, Australia Holdings issued commercial paper under
its $350 million commercial paper program guaranteed by GPU, Inc. As of
December 31, 1999, Australia Holdings has $182 million of outstanding
borrowings under the commercial paper program.
As of December 31 1999, Austran Holdings, Inc., has outstanding
approximately $691 million, of its initial $1.4 billion, through a
non-recourse senior debt facility, which was used to fund the remaining
investment in GPU PowerNet. Austran Holdings, Inc. entered into a medium
term note program during 1999 and refinanced a portion of its non-recourse
senior debt facility utilizing proceeds from the medium term note
issuance.
49
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
FOREIGN UTILITY COMPANIES (FUCO) (Continued):
GPU Australia Holdings, Inc., Austran Holdings, Inc., GPU PowerNet Pty Ltd., GPU
PowerNet Investments, Pty Ltd., VicGas Holdings, Inc., GPU GasNet Pty Ltd., and
Transmission Pipelines Australia (Assets) Pty Ltd.
(c) Ratio of debt to common equity of GPU PowerNet - 4.672 : 1
GPU GasNet - 2.71 : 1
Accumulated earnings of GPU PowerNet - $25,416,895
GPU GasNet - $ 5,692,577
(d) None.
Part II:
An organizational chart showing the relationship of GPU Electric, Inc. to GPU
PowerNet, GPU GasNet is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
GPU Australia Holdings, Inc., Austran Holdings, Inc., GPU PowerNet Pty Ltd., GPU
PowerNet Investment, Pty Ltd., Austran Investment Pty Ltd., VicGas Holdings,
Inc. GPU GasNet Pty Ltd. and Transmission Pipelines Australia (Assets) Pty Ltd.
as of and for the year ended December 31, 1999 are provided in Exhibit I-1 as
part of GPU Electric, Inc.'s consolidating financial statements.
50
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
FOREIGN UTILITY COMPANIES (FUCO);
GPU Argentina Holdings, Inc., GPU Argentina Services, Emdersa
Part I:
(a) At December 31, 1999, GPU Electric, Inc. owned a 100% interest in GPU
Argentina Holdings, Inc., which in turn owns 100% of GPU Argentina
Services, which in turn owns 100% of Emdersa. Emdersa is an Argentina
regional electric distribution company in the San Luis, La Rioja, and
Salta regions of Argentina. Emdersa conducts non-regulated activities,
including electricity generation, electricity contracting, metering
services and related businesses.
(b) GPU, Inc. indirectly through its wholly-owned subsidiary GPU Electric,
Inc., has invested approximately $378 million in GPU Argentina Holdings,
Inc.
(c) Ratio of debt to common equity of Emdersa - .339 : 1 Accumulated earnings
of Emdersa - $18,988,597.
(d) None.
Part II:
An organizational chart showing the relationship of GPU Electric, Inc. to
Emdersa is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
GPU Argentina Holdings, Inc., GPU Argentina Services, and Emdersa as of and for
the year ended December 31, 1999 are provided in Exhibit I-1 as part of GPU
Electric, Inc.'s consolidating financial statements.
51
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES (Continued)
Part III.
GPU's aggregate investment in EWG's and FUCO's at December 31, 1999, was as
follows*:
EWG's: $ 135,541,000
FUCO's: $ 2,036,586,000
GPU's aggregate capital investment in domestic public utility subsidiary
companies at December 31, 1999 was approximately $2,347,966,000.
Ratio of GPU's aggregate investment of EWG's and FUCO's to GPU's aggregate
investment in domestic public utility subsidiary companies at December 31, 1999,
was as follows:
EWG's: .06:1
FUCO's: .87:1
*Pursuant to Rule 53(a)(1)(i) under the Public Utility Holding Company Act of
1935, aggregate investment as stated herein Part III includes all amounts
invested, or committed to be invested, in foreign utility companies (FUCO) and
exempt wholesale generators (EWG), for which there is recourse, directly or
indirectly, to the registered holding company.
52
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS
Page
Consolidating Financial Statements, Schedules and Notes
- - Report of Independent Accountants. 54
- - Consolidating Financial Statements of GPU, Inc. 55-67
for 1999.
- Combined Notes 1 through 13 to Consolidated Financial Statements
incorporated herein by reference, in Exhibit A (page 32), in the GPU, Inc.
Annual Report on Form 10-K for 1999 (Item 8 of 10-K).
- Combined Notes 1 through 13 to Consolidated Financial Statements
incorporated herein by reference, in Exhibit A (page 32)in the Jersey
Central Power & Light Company Annual Report on Form 10-K for 1999 (Item 8
of 10-K).
- Combined Notes 1 through 13 to Consolidated Financial Statements
incorporated herein by reference, in Exhibit A (page 32)in the Metropolitan
Edison Company Annual Report on Form 10-K for 1999 (Item 8 of 10-K).
- Combined Notes 1 through 13 to Consolidated Financial Statements
incorporated herein by reference, in Exhibit A (page 32)in the Pennsylvania
Electric Company Annual Report on Form 10-K for 1999 (Item 8 of 10-K).
- Exhibits 68-105
53
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors of GPU, Inc.
In our opinion, the consolidated financial statements listed in Item 10 of this
Form U5S present fairly, in all material respects, the financial position of
GPU, Inc. and Subsidiary Companies at December 31, 1999 and the results of their
operations and their cash flows for the year then ended, in conformity with
accounting principles generally accepted in the United States. These financial
statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audit. We conducted our audit of these statements in accordance with
auditing standards generally accepted in the United States which require that we
plan and perform the audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements, assessing the accounting principles used and
significant estimates made by management, and evaluating the overall financial
statement presentation. We believe that our audit provides reasonable basis for
the opinion expressed above.
Our audit was conducted for the purpose of forming an opinion on the
consolidated financial statements taken as a whole. The supplementary
consolidating information and the financial statement exhibits of the individual
companies listed in Item 10 of this Form U5S are presented for purposes of
additional analysis rather than to present the financial position, results of
operations, and cash flows of the individual companies, and are not a required
part of the consolidated financial statements. The supplementary consolidating
information and the financial statement exhibits have been subjected to the
auditing procedures applied in the audit of the consolidated financial
statements and, in our opinion, are fairly stated, in all material respects, in
relation to the consolidated financial statements taken as a whole.
PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
February 10, 2000
54
<PAGE>
<TABLE>
GPU, Inc. and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1999
----------------------------------
(In Thousands)
GPU, Inc. and
Subsidiary Eliminations Jersey Central Metropolitan Pennsylvania
Companies and Power &Light Edison Electric GPU
ASSETS Consolidated Adjustments GPU, Inc. Company Company Company Telcom
------------ ----------- -------- -------------- ------------ ----------- --------
Utility Plant:
Transmission, distribution and
<S> <C> <C> <C> <C> <C> <C>
general plant $11,240,218 $3,097,150 $ 1,500,417 $ 1,732,386
Generation plant 526,228 504,545 21,683
------------ ----------- -------- -------------- ------------ ----------- --------
Utility plant in service 11,766,446 3,601,695 1,522,100 1,732,386
Accumulated depreciation (3,929,963) (1,872,422) (462,709) (552,449)
------------ ----------- -------- -------------- ------------ ----------- --------
Net utility plant in service 7,836,483 1,729,273 1,059,391 1,179,937
Construction work in progress 170,317 80,671 25,329 30,329
Other, net 18,128 14,781 643 2,704
------------ ----------- -------- -------------- ------------ ----------- --------
Net utility plant 8,024,928 1,824,725 1,085,363 1,212,970
------------ ----------- -------- -------------- ------------ ----------- --------
Other Property and Investments:
Common stock of subsidiaries $3,665,242 $ 3,665,242
Equity investments 85,756
Goodwill, net 2,615,301
Nuclear decommissioning
trusts, at market 636,284 394,941 144,261 97,082
Nuclear fuel disposal trust, at market 119,293 119,293
Other, net 837,415 7,198 1,252 3,010 267,933 $ 3,792
------------ ----------- ----------- ---------- ------------ ----------- --------
Total other property and
investments 4,294,049 3,665,242 3,672,440 515,486 147,271 365,015 $ 3,792
------------ ----------- ----------- ---------- ------------ ----------- --------
Current Assets:
Cash and temporary cash investments 471,548 129 68,684 10,899 32,250 2,856
Special deposits 42,687 1,035 160 233
Accounts receivable:
Customers, net 445,745 164,099 60,188 69,752 3,038
Other 238,840 398,770 13 83,086 149,760 53,406
Unbilled revenues 152,263 78,251 28,956 30,836
Materials and supplies, at average cost
or less:
Construction and maintenance 100,807 232
Fuel 208
Investment held for sale 26,946
Deferred income taxes 72,249 1,652 2,945 7,589
Prepayments 161,602 4,413 233 23,000 16,715 15,484 59
Other, net 2,920
------------ ----------- ----------- ---------- ------------ ----------- --------
Total current assets 1,712,895 406,103 375 419,807 269,623 209,550 6,185
------------ ----------- ----------- ---------- ------------ ----------- --------
Deferred Debits and Other Assets:
Regulatory assets, net 4,712,654 2,809,801 1,231,140 671,713
Deferred income taxes 2,528,393 221,668 738,189 1,225,150 2,226
Other 445,163 16,504 18 19,510 16,607 11,393 40
------------ ----------- ----------- ---------- ------------ ----------- --------
Total deferred debits
and other assets 7,686,210 16,504 18 3,050,979 1,985,936 1,908,256 2,266
------------ ----------- ----------- ---------- ------------ ----------- --------
Total Assets $21,718,082 $4,087,849 $ 3,672,833 $ 5,810,997 $ 3,488,193 $ 3,695,791 $12,243
=========== ========== =========== =========== =========== =========== =======
<FN>
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and
Penelec, which are incorporated by reference from the respective annual reports
on Form 10-K for the year ended December 31, 1999, are an integral part of the
consolidating financial statements.
</FN>
55
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GPU, Inc. and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1999
-----------------------------------
(In Thousands)
GPU GPU GPU GPU GPU GPU GPU
Advanced Generation Service Nuclear International Power Capital
ASSETS Resources, Inc. Inc. Inc. Inc. Inc. Inc.
Inc.
------------ ----------- ----------- ---------- ------------ ----------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Utility Plant:
Transmission, distribution and
General plant $ 80,165 $4,830,100
------------ ---------- --------- -------- ------------ ---------- ---------
Generation plant
Utility plant in service 80,165 4,830,100
Accumulated depreciation (34,232) (1,008,151)
------------ ---------- --------- -------- ------------ --------- ---------
Net utility plant in service 45,933 3,821,949
------------ ---------- --------- -------- ------------ ---------- ---------
Construction work in progress 33,988
Other, net
Net utility plant 45,933 3,855,937
------ ---------
Other Property and Investments:
Common stock of subsidiaries
Equity investments $55,297 $ 30,459
Goodwill, net 13,023 6,559 2,595,719
Nuclear decommissioning trusts, at market
Nuclear fuel disposal trust, at market
Other, net $ 99 $ 42,821 $ 1,435 92,915 105,689 311,271
------------ ---------- --------- -------- ------------ ---------- ---------
Total other property and investments 99 42,821 1,435 161,235 142,707 2,906,990
------------ ---------- --------- -------- ------------ ---------- ---------
Current Assets:
Cash and temporary cash investments 7,870 705 43 12,958 24,925 310,229
Special deposits 323 169 12,937 27,830
Accounts receivable:
Customers, net 16,591 132,077
Other 6 219,187 63,635 11,930 20,858 35,729
Unbilled revenues 14,220
Materials and supplies, at average
cost or less:
Construction and maintenance 58,081 698 4,675 37,121
Fuel 208
Investment held for sale 26,946
Deferred income taxes 55,658 1,105 3,300
Prepayments 30 28,919 6,878 800 73,897
Other, net 2,920
------------ ---------- --------- -------- ------------ ---------- ---------
Total current assets 24,497 307,215 63,847 104,187 52,363 661,349
------------ ---------- --------- -------- ------------ ---------- ---------
Deferred Debits and Other Assets:
Regulatory assets, net
Deferred income taxes 112,391 31,655 17,551 179,563
Other 34 9,210 1,500 76,401 43,574 283,380
------------ ---------- --------- -------- ------------ ---------- ---------
Total deferred debits and other assets 34 121,601 33,155 93,952 43,574 462,943
------------ ---------- --------- -------- ------------ ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Total Assets $ 24,630 $ - $517,570 $ 98,437 $ 359,374 $238,644 $7,887,219
============ ========== ========= ======== ============ ========== ==========
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and
Penelec, which are incorporated by reference from the respective annual reports
on Form 10-K for the year ended December 31, 1999, are an integral part of the
consolidating financial statements.
56
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GPU, Inc. and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1999
---------------------------------
(In Thousands)
GPU, Inc. and
Subsidiary Eliminations Jersey Central Metropolitan Pennsylvania
Companies and Power &Light Edison Electric GPU
LIABILITIES AND CAPITAL Consolidated Adjustments GPU, Inc. Company Company Company Telcom
------------ ----------- -------- -------------- ------------ ----------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Capitalization:
Common stock $ 331,958 $ 325,999 $ 331,958 $ 153,713 $ 66,273 $ 105,812
Capital surplus 1,011,721 2,449,170 1,011,721 510,769 400,200 285,486 $3,000
Retained earnings 2,426,350 896,858 2,426,350 720,878 13,581 59,265 2,165
Accumulated other comprehensive
income/(loss) (6,341) (6,785) (6,341) 7 21,363 10,619
----------- ----------- ----------- ----------- ----------- ----------- -------
Total 3,763,688 3,665,242 3,763,688 1,385,367 501,417 461,182 5,165
Reacquired common stock,
at cost (298,735) (298,735)
----------- ----------- ----------- ----------- ----------- ----------- -------
Total common stockholders'
equity 3,464,953 3,665,242 3,464,953 1,385,367 501,417 461,182 5,165
----------- ----------- ----------- ----------- ----------- ----------- -------
Cumulative preferred stock:
With mandatory redemption 73,167 73,167
Without mandatory redemption 12,649 12,649
Subsidiary-obligated
mandatorily redeemable
preferred securities 125,000 125,000
Trust preferred securities 200,000 100,000 100,000
Long-term debt 5,850,596 16,504 1,133,760 496,883 424,641
----------- ----------- ----------- ----------- ----------- ----------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Total capitalization 9,726,365 3,681,746 3,464,953 2,729,943 1,098,300 985,823 5,165
----------- ----------- ----------- ----------- ----------- ----------- -------
Current Liabilities:
Securities due within one year 581,147 2,576 50,846 50,025 13
Notes payable 1,171,869 123,500 53,600
Bank overdraft 224,585
Obligations under capital leases 48,165 48,165
Accounts payable 489,075 393,301 11,786 142,882 155,285 101,068 887
Taxes accrued 309,509 9,882 13,079 35,976 108,005 1,029
Interest accrued 76,246 344 24,523 16,738 6,588
Other 732,110 68,556 36,169 18,208 17,567
----------- ----------- ----------- ----------- ----------- ----------- -------
Total current liabilities 3,632,706 406,103 203,842 315,664 276,232 286,841 1,916
----------- ----------- ----------- ----------- ----------- ----------- -------
Deferred Credits and Other Liabilities:
Deferred income taxes 3,563,078 570,568 993,427 1,250,490
Unamortized investment tax credits 61,364 32,114 15,010 14,240
Three Mile Island Unit 2 future
costs 496,944 124,241 248,381 124,322
Nuclear fuel disposal fee 198,156 148,009 33,430 16,717
Power purchase contract loss
liability 3,300,878 1,624,769 735,833 940,276
Minority interest 64,307
Other 674,284 4,038 265,689 87,580 77,082 5,162
----------- ----------- ----------- ----------- ----------- ----------- -------
Total deferred credits and other
liabilities 8,359,011 4,038 2,765,390 2,113,661 2,423,127 5,162
----------- ----------- ----------- ----------- ----------- ----------- -------
Total Liabilities and Capital $21,718,082 $ 4,087,849 $ 3,672,833 $ 5,810,997 $ 3,488,193 $ 3,695,791 $12,243
=========== =========== =========== =========== =========== =========== =======
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and
Penelec, which are incorporated by reference from the respective annual reports
on Form 10-K for the year ended December 31, 1999, are an integral part of the
consolidating financial statements.
57
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GPU, Inc. and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1999
-----------------------------------
(In Thousands)
GPU GPU GPU GPU GPU GPU GPU
Advanced Generation Service Nuclear International Power Capital
Resources, Inc. Inc. Inc. Inc. Inc. Inc.
LIABILITIES AND CAPITAL Inc.
------------ ----------- ----------- ---------- ------------ ----------- --------
Capitalization:
<S> <C> <C> <C> <C> <C> <C> <C>
Common stock $ 50 $ 50 $ 100 $ 1
Capital surplus $ 25,900 127,966 97,849 $ 998,000
Retained earnings (11,469) (3,184) 8,885 106,737
Accumulated other comprehensive
income/(loss) 1,740 4 9 38 (40,565)
------------ ----------- ----------- ---------- --------- ----------- --------
Total 14,431 1,790 54 124,891 106,773 1,064,172
Reacquired common stock,
at cost
Total common stockholders'
------------ ----------- ----------- ---------- --------- ----------- --------
equity 14,431 1,790 54 124,891 106,773 1,064,172
Cumulative preferred stock:
With mandatory redemption
Without mandatory redemption
Subsidiary-obligated mandatorily
redeemable preferred securities
Trust preferred securities
Long-term debt 22,000 57,607 3,732,209
------------ ----------- ----------- ---------- --------- ----------- --------
Total capitalization 14,431 23,790 54 124,891 164,380 4,796,381
------------ ----------- ----------- ---------- --------- ----------- --------
Current Liabilities:
Securities due within one year 7,208 475,631
Notes payable 994,769
Bank overdraft 224,585
Obligations under capital leases
Accounts payable 9,780 224,365 48,629 12,900 4,464 170,330
Taxes accrued 572 3,251 157,479
Interest accrued 97 451 1,592 26,601
Other 417 104,327 24,463 152,444 1,597 308,362
------------ ----------- ----------- ---------- --------- ----------- --------
Total current liabilities 10,197 328,789 74,115 165,344 18,112 2,357,757
------------ ----------- ----------- ---------- --------- ----------- --------
Deferred Credits and Other Liabilities:
Deferred income taxes 2 15,321 671 36,419 1,797 694,383
Unamortized investment tax credits
Three Mile Island Unit 2 future
costs
Nuclear fuel disposal fee
Power purchase contract loss
liability
Minority interest 43,361 20,946
Other 149,670 23,597 32,720 10,994 17,752
Total deferred credits and other ------------ ----------- ----------- ---------- --------- ----------- --------
liabilities 2 164,991 24,268 69,139 56,152 733,081
------------ ----------- ----------- ---------- --------- ----------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Total Liabilities and Capital $ 24,630 $ - $ 517,570 $ 98,437 $ 359,374 $ 238,644 $7,887,219
============ =========== =========== ========== ========== ========== =========
<FN>
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and
Penelec, which are incorporated by reference from the respective annual reports
on Form 10-K for the year ended December 31, 1999, are an integral part of the
consolidating financial statements.
</FN>
58
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Income
For the Twelve Months Ended December 31, 1999
(In Thousands)
GPU, Inc. and
Subsidiary Eliminations Jersey Central Metropolitan Pennsylvania GPU
Companies and Power & Light Edison Electric Telcom
Consolidated Adjustments GPU, Inc. Company Company Company Inc.
------------ ----------- ----------- ---------- --------- ----------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Operating Revenues $4,757,124 $ 163,527 $2,018,209 $ 902,827 $ 921,965 $ 6,347
------------ ----------- ----------- ---------- --------- ---------- --------
Equity in Earnings of Subsidiaries 477,082 $ 477,082
------------ ----------- ----------- ---------- --------- ---------- --------
Services Rendered at Cost to Affiliated
Companies 1,509,784
------------ ----------- ----------- ---------- --------- ---------- --------
Services Rendered to Non-Affiliated
Companies 284,242
------------ ----------- ----------- ---------- --------- ---------- --------
Operating Expenses:
Fuel 304,621 379,897 91,044 86,156 82,397
Power purchased and interchanged:
Affiliates 137,243 127,406 3,415 6,422
Others 1,253,228 670,538 221,516 273,082
Deferral costs, net (38,108) (38,108)
Other operation and maintenance 1,495,402 1,381,161 13,532 482,874 250,220 248,034 6,230
Depreciation and amortization 542,939 4,506 241,842 88,989 78,384 130
Taxes, other than income taxes 190,212 44,111 76,824 39,283 42,046
------------ ----------- ----------- ---------- --------- ---------- --------
Total operating expenses 3,748,294 1,946,918 13,532 1,652,420 689,579 730,365 6,360
------------ ----------- ----------- ---------- --------- ---------- --------
Operating Income 1,008,830 487,717 463,550 365,789 213,248 191,600 (13)
------------ ----------- ----------- ---------- --------- ---------- --------
Other Income and Deductions:
Allowance for other funds used
during construction 432 140 164 268
Equity in undistributed earnings
of affiliates 89,746
------------ ----------- ----------- ---------- --------- ---------- --------
Other income/(expense), net 85,616 (3,386) 161 12,461 3,901 59,081 173
------------ ----------- ----------- ---------- --------- ---------- --------
Total other income and deductions 175,794 (3,246) 161 12,461 4,065 59,349 173
------------ ----------- ----------- ---------- --------- --------- --------
Income Before Interest Charges and
Preferred Dividends 1,184,624 484,471 463,711 378,250 217,313 250,949 160
------------ ----------- ----------- ---------- --------- --------- --------
Interest Charges and Preferred Dividends:
Long-term debt and notes payable 432,368 5,329 4,697 95,325 45,996 34,588
Trust preferred securities 8,345 4,369 3,976
Subsidiary-obligated mandatorily redeemable
preferred securities 24,627 10,700 8,950 4,977
Other interest 10,048 1,300 650 2,527 1,608
Allowance for borrowed funds used during
construction (3,897) (116) (1,775) (1,048) (1,074)
Preferred stock dividends of subsidiaries
inclusive of $2,116 loss on
reacquisitions 11,006 (11,006)
------------ ----------- ----------- ---------- --------- ---------- --------
Total interest charges and
preferred dividends 482,497 (4,493) 4,697 104,900 60,794 44,075
------------ ----------- ----------- ---------- --------- ---------- --------
Income before income taxes and minority
interest 702,127 488,964 459,014 273,350 156,519 206,874 160
Income taxes 239,623 876 100,970 61,396 54,383 58
Minority interest net income 3,490
------------ ----------- ----------- ---------- --------- ---------- --------
Net Income/(loss) $ 459,014 $ 488,088 $ 459,014 $ 172,380 $ 95,123 $ 152,491 $ 102
============ ============ =========== ========== ========= ========- ========
<FN>
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and
Penelec, which are incorporated by reference from one respective annual reports
on Form 10-K for the year ended December 31, 1999, are an integral part of the
consolidating financial statements.
</FN>
59
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Income
For the Twelve Months Ended December 31, 1999
----------------------------------------------
(In Thousands)
GPU GPU GPU GPU GPU GPU GPU
Advanced Generation Service Nuclear International Power Capital
Resources, Inc. Inc. Inc. Inc. Inc. Inc. Inc.
------------ ----------- ----------- ---------- --------- ----------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Operating Revenues $ 84,681 $ 83,434 $ 37,732 $ 865,456
------------ ----------- ----------- ---------- --------- ----------- --------
Equity in Earnings of Subsidiaries
Services Rendered at Cost to Affiliated
companies $ 262,918 $891,244 $355,622
------------ ----------- ----------- ---------- --------- ---------- --------
Services Rendered to Non-Affiliated
companies 281,052 2,785 405
------------ ----------- ----------- ---------- --------- ---------- --------
Operating Expenses:
Fuel 379,897 31,541 13,483
Power purchased and interchanged:
Affiliates
Others 88,092
Deferred costs, net
Other operation and maintenance 3,711 156,259 848,294 347,516 41,187 10,486 468,220
Depreciation and amortization 4,506 9,401 6,290 117,903
Taxes, other than income taxes 8,092 28,270 7,749 328 31,731
------------ ----------- ----------- ---------- --------- ----------- --------
Total operating expenses 91,803 544,248 881,070 355,265 82,457 30,259 617,854
------------ ----------- ----------- ---------- --------- ----------- --------
Operating Income (7,122) (278) 12,959 762 977 7,473 247,602
------------ ----------- ----------- ---------- --------- ---------- --------
Other Income and Deductions:
Allowance for other funds used
during construction 140
Equity in undistributed earnings
of affiliates, net 11,190 4,567 73,989
Other income/(expense), net 171 (95) (7,229) (176) 9,692 7,625 (3,535)
------------ ----------- ----------- ---------- --------- ---------- --------
Total other income and deductions 171 45 (7,229) (176) 20,882 12,192 70,454
------------ ----------- ----------- ---------- --------- ---------- --------
Income Before Interest Charges and
Preferred Dividends (6,951) (233) 5,730 586 21,859 19,665 318,056
------------ ----------- ----------- ---------- --------- ---------- --------
Interest Charges and Preferred Dividends:
Long-term debt and notes payable 4,023 604 3,560 248,904
Trust preferred securities
Subsidiary-obligated mandatorily redeemable
preferred securities
Other interest 1,009 291 440 4,823
Allowance for borrowed funds used during
construction (116)
------------ ----------- ----------- ---------- --------- ----------- --------
Preferred stock dividends of subsidiaries
Total interest charges and preferred
dividends (116) 5,032 291 1,044 3,560 253,727
------------ ----------- ----------- ---------- --------- ----------- --------
Income Before Income Taxes and Minority
Interest (6,951) (117) 698 295 20,815 16,105 64,329
Income taxes (2,393) (117) 698 295 9,478 5,152 10,579
------------ ----------- ----------- ---------- --------- ----------- --------
Minority interest net income 2,837 653
Net Income/(Loss) $ (4,558) $ - $ - $ - $ 11,337 $ 8,116 $ 53,097
============ =========== =========== ========== ========= ========= =========
<FN>
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and
Penelec, which are incorporated by reference from the respective annual reports
on Form 10-K for the year ended December 31, 1999, are an integral part of the
consolidating financial statements.
</FN>
60
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Retained Earnings
For the Twelve Months Ended December 31, 1999
----------------------------------------------
(In Thousands)
GPU, Inc. and
Subsidiary Eliminations Jersey Central Metropolitan Pennsylvania GPU
Companies and Power & Light Edison Electric Telcom
Consolidated Adjustments GPU, Inc. Company Company Company Inc .
------------ ----------- ----------- ---------- --------- ----------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at beginning of period $ 2,230,425 $ 1,529,775 $ 2,230,425 $ 893,016 $234,066 $ 367,653 $2,063
Net income/(loss) 459,014 488,088 459,014 172,380 95,123 152,491 102
Cash dividends declared
on common stock (263,089) (263,089)
Cash dividends declared
on common stock of
subsidiary companies - (1,110,000) (335,000) (315,000) (460,000)
Cash dividends on cumulative
preferred stock - (8,890) (8,670) (66) (154)
Loss on preferred stock
reacquisition - (2,115) (848) (542) (725)
------------ ----------- ----------- ---------- --------- ----------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at end of period $ 2,426,350 $ 896,858 $ 2,426,350 $ 720,878 $ 13,581 $ 59,265 $2,165
============ ============ =========== ========= ======== =========== =======
<FN>
- -----------------
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and
Penelec, which are incorporated by Reference from the respective annual reports
on Form 10-K for the year ended December 31, 1999, are an integral part of the
consolidating financial statements.
</FN>
61
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Retained Earnings
For the Twelve Months Ended December 31, 1999
----------------------------------------------
(In Thousands)
GPU GPU GPU GPU GPU GPU GPU
Advanced Generation Service Nuclear International Power Capital
Resources, Inc. Inc. Inc. Inc. Inc. Inc. Inc.
------------ ----------- ----------- - --------- --------- ----------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at beginning of period $ (6,911) $ - $ - $ - $ (14,521) $ 769 $ 53,640
Net income/(loss) (4,558) 11,337 8,116 53,097
Cash dividends declared
on common stock
Cash dividends declared
on common stock of
subsidiary companies
Cash dividends on
cumulative preferred
stock
Loss on preferred stock
reacquisition
------------ ----------- ----------- ---------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at end of period $ (11,469) $ - $ - $ - $ (3,184) $ 8,885 $106,737
========== =========== =========== ========== ========= ========== ========
<FN>
- -----------------------
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and
Penelec, which are incorporated by reference from the respective annual reports
on Form 10-K for the year ended December 31, 1999, are an integral part of the
consolidating financial statements.
</FN>
62
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Comprehensive Income
-------------------------------------------------
For the Twelve Months Ended December 31, 1999
(In Thousands)
GPU, Inc. and
Subsidiary Eliminations Jersey Central Metropolitan Pennsylvania GPU
Companies and Power & Light Edison Electric Telcom
Consolidated Adjustments GPU, Inc. Company Company Company Inc.
------------ ----------- ----------- ---------- --------- ----------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Net income/(loss) $ 459,014 $ 488,088 $ 459,014 $ 172,380 $ 95,123 $ 152,491 $ 102
Other comprehensive income/(loss),
net of tax:
Net unrealized gains on
investments 5,838 5,393 5,838 7 4,315 2,101
Foreign currency translation 13,859 13,859 13,859
Minimum pension liability 5,266 5,266 5,266 425 528 165
--------- ----------- ---------- ---------- --------- ---------- -------
Total other comprehensive
income/(loss) 24,963 24,518 24,963 432 4,843 2,266
-------- ----------- ---------- ---------- --------- ---------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Comprehensive income $ 483,977 $ 512,606 $ 483,977 $ 172,812 $ 99,966 $ 154,757 $ 102
========== =========== ========= ========= ========= ========== ======
<FN>
- -----------------
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and
Penelec, which are incorporated by reference from the respective annual reports
on Form 10-K for the year ended December 31, 1999, are an integral part of the
consolidating financial statements.
</FN>
63
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Comprehensive Income
For the Twelve Months Ended December 31, 1999
(In Thousands)
GPU GPU GPU GPU GPU GPU GPU
Advanced Generation Service Nuclear International Power Capital
Resources, Inc. Inc. Inc. Inc. Inc. Inc. Inc.
------------ ----------- ----------- ---------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Net income/(loss) $ (4,558) $ - $ - $ - $ 11,337 $ 8,116 $ 53,097
Other comprehensive income/(loss),
net of tax:
Net unrealized gains on
investments 1,740 4 (2,899) 125
Foreign currency
translation 7 37 13,815
Minimum pension liability 215 3,933
--------- --------- -------- --------- -------- --------- ------
Total other
comprehensive
income/(loss) 215 5,673 4 (2,892) 37 13,940
--------- ----------- -------- --------- --------- ----------- -------
Comprehensive income $ (4,558) $ 215 $ 5,673 $ 4 $ 8,445 $ 8,153 $ 67,037
========= ======= ======== ======== ======== ======== =======
<FN>
- ------------------
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and
Penelec, which are incorporated by reference from the respective annual reports
on Form 10-K for the year ended December 31, 1999, are an integral part of the
consolidating financial statements.
</FN>
64
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Cash Flows
For the Twelve Months Ended December 31, 1999
---------------------------------------------
(In Thousands)
GPU, Inc. and
Subsidiary Eliminations Jersey Central Metropolitan Pennsylvania
Companies and Power & Light Edison Electric
Consolidated Adjustments GPU, Inc. Company Company Company
------------ ------------ --------- ------- ------- -------
Operating Activities:
- ---------------------
<S> <C> <C> <C> <C> <C> <C>
Net income $ 459,014 $ 488,088 $ 459,014 $ 172,380 $ 95,123 $ 152,491
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries (477,082) (477,082)
Depreciation and amortization 568,832 272,284 91,575 78,072
Amortization of property under capital leases 47,584 29,507 12,041 6,036
NJBPU restructuring rate orders 115,000 115,000
(Gain)/loss on sale of investments (64,019) (2,011) (59,313)
Equity in undistributed (earnings)/losses of
affiliates, net of distributions received (62,170)
Deferred income taxes & investment tax credits, net (717,768) (96,183) (79,142) (417,559)
Deferred costs, net (37,841) (37,841)
Changes in working capital:
Receivables (84,282) 18,019 2,506 (57,943) (53,811) (19,896)
Materials and supplies 81,297 46,023 36,944 56,559
Special deposits and prepayments 42,247 8,495 (94) 9,660 4,803 18,466
Payables and accrued liabilities (22,972) (8,135) (981) (19,861) (80,141) 29,484
Due to/from affiliates 14,812 (6,755) (5,012) 14,577
Nonutility generation contract buyout costs (94,034) (35,500) (55,034) (3,500)
Other, net (79,636) (3,318) 8,179 (12,327) (69,683) (120,874)
------- ------ ----- ------- ------- --------
Net cash provided (required) by operating activities 151,252 26,067 6,354 378,444 (104,348) (265,457)
------- ------ ----- ------- -------- --------
Investing Activities:
Acquisitions, net of cash acquired (1,670,739)
Capital expenditures and investments (460,952) (140,915) (66,388) (78,331)
Proceeds from sale of investments 2,581,151 413,753 641,273 1,493,444
Contributions to nonutility generation trusts (266,701) (266,701)
Contributions to decommissioning trusts (168,657) (59,175) (33,556) (75,926)
Other, net 61,560 3,856 (312) (2,162) (45) 1,002
------ ----- ---- ------ --- -----
Net cash provided/(required) by investing activities 75,662 3,856 (312) 211,501 541,284 1,073,488
------ ----- ---- ------- ------- ---------
Financing Activities:
Issuance of long-term debt 1,787,094 348,218
Retirement of long-term debt (1,883,850) (18,379) (12) (30,024) (600,011)
Increase/(Decrease) in notes payable, net 882,352 (3,856) 54,400 (122,344) (79,540) (32,423)
Issuance of trust preferred securities 193,070 96,535 96,535
Capital lease principal payments (51,040) (27,347) (15,786) (7,907)
Redemption of subsidiary-obligated mandatorily
redeemable preferred securities (205,383) (100,000) (105,383)
Redemption of preferred stock of subsidiaries (60,944) (30,940) (12,598) (17,406)
Reacquisition of common stock (225,821) (225,821)
Dividends paid on common stock (264,448) (264,448)
Dividends paid on preferred stock (7,688) (7,468) (66) (154)
Dividends paid on common stock - Internal 1,126,500 (335,000) (315,000) (460,000)
Capital stock paid in capital (698,900) 30,000
--------- ------- --------- ------- ------ -------
Net cash provided (required) by financing activities 171,030 (29,923) (8,269) (523,111) (426,479) (778,531)
Effect of exchange rate changes on cash 849
--------- ------- --------- ------- ------- -------
Net increase (decrease) in cash and temporary
cash investments from above activities 398,793 (2,227) 66,834 10,457 29,500
Cash and temporary cash investments, beginning of year 72,755 2,356 1,850 442 2,750
--------- ------- --------- ------- ------- -------
Cash and temporary cash investments, end of year $ 471,548 $ $ 129 $ 68,684 $ 10,899 $ 32,250
========== ============ ========== ========= ========= ==========
Supplemental Disclosure:
Interest and preferred dividends paid $ 459,496 $ 5,409 $ 4,759 $ 115,624 $ 59,380 $ 55,779
========== ============ ========== ========= ========= ==========
Income taxes paid (refunded) $ 702,355 $ 34 $ 189,304 $ 120,277 $ 413,810
========== ========== ========= ========= ==========
New capital lease obligations incurred $ 37,662 $ 9,407 $ 18,840 $ 9,415
========== ========= ========= ==========
Common stock dividends declared but not paid $ 64,557 $ 64,557
========== ==========
<FN>
- ---------------------------
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and
Penelec, which are incorporated by reference from the respective annual reports
on Form 10-K for the year ended December 31, 1999, are an integral part of the
consolidating financial statements.
65
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Cash Flows
For the Twelve Months Ended December 1, 1999
--------------------------------------------
(In Thousands)
GPU GPU GPU GPU GPU
Telcom Advanced Generation Service Nuclear
Inc. Resources Inc. Inc. Inc.
---- --------- ---- ---- ----
<S> <C> <C> <C> <C> <C> >
Operating Activities:
Net income $ 102 $ (4,558)
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries
Depreciation and amortization 135 $ 4,506
Amortization of property under capital leases
NJBPU restructuring rate order
(Gain)/loss on sale of investment
Equity in undistributed (earnings)/losses of affiliates,
Net of distributions received
Deferred income taxes and investment tax credits, net (2,128) $ 14,440 (89,683) $ 224
Deferred costs, net
Changes in working capital:
Receivables (546) (15,003) 9,506 (4,333) 2,289
Materials and supplies (148) (58,081)
Special deposits and prepayments (54) 5,137 (29,087) 148
Payables and accrued liabilities (711) 7,783 (86,581) 169,607 (3,817)
Due to/from affiliates (154) 31 80,577 (96,637) (2,437)
Nonutility generation contract buyout costs
Other, net 4,881 48 (23,928) 110,008 3,546
----- ------- ------- ------- -----
Net cash provided (required) by operating activities 1,377 (11,699) (849) 6,300 (47)
----- ------- ------- ------- -----
Investing Activities:
Acquisitions, net of cash acquired
Capital expenditures and investments (2,366) (3,391)
Proceeds from sale of investments
Contributions to nonutility generation trusts
Contributions to decommissioning trusts
Other, net (88) 759 (2,214) 35
----- ------ ------ ------- -----
Net cash provided/(required) by investing activities (2,366) (88) 759 (5,605) 35
----- ------ ------ ------- -----
Financing Activities:
Issuance of long-term debt
Retirement of long-term debt
Increase (Decrease) in notes payable, net
Issuance of trust preferred securities
Capital lease principal payments
Redemption of subsidiary-obligated mandatorily
redeemable preferred securities
Redemption of preferred stock of subsidiaries
Reacquisition of common stock
Dividends paid on common stock
Dividends paid on preferred stock
Dividends paid on common stock - Internal
Capital stock paid in capital 18,900
----- ------ ------ ------- -----
Net cash provided (required) by financing activities 18,900
----- ------ ------ ------- -----
Effect of exchange rate changes on cash ----- ------ ------ ------- -----
Net increase/(decrease) in cash and temporary
cash investments from above activities (989) 7,113 (90) 695 (12)
Cash and temporary cash investments, beginning of year 3,845 757 90 10 55
----- ------ ------ ------- -----
Cash and temporary cash investments, end of year $ 2,856 $ 7,870 $ - $ 705 $ 43
========== ======== ===== ======== =====
Supplemental Disclosure:
Interest and preferred dividends paid 4,733 291
===== =====
Income taxes paid (refunded) $ 1,508 $ (2,146) $ (238) $ 13,991 $1,426
========== ======== ======== ======== ======
New capital lease obligations incurred
Common stock dividends declared but not paid
<FN>
- ----------------
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and
Penelec, which are incorporated by reference from the respective annual reports
on Form 10-K for the year ended December 31, 1999, are an integral part of the
consolidating financial statements.
</FN>
66
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Cash Flows
For the Twelve Months Ended December 31, 1999
---------------------------------------------
(In Thousands)
GPU GPU GPU
International Power Capital
Inc. Inc. Inc.
------------- -------- --------
Operating Activities:
<S> <C> <C> <C>
Net income $ 11,337 $ 8,116 $ 53,097
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries
Depreciation and amortization (1,933) 6,290 117,903
Amortization of property under capital leases
NJBPU restructuring rate order
(Gain)/loss on sale of investments (12,163) 9,468
Voluntary enhanced retirement programs
Equity in undistributed (earnings)/losses of affiliates,
net of distributions received 4,976 (4,567) (62,579)
Deferred income taxes and investment tax credits, net (3,719) 1,469 (45,487)
Deferred costs, net
Changes in working capital:
Receivables (408) (15,073) 86,449
Materials and supplies
Special deposits and prepayments 577 1,012 40,174
Payables and accrued liabilities (3,310) (5,398) (37,181)
Due to/from affiliates 4,085 (4,298) 1,211
Nonutility generation contract buyout costs
Other, net 2,333 10,260 4,603
----- ------ -----
Net cash provided (required) by operating activities 1,775 (2,189) 167,658
----- ------ -------
Investing Activities:
Acquisitions, net of cash acquired (1,670,739)
Capital expenditures and investments (1,225) (30,421) (137,915)
Proceeds from sale of investments 32,123 558
Contributions to nonutility generation trusts
Contributions to decommissioning trusts
Other, net 22,175 42,383 3,883
------ ------ -----
Net cash provided/(required) by investing activities 53,073 11,962 (1,804,213)
------ ------ ----------
Financing Activities:
Issuance of long-term debt 25,000 1,413,876
Retirement of long-term debt (18,379) (29,814) (1,223,989)
Increase (Decrease) in notes payable, net (11,600) (3,857) 1,073,860
Issuance of trust preferred securities
Capital lease principal payments
Redemption of subsidiary-obligated mandatorily redeemable
preferred securities
Redemption of preferred stock of subsidiaries
Reacquisition of common stock
Dividends paid on common stock
Dividends paid on preferred stock
Dividends paid on common stock - Internal (16,500)
Capital stock paid in capital 650,000
------ ------- ---------
Net cash provided (required) by financing activities (46,479) (8,671) 1,913,747
------ ------- ---------
Effect of exchange rate changes on cash 37 812
------ ------- ---------
Net increase (decrease) in cash and temporary
cash investments from above activities 8,369 1,139 278,004
Cash and temporary cash investments, beginning of year 4,589 23,786 32,225
----- ------ ------
Cash and temporary cash investments, end of year $ 12,958 $ 24,925 $ 310,229
========= ========= ==========
Supplemental Disclosure:
Interest and preferred dividends paid $ 775 $ 4,489 $ 219,075
========= ========= ==========
Income taxes paid (refunded) $ 14,798 $ 530 $ (50,939)
========= ========= ==========
New capital lease obligations incurred
Common stock dividends declared but not paid
<FN>
- -------------------------------
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and
Penelec, which are incorporated by reference from the respective annual reports
on Form 10-K for the year ended December 31, 1999 are an integral part of the
consolidating financial statements.
</FN>
67
</TABLE>
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
A. Annual Reports
The following documents are incorporated by reference:
A-1 GPU, Inc. - Annual Report on Form 10-K for 1999 (File No. 1-6047)
Jersey Central Power & Light Company - Annual Report on Form 10-K for
1999 (File No. 1-3141)
Metropolitan Edison Company - Annual Report on Form 10-K for 1999
(File No.1-446)
Pennsylvania Electric Company - Annual Report on Form 10-K for 1999
(File No.1-3522)
B. Certificates of Incorporation, Articles of Incorporation, By-Laws,
Partnership Agreements and Other Organizational Documents
GPU, GPU Advanced Resources, GPU Telcom, GPUS & GPUN
B-1 Articles of Incorporation of GPU, Inc., as amended through
March 27, 1990 - incorporated by reference to Exhibit 3-A to GPU's
Annual Report on Form 10-K for 1989, File No. 1-6047.
B-2 Articles of Amendment to Articles of Incorporation of GPU, Inc., dated
as of May 5, 1995 - incorporated by reference to Exhibit A-4,
Certificate Pursuant to Rule 24, File No. 70-8569.
B-3 Articles of Incorporation of GPU, Inc. as amended August 1, 1996 -
incorporated by reference to Exhibit 3-A-2 to GPU, Inc.'s Annual Report
on Form 10-K for 1996, File No. 1-6047.
B-4 Articles of Incorporation of GPUS, as amended through April 27, 1994 -
incorporated by reference to Exhibit A-1 to Application on Form U-1,
File No. 70-4990.
B-5 Articles of Incorporation of GPUS, as amended through August 1, 1996 -
incorporated by reference to Exhibit B-5 to GPU, Inc.'s Annual Report on
Form U5S for the year 1996, File No. 30-126.
B-6 Certificate of Incorporation of GPUN, dated as of September 5, 1980 -
incorporated by reference to Exhibit A-1 to Application on Form U-1,
File No. 70-6443.
B-7 Certificate of Amendment to the Certificate of Incorporation of GPUN
dated August 1, 1996 - incorporated by reference to Exhibit B-7 to GPU,
Inc.'s Annual Report on Form U5S for the year 1996, File No. 30-126.
B-8 Articles of Incorporation of Saxton Nuclear Experimental Corporation
(Saxton) dated as of March 29, 1974 - incorporated by reference to
Exhibit B-12 to GPU, Inc.'s Annual Report on Form U5S for the year 1988,
File No. 30-126.
B-9 Amended By-Laws of GPUS, dated as of January 1, 1999 - incorporated by
reference to Exhibit B-12 to GPU, Inc.'s Annual Report on Form U5S for
the year 1999, File No. 30-126.
68
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU, GPU Advanced Resources, GPU Telcom, GPUS & GPUN
B-10 Amended By-Laws of GPUN, dated as of April 29, 1993 - incorporated by
reference to Exhibit 3-A to GPU, Inc.'s Annual Report on Form 10K for
1993, File No.1-6047.
B-11 Certificate of Incorporation of GPU Energy Services, Inc., dated as of
September 13, 1996- incorporated by reference to Exhibit B-15 to GPU,
Inc.'s Annual Report on Form U5S for the year 1997, File No. 30-126.
B-12 Certificate of Amendment of Certificate of Incorporation of GPU Energy
Services, Inc., dated as of January 15, 1997 to change the name of the
company to GPU Advanced Resources, Inc- incorporated by reference to
Exhibit B-16 to GPU Inc.'s Annual Report on Form U5S for the year 1997,
File No. 30-126.
B-13 By-Laws of GPU Advanced Resources, Inc., dated as of March 6, 1997-
incorporated by reference to Exhibit B-17 to GPU Inc.'s Annual Report on
Form U5S for the year 1997, File No. 30-126.
B-14 Certificate of Incorporation of GPU Telcom Services, Inc., dated as of
September 13, 1996- incorporated by reference to Exhibit B-18 to GPU,
Inc.'s Annual Report on Form U5S for the year 1997, File No. 30-126.
B-15 By-Laws of GPU Telcom Services, Inc., dated as of March 6, 1997-
incorporated by reference to Exhibit B-19 to GPU, Inc.'s Annual Report
on Form U5S for the year 1997, File No. 30-126.
B-16 Amended By-Laws of Saxton, dated as of March 30, 1984 - incorporated by
reference to Exhibit A-1(e) to Application on Form U-1, File No.
70-7398.
B-17 Amendment to Section 37 of the By-Laws of Saxton, dated as of August 27,
1987 - incorporated by reference to Exhibit A-2(b), Certificate Pursuant
to Rule 24, File No. 70-7398.
B-18 By-Laws of GPU, Inc. as amended May 6, 1999 - incorporated by reference
to Exhibit 3-B of GPU, Inc.'s Annual Report on Form 10-K for the year
1999, File No. 1-6047.
JCP&L
B-19 Restated Certificate of Incorporation of JCP&L, dated as of May 26, 1982
- incorporated by reference to Exhibit 3-A to JCP&L's Annual Report on
Form 10-K for 1990, File No. 1-3141.
B-20 Certificate of Amendment to Restated Certificate of Incorporation of
JCP&L, dated as of June 19, 1992 - incorporated by reference to Exhibit
A-2(a), Certificate Pursuant to Rule 24, File No. 70-7949.
B-21 Certificate of Amendment to Restated Certificate of Incorporation of
JCP&L, dated as of June 19, 1992 - incorporated by reference to Exhibit
A-2(a)(i), Certificate Pursuant to Rule 24, File No. 70-7949.
69
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
B-22 Certificate of Incorporation of JCP&L Preferred Capital, Inc., dated as
of February 21, 1995 - incorporated by reference to Exhibit A-1,
Application on Form U-1, File No. 70-8495.
B-23 Amended By-Laws of JCP&L, dated as of May 25, 1993 - incorporated by
reference to Exhibit 3-B to JCP&L's Annual Report on Form 10-K for 1993,
File No. 1-3141.
B-24 By-Laws of JCP&L Preferred Capital, Inc., dated as of February 21, 1995
- incorporated by reference to Exhibit A-2, Application on Form U-1,
File No. 70-8495.
B-25 Amended and Restated Limited Partnership Agreement of JCP&L Capital,
L.P., dated as of May 11, 1995 - incorporated by reference to Exhibit
A-5(a), Certificate Pursuant to Rule 24, File No. 70-8495.
B-26 Action Creating Series A Preferred Securities of JCP&L Capital, L.P.,
dated as of May 11, 1995 - incorporated by reference to Exhibit A-6(a),
Certificate Pursuant to Rule 24, File No. 70-8495.
B-27 Payment and Guarantee Agreement of JCP&L, dated as of May 18, 1995 -
incorporated by reference to Exhibit B-1(a), Certificate Pursuant to
Rule 24, File No. 70-8495.
Met-Ed
B-28 Articles of Incorporation of York Haven Power Company, dated as of
December 18, 1967 - incorporated by reference to Exhibit B-15 to GPU,
Inc.'s Annual Report on Form U5S for the year 1988, File No. 30-126.
B-29 Certificate of Incorporation of Met-Ed Preferred Capital, Inc., dated as
of May 6, 1994 - incorporated by reference to Exhibit 3-C to
Registration Statement on Form S-3, Registration No. 33-53673.
B-30 Amended By-Laws of Met-Ed, dated as of May 22, 1997- incorporated by
reference to Exhibit B-35 to GPU, Inc.'s Annual Report on Form U5S for
the year 1997, File No. 30-126.
B-31 Amended By-Laws of York Haven Power Company, dated as of January 1, 1985
- incorporated by reference to Exhibit A-1(d), Application on Form U-1,
File No. 70-7398.
B-32 Amendment to Section 29 of the By-Laws of York Haven Power Company,
dated as of September 8, 1987 - incorporated by reference to Exhibit
A-2(a), Certificate Pursuant to Rule 24, File No. 70-7398.
B-33 By-Laws of Met-Ed Preferred Capital, Inc., dated as of May 6, 1994 -
incorporated by reference to Exhibit A-2, Application on Form U-1, File
No. 70-8401.
B-34 Amended and Restated Limited Partnership Agreement of Met-Ed Capital,
L.P., dated as of August 16, 1994 - incorporated by reference to Exhibit
A-5(a), Certificate Pursuant to Rule 24, File No. 70-8401.
70
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
B-35 Certificate of Incorporation of Met-Ed Preferred Capital II, Inc., dated
as of September 1, 1998- incorporated by reference to Exhibit 3-C,
Registration Statement on Form S-3, SEC Registration Nos. 333-62967,
333-62967-01 and 333-62967-02.
B-36 By-Laws of Met-Ed Preferred Capital II, Inc., dated as of September 1,
1998- incorporated by reference to Exhibit 3-D, Registration Statement
on Form S-3, SEC Registration Nos. 333-62967, 333-62967-01 and
333-62967-02.
B-37 Certificate of Limited Partnership of Met-Ed Capital II, L.P., dated as
of September 1, 1998-incorporated by reference to Exhibit 3E,
Registration Statement on Form S-3, SEC Registration Nos. 333-62967,
333-62967-01 and 333-62967-02.
B-38 Certificate of Business Trust Registration of Met-Ed Capital Trust,
dated as of September 1,1998- incorporated by reference to Exhibit 4-K,
Registration Statement on Form S-3, SEC Registration Nos. 333-62967,
333-62967-01, and 333-62967-02.
B-39 Restated Articles of Incorporation of Met-Ed dated March 8, 1999 -
incorporated by reference to Exhibit 3-E of Met-Ed's Annual Report on
Form 10-K for the year 1999, File No. 1-446.
B-40 Payment and Guarantee Agreement of Met-Ed, dated May 28, 1999 -
incorporated by reference to Exhibit B-1(a), Certificate Pursuant to
Rule 24, File No. 70-9329.
B-41 Amendment No. 1 to Payment and Guarantee Agreement of Met-Ed, dated
November 23, 1999 - incorporated by reference to Exhibit 4-H of Met-Ed's
Annual Report on Form 10-K for the year 1999, File No. 1-446.
Penelec
B-42 Articles of Incorporation of Nineveh Water Company (formerly Penelec
Water Company), dated as of May 22, 1920 - incorporated by reference to
Exhibit B-36 to GPU, Inc.'s Annual Report on Form U5S for the year 1988,
File No. 30-126.
B-43 Certificate of Incorporation of Penelec Preferred Capital, Inc., dated
as of May 9, 1994 - incorporated by reference to Exhibit 3-C to
Registration Statement on Form S-3, Registration No. 33-53677.
B-44 Amended By-Laws of Penelec, dated as of May 22, 1997 - incorporated by
reference to Exhibit B-45 to GPU, Inc.'s Annual Report on Form U5S for
the year 1997, File No. 30-126.
B-45 By-Laws of Nineveh Water Company, dated as of May 22, 1920 -
incorporated by reference to Exhibit A-1(c), Application on Form U-1,
File No. 70-7398.
71
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
B-46 Amendment to Article V, Section 6 of the By-Laws of Nineveh Water
Company, dated as of August 27, 1987 - incorporated by reference to
Exhibit A-1 (c), Certificate Pursuant to Rule 24, File No. 70-7398.
B-47 By-Laws of Penelec Preferred Capital, Inc., dated as of May 9, 1994 -
incorporated by reference to Exhibit A-2, Application on Form U-1, File
No. 70-8403.
B-48 Amended and Restated Limited Partnership Agreement of Penelec Capital,
L.P., dated as of June 27, 1994 - incorporated by reference to Exhibit
A-5(a), Certificate Pursuant to Rule 24, File No. 70-8403.
B-49 Payment and Guarantee Agreement of Penelec, dated June 16, 1999 -
incorporated by reference to Exhibit B-1(a), Certificate Pursuant to
Rule 24, File No. 70-9327.
B-50 Amendment No. 1 to Payment and Guarantee Agreement of Penelec, dated
November 23, 1999 - incorporated by reference to Exhibit 4-J of
Penelec's Annual Report on Form 10-K for the year 1999, File No. 1-3522.
B-51 Certificate of Incorporation of Penelec Preferred Capital II, Inc.,
dated as of August 20, 1998- incorporated by reference to Exhibit 3-C,
Registration Statement on Form S-3, SEC Registration Nos. 333-62295,
333-62295-01 and 333-62295-02.
B-52 By-Laws of Penelec Preferred Capital II, Inc., dated as of August 20,
1998- incorporated by reference to Exhibit 3-D, Registration Statement
on Form S-3, SEC Registration Nos. 333-62295, 333-62295-01 and
333-62295-02.
B-53 Certificate of Limited Partnership of Penelec Capital II, L.P., dated as
of August 20, 1998- incorporated by reference to Exhibit 3-E,
Registration Statement on Form S-3, SEC Registration Nos. 333-62295,
333-62295-01 and 333-62295-02.
B-54 Certificate of Business Trust Registration of Penelec Capital Trust,
dated as of August 20, 1998- incorporated by reference to Exhibit 4-J,
Registration Statement on Form S-3, SEC Registration Nos. 333-62295,
333-62295-01 and 333-62295-02.
B-55 Restated Articles of Incorporation of Penelec dated March 8, 1999 -
incorporated by reference to Exhibit 3-G of Penelec's Annual Report on
Form 10-K for the year 1999, File No. 1-3522.
GPU Electric & GPU International Group
B-56 Amended and Restated Certificate of Incorporation of Energy Initiatives,
Inc., dated as of September 14, 1990 - incorporated by reference to
Exhibit B-5 to GPU, Inc.'s Annual Report on Form U5S for the year 1990,
File No. 30-126.
72
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU Electric & GPU International Group
B-57 Certificate of Amendment of Certificate of Incorporation of Energy
Initiatives, Inc., dated as of August 1, 1996 to change the name of the
company to GPU International, Inc. - incorporated by reference to
Exhibit B-48 to GPU, Inc.'s Annual Report on Form U5S for the year 1996,
File No. 30-126.
B-58 Certificate of Incorporation of Elmwood Energy Corporation, dated as of
February 13, 1987 - incorporated by reference to Exhibit B-11 to GPU,
Inc.'s Annual Report on Form U5S for the year 1988, File No. 30-126.
B-59 Certificate of Incorporation of Armstrong Energy Corporation, dated as
of July 14, 1988 - incorporated by reference to Exhibit B-14 to GPU,
Inc.'s Annual Report on Form U5S for the year 1989, File No. 30-126.
B-60 Certificate of Incorporation of Geddes Cogeneration Corporation, dated
as of March 23, 1989- incorporated by reference to Exhibit B-16 to GPU,
Inc.'s Annual Report on Form U5S for the year 1989, File No. 30-126.
B-61 Articles of Incorporation of North Canadian Power, Inc., dated as of
November 21, 1989 - incorporated by reference to Exhibit B-13 to GPU,
Inc.'s Annual Report on Form U5S for the year 1994, File No. 30-126.
B-62 Certificate of Amendment of Articles of Incorporation of North Canadian
Power, Inc., dated as of May 18, 1994, to change to name of the company
to NCP Energy, Inc. - incorporated by reference to Exhibit B-14 to GPU,
Inc.'s Annual Report on Form U5S for the year 1994, File No. 30-126.
B-63 Certificate of Incorporation of NCP Lake Power, Inc., dated as of May
23, 1991 - incorporated by reference to Exhibit B-15 to GPU, Inc.'s
Annual Report on Form U5S for the year 1994, File No. 30-126.
B-64 Certificate of Incorporation of NCP Gem, Inc., dated as of May 23, 1991
- incorporated by reference to Exhibit B-16 to GPU, Inc.'s Annual Report
on Form U5S for the year 1994, File No. 30-126.
B-65 Certificate of Incorporation of Umatilla Groves, Inc., dated as of June
17, 1992 - incorporated by reference to Exhibit B-17 to GPU, Inc.'s
Annual Report on Form U5S for the year 1994, File No. 30-126.
B-66 Certificate of Incorporation of NCP Dade Power, Inc., dated as of May
23, 1991 - incorporated by reference to Exhibit B-18 to GPU, Inc.'s
Annual Report on Form U5S for the year 1994, File No. 30-126.
B-67 Certificate of Incorporation of NCP Pasco, Inc., dated as of May 23,
1991 - incorporated by reference to Exhibit B-19 to GPU, Inc.'s Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-68 Articles of Incorporation of ADA Management Corporation, dated as of
November 20, 1990 - incorporated by reference to Exhibit B-20 to GPU,
Inc.'s Annual Report on Form U5S for the year 1994, File No. 30-126.
73
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU Electric & GPU International Group
B-69 Certificate of Amendment of Articles of Incorporation of ADA Management
Corporation, dated as of July 31, 1993 to change the name of the company
to Commerce Cogeneration Corporation - incorporated by reference to
Exhibit B-21 to GPU, Inc.'s Annual Report on Form U5S for the year 1994,
File No. 30-126.
B-70 Certificate of Amendment of Articles of Incorporation of Commerce
Cogeneration Corporation, dated as of July 31, 1993 to change the name
of the company to NCP ADA Power, Inc. - incorporated by reference to
Exhibit B-22 to GPU, Inc.'s Annual Report on Form U5S for the year 1994,
File No. 30-126.
B-71 Certificate of Incorporation of NCP Brooklyn Power, Inc., dated as of
July 9, 1993 - incorporated by reference to Exhibit B-23 to GPU, Inc.'s
Annual Report on Form U5S for the year 1994, File No. 30-126.
B-72 Articles of Incorporation of Trigen Power Company, dated as of December
23, 1988 - incorporated by reference to Exhibit B-24 to GPU, Inc.'s
Annual Report on Form U5S for the year 1994, File No. 30-126.
B-73 Certificate of Amendment of Articles of Incorporation of Trigen Power
Company, dated as of February 21, 1991 to change the name of the company
to ADA Power Company - incorporated by reference to Exhibit B-25 to GPU,
Inc.'s Annual Report on Form U5S for the year 1994, File No. 30-126.
B-74 Certificate of Amendment of Articles of Incorporation of ADA Power
Company, dated as of August 31, 1993 to change the name of the company
to NCP Commerce Power, Inc. - incorporated by reference to Exhibit B-26
to GPU, Inc.'s Annual Report on Form U5S for the year 1994, File No.
30-126.
B-75 Certificate of Incorporation of NCP Houston Power, Inc., dated as of
December 1, 1993 - incorporated by reference to Exhibit B-27 to GPU,
Inc.'s Annual Report on Form U5S for the year 1994, File No. 30-126.
B-76 Certificate of Incorporation of NCP Perry, Inc., dated as of December 1,
1993 - incorporated by reference to Exhibit B-28 to GPU, Inc.'s Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-77 Certificate of Incorporation of NCP New York, Inc., dated as of July 9,
1993 - incorporated by reference to Exhibit B-29 to GPU, Inc.'s Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-78 Certificate of Incorporation of EI Selkirk, Inc., dated as of October
31, 1994 - incorporated by reference to Exhibit B-30 to GPU, Inc.'s
Annual Report on Form U5S for the year 1994, File No. 30-126.
B-79 Certificate of Incorporation of EI Fuels Corporation, dated as of August
9, 1990 - incorporated by reference to Exhibit B-17 to GPU, Inc.'s
Annual Report on Form U5S for the year 1993, File No. 30-126.
74
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU Electric & GPU International Group
B-80 Certificate of Incorporation of EI Power, Inc., dated as of March 15,
1994 - incorporated by reference to Exhibit B-41 to GPU, Inc.'s Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-81 Certificate of Amendment of Certificate of Incorporation of EI Power,
Inc., dated as of August 1, 1996 to change the name of the company to
GPU Power, Inc. - incorporated by reference to Exhibit B-77 to GPU,
Inc.'s Annual Report on Form U5S for the year 1996, Form No. 30-126.
B-82 Certificate of Incorporation of Bermuda Hundred Energy, Inc., dated as
of July 25, 1989 - incorporated by reference to Exhibit B-12 to GPU,
Inc.'s Annual Report on Form U5S for the year 1989, File No. 30-126
B-83 Certificate of Amendment to Certificate of Incorporation of Bermuda
Hundred Energy, Inc., dated as of March 16, 1993 - incorporated by
reference to Exhibit B-12-1 to GPU, Inc.'s Annual Report on Form U5S for
the year 1992, File No. 30-126.
B-84 Certificate of Amendment of the Certificate of Incorporation of Bermuda
Hundred Energy, Inc., dated as of March 16, 1993 to change the name of
the corporation to Hanover Energy Corporation - incorporated by
reference to Exhibit B-14 to GPU, Inc.'s Annual Report on Form U5S for
the year 1993, File No. 30-126.
B-85 Certificate of Incorporation of EI Power (China) II, Inc., dated as of
September 20, 1994 - incorporated by reference to Exhibit B-47 to GPU,
Inc.'s Annual Report on Form U5S for the year 1994, File No. 30-126.
B-86 Certificate of Incorporation of EI Power (China) III, Inc., dated as of
September 20, 1994 - incorporated by reference to Exhibit B-47 to GPU,
Inc.'s Annual Report on Form U5S for the year 1994, File No. 30-126.
B-87 Certificate of Incorporation of Austin Cogeneration Corporation, dated
as of January 27, 1995 - incorporated by reference to Exhibit B-79 to
GPU, Inc.'s Annual Report on Form U5S for the year 1995, File No.
30-126.
B-88 Certificate of Incorporation of Guaracachi America, Inc., dated as of
July 13, 1995 - incorporated by reference to Exhibit B-80 to GPU, Inc.'s
Annual Report on Form U5S for the year 1995, File No. 30-126.
B-89 By-Laws of Incorporation of EI Services Colombia, Ltda. (Public Deed No.
2798), dated as of August 11, 1995 - incorporated by reference to
Exhibit B-81 to GPU, Inc.'s Annual Report on Form U5S for the year 1995,
File No. 30-126.
B-90 Amendment to the By-Laws of Incorporation of EI Services Colombia, Ltda.
dated as of August 9, 1996 to change the name of the company to GPU
International Latin America, Ltda. (subsequently renamed GPUI Colombia,
Ltda.) - incorporated by reference to Exhibit B-88 to GPU, Inc.'s Annual
Report on Form U5S for the year 1996, File No. 30-126.
75
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU Electric & GPU International Group
B-91 By-Laws of Incorporation of Empresa Guaracachi S.A., effective as of
July 13, 1995 - incorporated by reference to Exhibit B-82 to GPU, Inc.'s
Annual Report on Form U5S for the year 1995, File No. 30-126.
B-92 Certificate of Incorporation of EI Barranquilla, Inc., dated as of July
10, 1995 - incorporated by reference to Exhibit B-83 to GPU, Inc.'s
Annual Report on Form U5S for the year 1995, File No. 30-126.
B-93 By-Laws of Incorporation of Termobarranquilla S.A. (Public Deed No.
9994), dated as of October 14, 1994 - incorporated by reference to
Exhibit B-84 to GPU, Inc.'s Annual Report on Form U5S for the year 1995,
File No. 30-126.
B-94 Certificate of Incorporation of Barranquilla Lease Holding, Inc., dated
as of August 7, 1995 - incorporated by reference to Exhibit B-85 to GPU,
Inc.'s Annual Report on Form U5S for the year 1995, File No. 30-126.
B-95 Certificate of Incorporation of Los Amigos Leasing Company, Ltd., dated
as of August 18, 1995 - incorporated by reference to Exhibit B-86 to
GPU, Inc.'s Annual Report on Form U5S for the year 1995, File No.
30-126.
B-96 Certificate of Incorporation of International Power Advisors, Inc.,
dated as of August 14, 1995 - incorporated by reference to Exhibit B-87
to GPU, Inc.'s Annual Report on Form U5S for the year 1995, File No.
30-126.
B-97 Certificate of Incorporation of Colombian Installations, Inc., dated as
of September 8, 1995 - incorporated by reference to Exhibit B-88 to GPU,
Inc.'s Annual Report on Form U5S for the year 1995, File No. 30-126.
B-98 Certificate of Amendment of Certificate of Incorporation of Colombian
Installations, Inc., dated as of August 26, 1996 to change the name of
the company to GPU Power Philippines, Inc. - incorporated by reference
to Exhibit B-96 to GPU, Inc.'s Annual Report on Form U5S for the year
1996, File No. 30-126.
B-99 Certificate of Incorporation of EI Energy, Inc., dated as of October 18,
1995 - incorporated by reference to Exhibit B-89 to GPU, Inc.'s Annual
Report on Form U5S for the year 1995, File No. 30-126.
B-100 Certificate of Amendment of Certificate of Incorporation of EI Energy,
Inc., dated as of August 1, 1996 to change the name of the company to
GPU Electric, Inc. - incorporated by reference to Exhibit B-98 to GPU,
Inc.'s Annual Report on Form U5S for the year 1996, File No. 30-126.
B-101 Certificate of Incorporation of Victoria Electric, Inc., dated as of
October 18, 1995 - incorporated by reference to Exhibit B-90 to GPU,
Inc.'s Annual Report on Form U5S for the year 1995, File No. 30-126.
76
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU Electric & GPU International Group
B-102 Certificate of Incorporation of EI Services, Inc., dated as of October
7, 1993 - incorporated by reference to Exhibit B-91 to GPU, Inc.'s
Annual Report on Form U5S for the year 1995, File No. 30-126.
B-103 Certificate of Amendment to Certificate of Incorporation of EI Services,
Inc., dated as of August 7, 1995 - incorporated by reference to Exhibit
B-92 to GPU, Inc.'s Annual Report on Form U5S for the year 1995, File
No. 30-126.
B-104 Certificate of Incorporation of Victoria Electric Holdings, Inc., dated
as of June 17, 1996 - incorporated by reference to Exhibit B-102 to GPU,
Inc.'s Annual Report on Form U5S for the year 1996, File No. 30-126.
B-105 Certificate of Incorporation of EI UK Holdings, Inc., dated as of April
30, 1996 - incorporated by reference to Exhibit B-103 to GPU, Inc.'s
Annual Report on Form U5S for the year 1996, File No. 30-126.
B-106 Memorandum and Articles of Association of Avon Energy Partners Holdings,
dated as of May 2, 1996 - incorporated by reference to Exhibit B-104 to
GPU, Inc.'s Annual Report on Form U5S for the year 1996, File No.
30-126.
B-107 Memorandum and Articles of Association of Avon Energy Partners plc,
dated as of April 29, 1996 - incorporated by reference to Exhibit B-105
to GPU, Inc.'s Annual Report on Form U5S for the year 1996, File No.
30-126.
B-108 Memorandum of Association of Midlands Electricity plc, dated as of March
9, 1989 - incorporated by reference to Exhibit B-106 to GPU, Inc.'s
Annual Report on Form U5S for the year 1996, File No. 30-126.
B-109 Articles of Association of Midlands Electricity plc, adopted on December
13, 1996 - incorporated by reference to Exhibit B-107 to GPU, Inc.'s
Annual Report on Form U5S for the year 1996, File No. 30-126.
B-110 Certificate of Filing of Amended Articles of Incorporation of Magellan
Utilities Development Corporation, adopted on March 14, 1994-
incorporated by reference to Exhibit B-108 to GPU, Inc.'s Annual Report
on Form U5S for the year 1996, File No. 30-126.
B-111 Certificate of Incorporation of GPUI Lake Holdings, Inc., dated December
30, 1996 - incorporated by reference to Exhibit B-109 to GPU, Inc.'s
Annual Report on Form U5S for the year 1996, File No. 30-126.
B-112 Amended By-Laws of Energy Initiative, Inc. (subsequently renamed GPU
International, Inc.), dated as of May 14, 1993 - incorporated by
reference to Exhibit B-27 to GPU, Inc.'s Annual Report on Form U5S for
the year 1993, File No. 30-126.
B-113 Amended By-Laws of Elmwood Energy Corporation, adopted as of May 14,
1992 - incorporated by reference to Exhibit B-26 to GPU, Inc.'s Annual
Report on Form U5S for the year 1992, File No. 30-126.
77
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU Electric & GPU International Group
B-114 Amended By-Laws of Armstrong Energy Corporation, adopted as of May 14,
1992 - incorporated by reference to Exhibit B-33 to GPU, Inc.'s Annual
Report on Form U5S for the year 1992, File No. 30-126.
B-115 Amended By-Laws of Geddes Cogeneration Corporation, adopted as of May
14, 1992 - incorporated by reference to Exhibit B-34 to GPU, Inc.'s
Annual Report on Form U5S for the year 1992, File No. 30-126.
B-116 By-Laws of North Canadian Power, Inc. (subsequently renamed NCP Energy,
Inc.), adopted as of December 27, 1989 - incorporated by reference to
Exhibit B-70 to GPU, Inc.'s Annual Report on Form U5S for the year 1994,
File No. 30-126.
B-117 By-Laws of NCP Lake Power, Inc., adopted as of May 23, 1991 -
incorporated by reference to Exhibit B-71 to GPU, Inc.'s Annual Report
on Form U5S for the year 1994, File No. 30-126.
B-118 By-Laws of NCP Gem, Inc., adopted as of May 23, 1991 - incorporated by
reference to Exhibit B-72 to GPU, Inc.'s Annual Report on Form U5S for
the year 1994, File No. 30-126.
B-119 By-Laws of Umatilla Groves, Inc., adopted as of June 18, 1992 -
incorporated by reference to Exhibit B-73 to GPU, Inc.'s Annual Report
on Form U5S for the year 1994, File No. 30-126.
B-120 By-Laws of NCP Dade Power, Inc., adopted as of May 23, 1991 -
incorporated by reference to Exhibit B-74 to GPU, Inc.'s Annual Report
on Form U5S for the year 1994, File No. 30-126.
B-121 By-Laws of NCP Pasco, Inc., adopted as of May 23, 1991 - incorporated by
reference to Exhibit B-75 to GPU, Inc.'s Annual Report on Form U5S for
the year 1994, File No. 30-126.
B-122 By-Laws of Commerce Cogeneration Corporation, as amended through October
3, 1992 (formerly known as ADA Management Corporation) - subsequently
renamed NCP ADA Power, Inc. - incorporated by reference to Exhibit B-76
to GPU, Inc.'s Annual Report on Form U5S for the year 1994, File No.
30-126.
B-123 By-Laws of NCP Brooklyn Power, Inc., adopted as of July 10, 1993 -
incorporated by reference to Exhibit B-77 to GPU, Inc.'s Annual Report
on Form U5S for the year 1994, File No. 30-126.
B-124 By-Laws of Trigen Power Company (successively renamed ADA Power Company
and NCP Commerce Power, Inc.), adopted as of December 30, 1988 -
incorporated by reference to Exhibit B-78 to GPU, Inc.'s Annual Report
on Form U5S for the year 1994, File No. 30-126.
B-125 By-Laws of NCP Houston Power, Inc., adopted as of December 3, 1993 -
incorporated by reference to Exhibit B-79 to GPU, Inc.'s Annual Report
on Form U5S for the year 1994, File No. 30-126.
78
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU Electric & GPU International Group
B-126 By-Laws of NCP Perry, Inc., December 3, 1993 - incorporated by reference
to Exhibit B-80 to GPU, Inc.'s Annual Report on Form U5S for the year
1994, File No. 30-126.
B-127 By-Laws of NCP New York, Inc., adopted as of July 10, 1993 -
incorporated by reference to Exhibit B-81 to GPU, Inc.'s Annual Report
on Form U5S for the year 1994, File No. 30-126.
B-128 By-Laws of EI Selkirk, Inc., adopted as of November 1, 1994 -
incorporated by reference to Exhibit B-82 to GPU, Inc.'s Annual Report
on Form U5S for the year 1994, File No. 30-126.
B-129 By-Laws of EI Cayman (subsequently renamed EI International), dated as
of June 16, 1993 - incorporated by reference to Exhibit B-87 to GPU,
Inc.'s Annual Report on Form U5S for the year 1994, File No. 30-126.
B-130 By-Laws of EI Fuels Corporation, dated as of May 14, 1993 - incorporated
by reference to Exhibit B-37 to GPU, Inc.'s Annual Report on Form U5S
for the year 1993, File No. 30-126.
B-131 By-Laws of EI Power, Inc. (subsequently renamed GPU Power, Inc.), dated
as of May 2, 1994 - incorporated by reference to Exhibit B-89 to GPU,
Inc.'s Annual Report on Form U5S for the year 1994, File No. 30-126.
B-132 Amended By-Laws of Hanover Energy Corporation (formerly Bermuda Hundred
Energy, Inc.), dated as of March 16, 1993 - incorporated by reference to
Exhibit B-32 to GPU, Inc.'s Annual Report on Form U5S for the year 1992,
File No. 30-126.
B-133 By-Laws of EI Power (China) II, Inc., adopted as of September 22, 1994 -
incorporated by reference to Exhibit B-93 to GPU, Inc.'s Annual Report
on Form U5S for the year 1994, File No. 30-126.
B-134 By-Laws of EI Power (China) III, Inc., adopted as of September 22, 1994
- incorporated by reference to Exhibit B-94 to GPU, Inc.'s Annual Report
on Form U5S for the year 1994, File No. 30-126.
B-135 By-Laws of Austin Cogeneration Corporation, adopted as of January 27,
1995 - incorporated by reference to Exhibit B-123 to GPU, Inc.'s Annual
Report on Form U5S for the year 1995, File No. 30-126.
B-136 By-Laws of Guaracachi America, Inc., adopted as of July 13, 1995 -
incorporated by reference to Exhibit B-124 to GPU, Inc.'s Annual Report
on Form U5S for the year 1995, File No. 30-126.
B-137 By-Laws of EI Barranquilla, Inc., adopted as of December 29, 1995 -
incorporated by reference to Exhibit B-125 to GPU, Inc.'s Annual Report
on Form U5S for the year 1995, File No. 30-126.
79
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU Electric & GPU International Group
B-138 By-Laws of Barranquilla Lease Holding, Inc., adopted as of December 29,
1995 - incorporated by reference to Exhibit B-126 to GPU, Inc.'s Annual
Report on Form U5S for the year 1995, File No. 30-126.
B-139 By-Laws of Los Amigos Leasing Company, Ltd., dated as of August 18, 1995
- incorporated by reference to Exhibit B-127 to GPU, Inc.'s Annual
Report on Form U5S for the year 1995, File No. 30-126.
B-140 By-Laws of International Power Advisors, Inc., adopted as of August 16,
1995 - incorporated by reference to Exhibit B-128 to GPU, Inc.'s Annual
Report on Form U5S for the year 1995, File No. 30-126.
B-141 By-Laws of Colombian Installations, Inc. (subsequently renamed GPU Power
Philippines, Inc.), adopted as of September 9, 1995 - incorporated by
reference to Exhibit B-129 to GPU, Inc.'s Annual Report on Form U5S for
the year 1995, File No. 30-126.
B-142 By-Laws of EI Energy, Inc. (subsequently renamed GPU Electric, Inc.),
dated as of October 20, 1995 - incorporated by reference to Exhibit
B-130 to GPU, Inc.'s Annual Report on Form U5S for the year 1995, File
No. 30-126.
B-143 By-Laws of Victoria Electric, Inc., adopted as of October 20, 1995 -
incorporated by reference to Exhibit B-131 to GPU, Inc.'s Annual Report
on Form U5S for the year 1995, File No. 30-126.
B-144 By-Laws of Victoria Electric Holdings, Inc., adopted as of June 17, 1996
- incorporated by reference to Exhibit B-149 to GPU Inc.'s Annual Report
on Form U5S for the year 1996, File No. 30-126.
B-145 By-Laws of EI UK Holdings, Inc., adopted as of April 30, 1996 -
incorporated by reference to Exhibit B-150 to GPU Inc.'s Annual Report
on Form U5S for the year 1996, File No. 30-126.
B-146 Certificate of Filing of Amended By-Laws of Magellan Utilities
Development Corporation adopted on September 29, 1994- incorporated by
reference to Exhibit B-151 to GPU, Inc.'s Annual Report on Form U5S for
the year 1996, File No. 30-126.
B-147 By-Laws of GPUI Lake Holdings, Inc., adopted as of December 30, 1996 -
incorporated by reference to Exhibit B-152 to GPU, Inc.'s Annual Report
on Form U5S for the year 1996, File No. 30-126.
B-148 Memorandum of Association of 2322120 Nova Scotia Limited, dated as of
December 22, 1993 - incorporated by reference to Exhibit B-35 to GPU,
Inc.'s Annual Report on Form U5S for the year 1994, File No. 30-126.
80
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU Electric & GPU International Group
B-149 Certificate of Amendment of the Memorandum of Association of 2322120
Nova Scotia Limited, dated as of February 17, 1994 to change the name of
the company to EI Services Canada Limited - incorporated by reference to
Exhibit B-36 to GPU, Inc.'s Annual Report on Form U5S for the year 1994,
File No. 30-126.
B-150 Memorandum of Association of 2322133 Nova Scotia Limited, dated as of
December 22, 1993 - incorporated by reference to Exhibit B-31 to GPU,
Inc.'s Annual Report on Form U5S for the year 1994, File No. 30-126.
B-151 Certificate of Amendment of the Memorandum of Association of 2322133
Nova Scotia Limited, dated as of February 17, 1994 to change the name of
the company to EI Canada Holding Limited - incorporated by reference to
Exhibit B-32 to GPU, Inc.'s Annual Report on Form U5S for the year 1994,
File No. 30-126.
B-152 Memorandum of Association of EI Cayman (subsequently renamed EI
International), dated as of June 16, 1993 - incorporated by reference to
Exhibit B-39 to GPU, Inc.'s Annual Report on Form U5S for the year 1994,
File No. 30-126.
B-153 Memorandum of Association of EI Australia Services Pty Ltd.,
(subsequently renamed GPU International Australia Pty Ltd.), effective
as of October 26, 1995 - incorporated by reference to Exhibit B-142 to
GPU, Inc.'s Annual Report on Form U5S for the year 1995, File No.
30-126.
B-154 Articles of Association of 2322133 Nova Scotia Limited (subsequently
renamed EI Canada Holding Limited), adopted as of December 22, 1993 -
incorporated by reference to Exhibit B-83 to GPU, Inc.'s Annual Report
on Form U5S for the year 1994, File No. 30-126.
B-155 Articles of Association of 2322120 Nova Scotia Limited (subsequently
renamed EI Services Canada Limited), adopted as of December 22, 1993 -
incorporated by reference to Exhibit B-85 to GPU, Inc.'s Annual Report
on Form U5S for the year 1994, File No. 30-126.
B-156 Articles of Association of EI Australia Services Pty Ltd., adopted as of
October 26, 1995 - incorporated by reference to Exhibit B-148 to GPU,
Inc.'s Annual Report on Form U5S for the year 1995, File No. 30-126.
B-157 Agreement of Limited Partnership of Lake Cogen, Ltd., dated as of July
24, 1992 - incorporated by reference to Exhibit B-3(a), Application on
Form U-1, File No. 70-8369.
B-158 First Amendment to Limited Partnership Agreement of Lake Cogen, Ltd.,
dated as of June 13, 1994 - incorporated by reference to Exhibit B-3(a),
Certificate Pursuant to Rule 24, File No. 70-8369.
81
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU Electric & GPU International Group
B-159 Agreement of Limited Partnership of Lake Investment, L.P., dated as of
July 23, 1992 - incorporated by reference to Exhibit B-112 to GPU,
Inc.'s Annual Report on Form U5S for the year 1994, File No. 30-126.
B-160 Amended and Restated Limited Partnership Agreement of Onondaga
Cogeneration Limited Partnership, dated as of June 10, 1992 -
incorporated by reference to Exhibit A-1(a), Certificate Pursuant to
Rule 24, File No. 70-7942.
B-161 Limited Partnership Agreement of Pasco Cogen, Ltd., as amended through
July 15, 1993 - incorporated by reference to Exhibit B-4(a)(i)-(iv),
Application on Form U-1, File No. 70-8369.
B-162 Fourth Amendment to Limited Partnership Agreement of Pasco Cogen, Ltd.,
dated as of June 13, 1994 - incorporated by reference to Exhibit B-4(a),
Certificate Pursuant to Rule 24, File No. 70-8369.
B-163 Agreement of Limited Partnership of Dade Investment, L.P., dated as of
August 28, 1991 - incorporated by reference to Exhibit B-116 to GPU,
Inc.'s Annual Report on Form U5S for the year 1994, File No. 30-126.
B-164 Amended and Restated Limited Partnership Agreement of Prime Energy
Limited Partnership, dated as of August 7, 1987 - incorporated by
reference to Exhibit A-1, Application on Form U-1, File No. 70-7647.
B-165 Amendment to By-Laws of Incorporation of Termobarranquilla S.A. (Public
Deed No. 1198), dated as of February 24, 1995 - incorporated by
reference to Exhibit B-160 to GPU, Inc.'s Annual Report on Form U5S for
the year 1995, File No. 30-126.
B-166 Amendment to By-Laws of Incorporation of Termobarranquilla S.A. (Public
Deed No. 6455), dated as of October 4, 1995 - incorporated by reference
to Exhibit B-161 to GPU, Inc.'s Annual Report on Form U5S for the year
1995, File No. 30-126.
B-167 Amendment to By-Laws of Incorporation of Termobarranquilla S.A. (Public
Deed No. 2093), dated as of April 6, 1995 - incorporated by reference to
Exhibit B-162 to GPU, Inc.'s Annual Report on Form U5S for the year
1995, File No. 30-126.
B-168 Amendment to By-Laws of Incorporation of Termobarranquilla S.A. (Public
Deed No. 5777), dated as of September 5, 1995 - incorporated by
reference to Exhibit B-163 to GPU, Inc.'s Annual Report on Form U5S for
the year 1995, File No. 30-126.
B-169 Certificate of Amendment of Articles of Association of EI Cayman, dated
as of July 10, 1995 to change the name of the company to EI
International - incorporated by reference to Exhibit B-164 to GPU,
Inc.'s Annual Report on Form U5S for the year 1995, File No. 30-126.
82
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU Electric & GPU International Group
B-170 Limited Partnership Agreement of Mid-Georgia Cogen, L.P., dated as of
April 15, 1996 - incorporated by reference to Exhibit B-186 to GPU,
Inc.'s Annual Report on Form U5S for the year 1996, File No. 30-126.
B-171 Memorandum and Articles of Association of Australian Transmission
Corporation Pty Ltd., dated as of September 30, 1997 - incorporated by
reference to Exhibit B-189 to GPU, Inc.'s Annual Report on Form U5S for
the year 1997, File No. 30-126.
B-172 Certificate of Registration and Change of Name of Australian
Transmission Corporation Pty Ltd. to GPU PowerNet Pty Ltd., effective
October 30, 1997- incorporated by reference to Exhibit B-190 to GPU
Inc.'s Annual Report on Form U5S for the year 1997, File No. 30-126.
B-173 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. - incorporated by reference to Exhibit
B-191 to GPU, Inc.'s Annual Report on Form U5S for the year 1997, File
No.30-126.
B-174 Certificate of Incorporation of GPU Australia Holdings, Inc. dated as of
September 29, 1997 - incorporated by reference to Exhibit B-192 to GPU,
Inc.'s Annual Report on Form U5S for the year 1997, File No. 30-126.
B-175 By-Laws of GPU Australia Holdings, Inc., dated as of September 29, 1997
- incorporated by reference to Exhibit B-193 to GPU, Inc.'s Annual
Report on Form U5S for the year 1997, File No. 30-126.
B-176 Certificate of Incorporation of Austran Holdings, Inc., dated as of
September 29, 1997 - incorporated by reference to Exhibit B-194 to GPU,
Inc.'s Annual Report on Form U5S for the year 1997, File No. 30-126.
B-177 Amended and Restated Certificate of Incorporation of Austran Holdings,
Inc., dated as of October 9, 1997 - incorporated by reference to Exhibit
B-195 to GPU, Inc.'s Annual Report on Form U5S for the year 1997, File
No. 30-126.
B-178 By-Laws of Austran Holdings, Inc. adopted as of September 29, 1997 -
incorporated by reference to Exhibit B-196 to GPU, Inc.'s Annual Report
on Form U5S for the year 1997, File No. 30-126.
B-179 Certificate of Incorporation of GPU Power Ireland, Inc., dated October
14, 1997 - incorporated by reference to Exhibit B-199 to GPU, Inc.'s
Annual Report on Form U5S for the year 1997, File No. 30-126.
B-180 By-Laws of GPU Power Ireland, Inc. adopted as of October 14, 1997 -
incorporated by reference to Exhibit B-200 to GPU, Inc.'s Annual Report
on Form U5S for the year 1997, File No. 30-126.
83
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU Electric & GPU International Group
B-181 Certificate of Registration of Austran Investments Pty Ltd. dated as of
October 15, 1997 - incorporated by reference to Exhibit B-201 to GPU,
Inc.'s Annual Report on Form U5S for the year 1997, File No. 30-126.
B-182 Memorandum and Articles of Association of Austran Investments Pty Ltd.
dated as of October 15, 1997 - incorporated by reference to Exhibit
B-202 to GPU, Inc.'s Annual Report on Form U5S for the year 1997, File
No. 30-126.
B-183 Certificate of Registration of GPU PowerNet Investments Pty Ltd. dated
as of December 9, 1997 - incorporated by reference to Exhibit B-203 to
GPU, Inc.'s Annual Report on Form U5S for the year 1997, File No.
30-126.
B-184 Memorandum and Articles of Association of GPU PowerNet Investments Pty
Ltd. dated as of December 8, 1997 - incorporated by reference to Exhibit
B-204 to GPU, Inc.'s Annual Report on Form U5S for the year 1997, File
No. 30-126.
B-185 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 - incorporated by reference to Exhibit
B-205 to GPU, Inc.'s Annual Report on Form U5S for the year 1997, File
No. 30-126.
B-186 Certificate of Incorporation of GPU Capital,Inc., dated October 8, 1998
- incorporated by reference to Exhibit B-198 to GPU, Inc.'s Annual
Report on Form U5S for the year 1999, File No. 30-126.
B-187 By-Laws of GPU Capital, Inc. adopted as of October 8, 1998 -
incorporated by reference to Exhibit B-199 to GPU, Inc.'s Annual Report
on Form U5S for the year 1999, File No. 30-126.
B-188 Articles of Association of GPU do Brasil Ltda., dated March 10, 1998 -
incorporated by reference to Exhibit B-200 to GPU, Inc.'s Annual Report
on Form U5S for the year 1999, File No. 30-126.
B-189 By-Laws of GPU Sao Paulo S.A. adopted as of March 10, 1998 -
incorporated by reference to Exhibit B-201 to GPU, Inc.'s Annual Report
on Form U5S for the year 1999, File No. 30-126.
B-190 Memorandum and Articles of Association of GPU GasNet Pty Ltd. dated as
of June 16, 1998 - incorporated by reference to Exhibit B-202 to GPU,
Inc.'s Annual Report on Form U5S for the year 1999, File No. 30-126.
B-191 Memorandum and Articles of Association of GPU GasNet Trading Pty Ltd.
dated as of June 16, 1998 - incorporated by reference to Exhibit B-203
to GPU, Inc.'s Annual Report on Form U5S for the year 1999, File No.
30-126.
84
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU Electric & GPU International Group
B-192 Certificate of Incorporation of Geddes II Corp., dated June 24, 1998 -
incorporated by reference to Exhibit B-204 to GPU, Inc.'s Annual Report
on Form U5S for the year 1999, File No. 30-126.
B-193 By-Laws of Geddes II Corp., adopted as of June 24, 1998 - incorporated
by reference to Exhibit B-205 to GPU, Inc.'s Annual Report on Form U5S
for the year 1999, File No. 30-126.
B-194 Articles of Association of Midlands Power International Limited, dated
April 3, 1995 - incorporated by reference to Exhibit B-206 to GPU,
Inc.'s Annual Report on Form U5S for the year 1999, File No. 30-126.
B-195 Certificate of Incorporation of GPU Brasil, Inc., dated February 25,
1998 - incorporated by reference to Exhibit B-207 to GPU, Inc.'s Annual
Report on Form U5S for the year 1999, File No. 30-126.
B-196 By-Laws of GPU Brasil, Inc., adopted as of February 25, 1998 -
incorporated by reference to Exhibit B-208 to GPU, Inc.'s Annual Report
on Form U5S for the year 1999, File No. 30-126.
B-197 Certificate of Incorporation of GPU International Asia, Inc., dated
January 9, 1997 - incorporated by reference to Exhibit B-209 to GPU,
Inc.'s Annual Report on Form U5S for the year 1999, File No. 30-126.
B-198 By-Laws of GPU International Asia, Inc., adopted as of January 10, 1997
- incorporated by reference to Exhibit B-210 to GPU, Inc.'s Annual
Report on Form U5S for the year 1999, File No. 30-126..
B-199 Certificate of Incorporation of GPU Argentina Holdings, Inc., dated
December 18, 1998 - incorporated by reference to Exhibit B-211 to GPU,
Inc.'s Annual Report on Form U5S for the year 1999, File No. 30-126.
B-200 By-Laws of GPU Argentina Holdings, Inc., adopted as of December 18, 1998
- incorporated by reference to Exhibit B-212 to GPU, Inc.'s Annual
Report on Form U5S for the year 1999, File No. 30-126.
B-201 Certificate of Incorporation of GPU Solar, Inc., dated November 5, 1997
- incorporated by reference to Exhibit B-213 to GPU, Inc.'s Annual
Report on Form U5S for the year 1999, File No. 30-126.
B-202 By-Laws of GPU Solar, Inc., adopted as of November 5, 1997 -
incorporated by reference to Exhibit B-214 to GPU, Inc.'s Annual Report
on Form U5S for the year 1999, File No. 30-126.
B-203 Certificate of Merger of GPU Solar, L.L.C. and GPU Solar, Inc., dated
January 7, 1997 - incorporated by reference to Exhibit B-215 to GPU,
Inc.'s Annual Report on Form U5S for the year 1999, File No. 30-126.
B-204 Association of Notaries of Empresa Distribuidora Electrica Regional, S.A.
85
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU Electric & GPU International Group
B-205 Articles of Association of Avon Energy Partners plc, adopted as of
January 19, 2000.
B-206 Articles of Association of Avon Energy Partners Holdings, adopted as of
January 19, 2000.
B-207 Articles of Association of GPU Argentina Services S.R.L., dated January
15, 1999.
B-208 By-Laws of VicGas Holdings, Inc.
B-209 Certificate of Incorporation of VicGas Holdings, Inc.
B-210 Articles of Association of Midlands Electricity plc, adopted as of
January 19, 2000.
B-211 Certificate of Registration on Change of Name of Transmission Pipelines
Australia (Assets) Pty Limited, dated November 3, 1997.
B-212 Constitution of Transmission Pipelines Australia (Assets) Pty Limited
dated, June 1999.
B-213 Certificate of Incorporation of GPU Generation Services - Pasco, Inc.,
dated April 2, 1999.
B-214 By-Laws of GPU Generation Services - Pasco, Inc.
B-215 Certificate of Incorporation of GPU Generation Services - Lake, Inc.,
dated April 2, 1999.
B-216 By-Laws of GPU Generation Services - Lake, Inc.
GPU, GPUS & GPUN
C-1 Credit Agreement between GPUS and First National Bank of Chicago, dated
as of March 27, 1996 - incorporated by reference to Exhibit B-2,
Certificate Pursuant to Rule 24, File No. 70-8793.
C-2 GPU, Inc. Restricted Stock Plan for Outside Directors dated June 4, 1998
- incorporated by reference to Exhibit 10-O to GPU, Inc.'s Annual Report
on Form 10-K for the year 1998, File No. 1-6047.
C-3 Performance Units Agreement Under the 1990 Stock Plan for Employees of
GPU and Subsidiaries - 1998 Agreement - incorporated by reference to
Exhibit 10-CC to GPU, Inc.'s Annual Report on Form 10K for the year
1998, File No. 1-6047.
C-4 Incentive Compensation Plan for Elected Officers of GPU Service, Inc.,
as amended and restated June 4, 1998 - incorporated by reference to
Exhibit C-5 to GPU, Inc.'s Annual Report on Form U5S for the year 1999,
File No. 30-126.
C-5 Incentive Compensation Plan for Elected Officers of GPU Nuclear, Inc.,
dated as of February 6, 1997 - incorporated by reference to Exhibit C-6
to GPU, Inc.'s Annual Report on Form U5S for the year 1996, File No.
30-126.
86
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU, GPUS & GPUN
C-6 Employee Incentive Compensation Plan of GPU Service, Inc., dated as of
December 1, 1998 - incorporated by reference to Exhibit C-8 to GPU,
Inc.'s Annual Report on Form U5S for the year 1999, File No. 30-126.
C-7 Employee Incentive Compensation Plan of GPU Nuclear Inc., dated as of
April 1, 1995 - incorporated by reference to Exhibit C-8 to GPU Inc.'s
Annual Report on Form U5S for the year 1995, File No. 30-126.
C-8 GPU Service, Inc. Supplemental and Excess Benefits Plan, as amended July
1, 1999.
C-9 GPU Nuclear, Inc. Supplemental and Excess Benefits Plan, as amended June
5, 1997 - incorporated by reference to Exhibit C-11 to GPU, Inc.'s
Annual Report on Form U5S for the year 1997, File No. 30-126.
C-10 Deferred Remuneration Plan for Outside Directors of GPU, Inc. as amended
October 8, 1997 - incorporated by reference to Exhibit 10-S to GPU,
Inc.'s Annual Report on Form 10-K for the year 1997, File No. 1-6047.
C-11 Deferred Remuneration Plan for Outside Directors of GPU Nuclear Inc., as
amended June 5, 1997 - incorporated by reference to Exhibit C-14 to GPU,
Inc.'s Annual Report on Form U5S for the year 1997, File No. 30-126.
C-12 Retirement Plan for Outside Directors of GPU, Inc. dated June 5, 1997 -
incorporated by reference to Exhibit 10-R to GPU, Inc.'s Annual Report
on Form 10-K for the year 1997, File No. 1-6047.
C-13 GPU System Companies Deferred Compensation Plan dated June 5, 1997 -
incorporated by reference to Exhibit 10-A to GPU, Inc.'s Annual Report
on Form 10-K for the year 1997, File No. 1-6047.
C-14 Senior Executive Life Insurance Program, dated as of May 3, 1989 -
incorporated by reference to description contained on pages 13-14 of
GPU, Inc.'s 1992 definitive proxy statement, File No. 1-6047.
C-15 Supplemental Extraordinary Medical Expense Plan for Certain GPU System
Officers, as amended through February 28, 1992 - incorporated by
reference to Exhibit 10-M to GPU, Inc.'s Annual Report on Form 10-K for
the year 1992, File No. 1-6047.
C-16 Deferred Stock Unit Plan for Outside Directors of GPU, Inc., dated as of
July 1, 1997 - incorporated by reference to GPU, Inc.'s Annual Report on
Form U5S for the year 1997, File No. 30-126.
C-17 Form of 1998 Stock Option Agreement under the 1990 Stock Plan for
Employees of GPU, Inc. and Subsidiaries - incorporated by reference to
Exhibit 10-BB to GPU, Inc.'s Annual Report on Form 10-K for the year
1998, File No. 1-6047.
C-18 Severance Protection Agreement for Fred D. Hafer, dated November 5, 1998
- incorporated by reference to Exhibit C-24 to GPU, Inc.'s Annual Report
on Form U5S for the year 1999, File No. 30-126.
C-19 Severance Protection Agreement for Ira H. Jolles, dated November 5, 1998
- incorporated by reference to Exhibit C-25 to GPU, Inc.'s Annual Report
on Form U5S for the year 1999, File No. 30-126.
87
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU, GPUS & GPUN
C-20 Severance Protection Agreement for Thomas G. Broughton, dated November
5, 1998 - incorporated by reference to Exhibit C-26 to GPU, Inc.'s
Annual Report on Form U5S for the year 1999, File No. 30-126.
C-21 Severance Protection Agreement for Carole B. Snyder, dated November 30,
1998 - incorporated by reference to Exhibit C-27 to GPU, Inc.'s Annual
Report on Form U5S for the year 1999, File No. 30-126.
C-22 Severance Protection Agreement for Bruce L. Levy, dated December 16,
1998 - incorporated by reference to Exhibit C-28 to GPU, Inc.'s Annual
Report on Form U5S for the year 1999, File No. 30-126.
C-23 Severance Protection Agreement for Michael J. Chesser, dated
April 17, 2000.
C-24 Supplemental Pension Agreement for Michael J. Chesser, dated
April 17, 2000
C-25 Letter agreement dated August 7, 1997 relating to terms of employment
and pension benefits for I. H. Jolles - incorporated by reference to
Exhibit 10-O, 1997 Annual Report on Form 10-K, SEC File No. 1-6047.
C-26 Amended and Restated GPU System Companies Master Directors' Benefits
Protection Trust effective June 1, 1999 - incorporated by reference to
Exhibit 10-T of GPU, Inc.'s Annual Report on Form 10-K for the year
1999, File No. 1-6047.
C-27 Amended and Restated GPU System Companies Master Executives' Benefits
Protection Trust effective June 1, 1999 - incorporated by reference to
Exhibit 10-U of GPU, Inc.'s Annual Report on Form 10-K for the year
1999, File No. 1-6047.
C-28 GPU, Inc. 1990 Stock Plan for Employees of GPU, Inc. and Subsidiaries as
amended and restated to reflect amendments through June 3, 1999 -
incorporated by reference to Exhibit 10-V of GPU, Inc.'s Annual Report
on Form 10-K for the year 1999, File No. 1-6047.
C-29 Form of 1999 Stock Option Agreement under the 1990 Stock Plan for
Employees of GPU, Inc. and Subsidiaries - incorporated by reference to
Exhibit 10-W of GPU, Inc.'s Annual Report on Form 10-K for the year
1999, File No. 1-6047.
C-30 Form of 1999 Performance Units Agreement under the 1990 Stock Plan for
Employees of GPU, Inc. and Subsidiaries - incorporated by reference to
Exhibit 10-X of GPU, Inc.'s Annual Report on Form 10-K for the year
1999, File No. 1-6047.
C-31 Letter agreement dated February 23, 2000 relating to terms and
conditions of the supplemental pension for Robert L. Wise - incorporated
by reference to Exhibit 10-Y of GPU, Inc.'s Annual Report on Form 10-K
for the year 1999, File No. 1-6047.
88
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU, GPUS & GPUN
C-32 Severance Protection Agreement for Robert L. Wise, as amended and
restated, dated February 23, 2000 - incorporated by reference to Exhibit
10-EE of GPU, Inc.'s Annual Report on Form 10-K for the year 1999, File
No. 1-6047.
C-33 GPU Companies Supplemental Executive Retirement Plan, as adopted
effective July 1, 1999 - incorporated by reference to Exhibit 10-FF of
GPU, Inc.'s Annual Report on Form 10-K for the year 1999, File No.
1-6047.
C-34 Letter Agreement with Charles M. Brennan III and Byron D. Nelson, dated
December 21, 1999 - incorporated by reference to exhibit (c) (2) to GPU,
Inc.'s Schedule 14D-1 Tender Offer Statement, File No. 1-6047.
C-35 Forms of Estate Enhancement Program Agreements - incorporated by
reference to Exhibit 10-JJ of GPU, Inc.'s Annual Report on Form 10-K for
the year 1999, File No. 1-6047.
C-36 Agreement and Plan of Merger by and among GPU, Inc., MYR Group Inc. and
GPX Acquisition Corp. - Incorporated by reference to Exhibit (c) (1) to
GPU, Inc.'s. Schedule 14D-1 Tender Offer Statement, File No. 1-6047.
JCP&L
Instruments Defining the Rights of Security Holders, Including
Indentures
C-37 Indenture, dated as of March 1, 1946, with United States Trust Company
of New York, Successor Trustee, - incorporated by reference to JCP&L's
Instruments of Indebtedness No. 1 filed as part of Amendment No. 1 to
GPU, Inc.'s Annual Report on Form U5S for the year 1959, File Nos.
30-126 and 1-3292.
C-38 First Supplemental Indenture, dated as of December 1, 1948 -
incorporated by reference to JCP&L's Instruments of Indebtedness No. 2
filed as part of Amendment No. 1 to GPU, Inc.'s Annual Report on Form
U5S for the year 1959, File Nos. 30-126 and 1-3292.
C-39 Second Supplemental Indenture, dated as of April 1, 1953 - incorporated
by reference to JCP&L's Instruments of Indebtedness No. 3 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-40 Third Supplemental Indenture, dated as of June 1, 1954 - incorporated by
reference to JCP&L's Instruments of Indebtedness No. 4 filed as part of
Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
89
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-41 Fourth Supplemental Indenture, dated as of May 1, 1955 - incorporated by
reference to JCP&L's Instruments of Indebtedness No. 5 filed as part of
Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-42 Fifth Supplemental Indenture, dated as of August 1, 1956 - incorporated
by reference to JCP&L's Instruments of Indebtedness No. 6 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-43 Sixth Supplemental Indenture, dated as of July 1, 1957 - incorporated by
reference to JCP&L's Instruments of Indebtedness No. 7 filed as part of
Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-44 Seventh Supplemental Indenture, dated as of July 1, 1959 - incorporated
by reference to JCP&L's Instruments of Indebtedness No. 9 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-45 Eighth Supplemental Indenture, dated as of June 1, 1960 - incorporated
by reference to JCP&L's Instruments of Indebtedness No. 10 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-46 Ninth Supplemental Indenture, dated as of November 1, 1962 -
incorporated by reference to Exhibit 2-C, Registration No. 2-20732.
C-47 Tenth Supplemental Indenture, dated as of October 1, 1963 - incorporated
by reference to Exhibit 2-C, Registration No. 2-21645.
C-48 Eleventh Supplemental Indenture, dated as of October 1, 1964 -
incorporated by reference to Exhibit 5-A-3, Registration No. 2-59785.
C-49 Twelfth Supplemental Indenture, dated as of November 1, 1965 -
incorporated by reference to Exhibit 5-A-4, Registration No. 2-59785.
C-50 Thirteenth Supplemental Indenture, dated as of August 1, 1966 -
incorporated by reference to Exhibit 4-C, Registration No. 2-25124.
C-51 Fourteenth Supplemental Indenture, dated as of September 1, 1967 -
incorporated by reference to Exhibit 5-A-6, Registration No. 2-59785.
C-52 Fifteenth Supplemental Indenture, dated as of October 1, 1968 -
incorporated by reference to Exhibit 5-A-7, Registration No. 2-59785.
C-53 Sixteenth Supplemental Indenture, dated as of October 1, 1969 -
incorporated by reference to Exhibit 5-A-8, Registration No. 2-59785.
C-54 Seventeenth Supplemental Indenture, dated as of June 1, 1970 -
incorporated by reference to Exhibit 5-A-9, Registration No. 2-59785.
90
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-55 Eighteenth Supplemental Indenture, dated as of December 1, 1970 -
incorporated by reference to Exhibit 5-A-10, Registration No. 2-59785.
C-56 Nineteenth Supplemental Indenture, dated as of February 1, 1971 -
incorporated by reference to Exhibit 5-A-11, Registration No. 2-59785.
C-57 Twentieth Supplemental Indenture, dated as of November 1, 1971 -
incorporated by reference to Exhibit 5-A-12, Registration No. 2-59875.
C-58 Twenty-first Supplemental Indenture, dated as of August 1, 1972 -
incorporated by reference to Exhibit 5-A-13, Registration No. 2-59785.
C-59 Twenty-second Supplemental Indenture, dated as of August 1, 1973 -
incorporated by reference to Exhibit 5-A-14, Registration No. 2-59785.
C-60 Twenty-third Supplemental Indenture, dated as of October 1, 1973 -
incorporated by reference to Exhibit 5-A-15, Registration No. 2-59785.
C-61 Twenty-fourth Supplemental Indenture, dated as of December 1, 1973 -
incorporated by reference to Exhibit 5-A-16, Registration No. 2-59785.
C-62 Twenty-fifth Supplemental Indenture, dated as of November 1, 1974 -
incorporated by reference to Exhibit 5-A-17, Registration No. 2-59785.
C-63 Twenty-sixth Supplemental Indenture, dated as of March 1, 1975 -
incorporated by reference to Exhibit 5-A-18, Registration No. 2-59785.
C-64 Twenty-seventh Supplemental Indenture, dated as of July 1, 1975 -
incorporated by reference to Exhibit 5-A-19, Registration No. 2-59785.
C-65 Twenty-eighth Supplemental Indenture, dated as of October 1, 1975 -
incorporated by reference to Exhibit 5-A-20, Registration No. 2-59785.
C-66 Twenty-ninth Supplemental Indenture, dated as of February 1, 1976 -
incorporated by reference to Exhibit 5-A-21, Registration No. 2-59785.
C-67 Supplemental Indenture No. 29A, dated as of May 31, 1976 - incorporated
by reference to Exhibit 5-A-22, Registration No. 2-59785.
C-68 Thirtieth Supplemental Indenture, dated as of June 1, 1976 -
incorporated by reference to Exhibit 5-A-23, Registration No. 2-59785.
C-69 Thirty-first Supplemental Indenture, dated as of May 1, 1977 -
incorporated by reference to Exhibit 5-A-24, Registration No. 2-59785.
C-70 Thirty-second Supplemental Indenture, dated as of January 20, 1978 -
incorporated by reference to Exhibit 5-A-25, Registration No. 2-60438.
C-71 Thirty-third Supplemental Indenture, dated as of January 1, 1979 -
incorporated by reference to Exhibit A-20(b), Certificate Pursuant to
Rule 24, File No. 70-6242.
91
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-72 Thirty-fourth Supplemental Indenture, dated as of June l, 1979 -
incorporated by reference to Exhibit A-28, Certificate Pursuant to Rule
24, File No. 70-6290.
C-73 Thirty-sixth Supplemental Indenture, dated as of October 1, 1979 -
incorporated by reference to Exhibit A-30, Certificate Pursuant to Rule
24, File No. 70-6354.
C-74 Thirty-seventh Supplemental Indenture, dated as of September 1, 1984 -
incorporated by reference to Exhibit A-1(cc), Certificate Pursuant to
Rule 24, File No. 70-7001.
C-75 Thirty-eighth Supplemental Indenture, dated as of July 1, 1985 -
incorporated by reference to Exhibit A-1(dd), Certificate Pursuant to
Rule 24, File No. 70-7109.
C-76 Thirty-ninth Supplemental Indenture, dated as of April 1, 1988 -
incorporated by reference to Exhibit A-1(a), Certificate Pursuant to
Rule 24, File No. 70-7263.
C-77 Fortieth Supplemental Indenture, dated as of June 14, 1988 -
incorporated by reference to Exhibit A-1(ff), Certificate Pursuant to
Rule 24, File No. 70-7603.
C-78 Forty-first Supplemental Indenture, dated as of April 1, 1989 -
incorporated by reference to Exhibit A-1(gg), Certificate Pursuant to
Rule 24, File No. 70-7603.
C-79 Forty-second Supplemental Indenture, dated as of July 1, 1989 -
incorporated by reference to Exhibit A-1(hh), Certificate Pursuant to
Rule 24, File No. 70-7603.
C-80 Forty-third Supplemental Indenture, dated as of March 1, 1991
-incorporated by reference to Exhibit 4-A-35, Registration No. 33-45314.
C-81 Forty-fourth Supplemental Indenture, dated as of March 1, 1992 -
incorporated by reference to Exhibit 4-A-36, Registration No. 33-49405.
C-82 Forty-fifth Supplemental Indenture, dated as of October 1, 1992 -
incorporated by reference to Exhibit 4-A-37, Registration No. 33-49405.
C-83 Forty-sixth Supplemental Indenture, dated as of April 1, 1993 -
incorporated by reference to Exhibit C-15 to GPU, Inc.'s Annual Report
on Form U5S for the year 1992, File No. 30-126.
C-84 Forty-seventh Supplemental Indenture, dated as of April 10, 1993 -
incorporated by reference to Exhibit C-16 to GPU, Inc.'s Annual Report
on Form U5S for the year 1992, File No. 30-126.
92
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-85 Forty-eighth Supplemental Indenture, dated as of April 15, 1993 -
incorporated by reference to Exhibit C-17 to GPU, Inc.'s Annual Report
on Form U5S for the year 1992, File No. 30-126.
C-86 Forty-ninth Supplemental Indenture, dated as of October 1, 1993 -
incorporated by reference to Exhibit C-18 to GPU, Inc.'s Annual Report
on Form U5S for the year 1993, File No. 30-126.
C-87 Fiftieth Supplemental Indenture, dated as of August 1, 1994 -
incorporated by reference to Exhibit C-19 of GPU, Inc.'s Annual Report
on Form U5S for the year 1994, File No. 30-126.
C-88 Fifty-first Supplemental Indenture of JCP&L, dated August 15, 1996 -
incorporated by reference to Exhibit 4-A-43 of GPU, Inc.'s Annual Report
on Form 10-K for 1996, File No. 1-6047.
C-89 Subordinated Debenture Indenture, dated as of May 1, 1995 - incorporated
by reference to Exhibit A-8(a), Certificate Pursuant to Rule 24, File
No. 70-8495.
C-90 Fifty-second Supplemental Indenture of JCP&L dated July 1, 1999 -
incorporated by reference to Item 16, Exhibit 4-B-44 of Registration No.
333-88783.
C-91 Fifty-third Supplemental Indenture of JCP&L dated November 1, 1999 -
incorporated by reference to Exhibit 4-A-45 of JCP&L's Annual Report on
Form 10-K for the year 1999, File No. 1-3141.
C-92 Senior Note Indenture between JCP&L and United States Trust Company of
New York, dated July 1, 1999 - incorporated by reference to Exhibit 4-A
of Registration No. 333-78717.
Other
C-93 Incentive Compensation Plan for Elected Officers of JCP&L dated February
6, 1997 incorporated by reference to Exhibit C-74 to GPU, Inc.'s Annual
Report on Form U5S for the year 1996, File No. 30-126.
C-94 Employee Incentive Compensation Plan of JCP&L, dated as of April 1, 1995
- incorporated by reference to Exhibit 10-D to GPU, Inc.'s Annual Report
on Form 10-K for the year 1995, File No. 1-6047.
C-95 JCP&L Supplemental and Excess Benefits Plan dated June 5, 1997 -
incorporated by reference to Exhibit 10-K to JCP&L's Annual Report on
Form 10-K for the year 1997, File No. 1-3141.
C-96 Deferred Remuneration Plan for Outside Directors of JCP&L dated June 5,
1997 - incorporated by reference to Exhibit 10-J to JCP&L's Annual
Report on Form 10-K for the year 1997, File No. 1-3141.
93
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-97 Second Amended and Restated Nuclear Material Lease Agreement, dated as
of November 5, 1998, between Oyster Creek Fuel Corp. and JCP&L -
incorporated by reference to Exhibit 10-R, to JCP&L's Annual Report on
Form 10-K for the year 1998, File No. 1-3141.
C-98 Letter Agreement, dated as of November 5, 1998, from JCP&L relating to
Oyster Creek Nuclear Material Lease Agreement - incorporated by
reference to Exhibit 10-T, to JCP&L's Annual Report on Form 10-K for the
year 1998, File No. 1-3141.
C-99 Second Amended and Restated Trust Agreement, dated as of November 5,
1998, between United States Trust Company of New York, as Owner Trustee,
Lord Fuel Corp., as Trustor and Beneficiary, and JCP&L - incorporated by
reference to Exhibit 10-V, to JCP&L's Annual Report on Form 10-K for the
year 1998, File No. 1-3141.
C-100 Oyster Creek Nuclear Generating Station Purchase and Sale Agreement by
and among GPU Nuclear, Inc. and JCP&L, as sellers, and AmerGen Energy
Company, LLC, as buyer, dated as of October 15, 1999 - incorporated by
reference to Exhibit 10-GG of JCP&L's Annual Report on Form 10-K for the
year 1999, File No. 1-3141.
Met-Ed
Instruments Defining the Rights of Security Holders, Including
Indentures
C-101 Indenture, dated as of November 1, 1944, with United States Trust
Company of New York, Successor Trustee, - incorporated by reference to
Met-Ed's Instruments of Indebtedness No. 1 filed as part of Amendment
No. l to GPU, Inc.'s Annual Report on Form U5S for the year 1959, File
Nos. 30-126 and 1-3292.
C-102 Supplemental Indenture, dated as of February 1, 1947 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 2 filed as part of
Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-103 Supplemental Indenture, dated as of May 20, 1947 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 3 filed as part of
Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-104 Supplemental Indenture, dated as of September 1, 1947 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 4 filed as part of
Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
94
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
C-105 Supplemental Indenture, dated as of September 1, 1948 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 5 filed as part of
Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-106 Supplemental Indenture, dated as of October 4, 1949 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 6 filed as part of
Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-107 Supplemental Indenture, dated as of February 1, 1950 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 7 filed as part of
Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-108 Supplemental Indenture, dated as of July 19, 1950 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 8 filed as part of
Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-109 Supplemental Indenture, dated as of December 1, 1950 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 9 filed as part of
Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-110 Supplemental Indenture, dated as of March 1, 1952 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 10 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-111 Supplemental Indenture, dated as of May 1, 1953 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 11 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-112 Supplemental Indenture, dated as of July 1, 1954 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 12 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-113 Supplemental Indenture, dated as of October 1, 1954 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 13 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-114 Supplemental Indenture, dated as of June 1, 1957 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 14 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
95
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
C-115 Supplemental Indenture, dated as of May 1, 1960 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 16 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-116 Supplemental Indenture, dated as of December 1, 1962 - incorporated by
reference to Exhibit 2-E(1), Registration No. 2-59678.
C-117 Supplemental Indenture, dated as of March 20, 1964 - incorporated by
reference to Exhibit 2-E(2), Registration No. 2-59678.
C-118 Supplemental Indenture, dated as of July 1, 1965 - incorporated by
reference to Exhibit 2-E(3), Registration No. 2-59678.
C-119 Supplemental Indenture, dated as of June 1, 1966 - incorporated by
reference to Exhibit 2-B-4, Registration No. 2-24883.
C-120 Supplemental Indenture, dated as of March 22, 1968 - incorporated by
reference to Exhibit 4-C-5, Registration No. 2-29644.
C-121 Supplemental Indenture, dated as of September 1, 1968 - incorporated by
reference to Exhibit 2-E(6), Registration No. 2-59678.
C-122 Supplemental Indenture, dated as of August 1, 1969 - incorporated by
reference to Exhibit 2-E(7), Registration No. 2-59678.
C-123 Supplemental Indenture, dated as of November 1, 1971 - incorporated by
reference to Exhibit 2-E(8), Registration No. 2-59678.
C-124 Supplemental Indenture, dated as of May 1, 1972 - incorporated by
reference to Exhibit 2-E(9), Registration No. 2-59678.
C-125 Supplemental Indenture, dated as of December 1, 1973 - incorporated by
reference to Exhibit 2-E(10), Registration No. 2-59678.
C-126 Supplemental Indenture, dated as of October 30, 1974 - incorporated by
reference to Exhibit 2-E(11), Registration No. 2-59678.
C-127 Supplemental Indenture, dated as of October 31, 1974 - incorporated by
reference to Exhibit 2-E(12), Registration No. 2-59678.
C-128 Supplemental Indenture, dated as of March 20, 1975 - incorporated by
reference to Exhibit 2-E(13), Registration No. 2-59678.
C-129 Supplemental Indenture, dated as of September 25, 1975 - incorporated by
reference to Exhibit 2-E(15), Registration No. 2-59678.
C-130 Supplemental Indenture, dated as of January 12, 1976 - incorporated by
reference to Exhibit 2-E(16), Registration No. 2-59678.
96
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
C-131 Supplemental Indenture, dated as of March 1, 1976 - incorporated by
reference to Exhibit 2-E(17), Registration No. 2-59678.
C-132 Supplemental Indenture, dated as of September 28, 1977 - incorporated by
reference to Exhibit 2-E(18), Registration No. 2-62212.
C-133 Supplemental Indenture, dated as of January 1, 1978 - incorporated by
reference to
Exhibit 2-E(19), Registration No. 2-62212.
C-134 Supplemental Indenture, dated as of September 1, 1978 - incorporated by
reference to Exhibit 4-A(19), Registration No. 33-48937.
C-135 Supplemental Indenture, dated as of June 1, 1979 - incorporated by
reference to Exhibit 4-A(20), Registration No. 33-48937.
C-136 Supplemental Indenture, dated as of January l, 1980 - incorporated by
reference to Exhibit 4-A(21), Registration No. 33-48937.
C-137 Supplemental Indenture, dated as of September 1, 1981 - incorporated by
reference to Exhibit 4-A(22), Registration No. 33-48937.
C-138 Supplemental Indenture, dated as of September 10, 1981 - incorporated by
reference to Exhibit 4-A(23), Registration No. 33-48937.
C-139 Supplemental Indenture, dated as of December 1, 1982 - incorporated by
reference to Exhibit 4-A(24), Registration No. 33-48937.
C-140 Supplemental Indenture, dated as of September 1, 1983 - incorporated by
reference to Exhibit 4-A(25), Registration No. 33-48937.
C-141 Supplemental Indenture dated as of September 1, 1984 - incorporated by
reference to Exhibit 4-A(26), Registration No. 33-48937.
C-142 Supplemental Indenture, dated as of March 1, 1985 - incorporated by
reference to Exhibit 4-A(27), Registration No. 33-48937.
C-143 Supplemental Indenture, dated as of September l, 1985 - incorporated by
reference to Exhibit 4-A(28), Registration No. 33-48937.
C-144 Supplemental Indenture, dated as of June 1, 1988 - incorporated by
reference to Exhibit 4-A(29), Registration No. 33-48937.
C-145 Supplemental Indenture, dated as of April 1, 1990 - incorporated by
reference to Exhibit 4-A(30), Registration No. 33-48937.
C-146 Amendment, dated as of May 22, 1995, to Supplemental Indenture (dated
April 1, 1990) - incorporated by reference to Exhibit 4-A(31),
Registration No. 33-48937.
97
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
C-147 Supplemental Indenture, dated as of September 1, 1992 - incorporated by
reference to Exhibit 4-A(32)(a), Registration No. 33-48937.
C-148 Supplemental Indenture, dated as of December 1, 1993 - incorporated by
reference to Exhibit C-58 to GPU, Inc.'s Annual Report on Form U5S for
the year 1993, File No. 30-126.
C-149 Supplemental Indenture, dated as of July 15, 1995 - incorporated by
reference to Exhibit 4-B-35 to Met-Ed's Annual Report on Form 10-K for
the year 1995, File No. 1-446.
C-150 Supplemental Indenture, dated August 15, 1996 - incorporated by
reference to Exhibit 4-B-35 to Met-Ed's Annual Report on Form 10-K for
1996, File No. 1-446.
C-151 Supplemental Indenture, dated May 1, 1997 - incorporated by reference to
Exhibit 4-B-36 to Met-Ed's Annual Report on Form 10-K for 1997, File No.
1-4446.
C-152 Indenture between Met-Ed and United States Trust Company of New York
dated May 1, 1999 - incorporated by reference to Exhibit A-11(a),
Certificate Pursuant to Rule 24, File No. 70-9329.
C-153 Supplemental Indenture between Met-Ed and United States Trust Company of
New York dated July 1, 1999 - incorporated by reference to Exhibit
4-B-38 of Met-Ed's Annual Report on Form 10-K for the year 1999, File
No. 1-446.
C-154 Senior Note Indenture between Met-Ed and United States Trust Company of
New York, dated July 1, 1999.
Other
C-155 Incentive Compensation Plan for Elected Officers of Met-Ed dated
February 6, 1997 - incorporated by reference to Exhibit C-134 to GPU,
Inc.'s Annual Report on Form U5S for the year 1996, File NO. 30-126.
C-156 Employee Incentive Compensation Plan of Met-Ed, dated as of April 1,
1995 - incorporated by reference to Exhibit 10-E to GPU, Inc.'s Annual
Report on Form 10-K for the year 1995, File No. 1-6047.
C-157 Met-Ed Supplemental and Excess Benefits Plan dated June 5, 1997 -
incorporated by reference to Exhibit 10-L to Met-Ed's Annual Report on
Form 10-K for the year 1997, File No. 1-446.
98
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
Instruments Defining the Rights of Security Holders, Including
Indentures
C-158 Mortgage and Deed of Trust, dated as of January 1, 1942, with United
States Trust Company of New York, Successor Trustee, - incorporated by
reference to Penelec's Instruments of Indebtedness No. 1 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-159 Supplemental Indenture, dated as of March 7, 1942 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 2 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-160 Supplemental Indenture, dated as of April 28, 1943 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 3 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-161 Supplemental Indenture, dated as of August 20, 1943 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 4 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-162 Supplemental Indenture, dated as of August 30, 1943 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 5 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-163 Supplemental Indenture, dated as of August 31, 1943 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 6 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-164 Supplemental Indenture, dated as of April 26, 1944 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 7 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-165 Supplemental Indenture, dated as of April 19, 1945 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 8 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-166 Supplemental Indenture, dated as of October 25, 1945 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 9 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
99
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
C-167 Supplemental Indenture, dated as of June 1, 1946 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 10 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-168 Supplemental Indenture, dated as of November 1, 1949 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 11 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-169 Supplemental Indenture, dated as of October 1, 1951 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 12 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-170 Supplemental Indenture, dated as of August 1, 1952 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 13 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-171 Supplemental Indenture, dated as of June 1, 1953 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 14 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-172 Supplemental Indenture, dated as of March 1, 1954 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 15 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-173 Supplemental Indenture, dated as of April 30, 1956 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 16 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-174 Supplemental Indenture, dated as of May 1, 1956 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 17 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-175 Supplemental Indenture, dated as of March 1, 1958 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 18 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-176 Supplemental Indenture, dated as of August 1, 1959 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 19 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
100
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
C-177 Supplemental Indenture, dated as of May 1, 1960 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 20 filed as part
of Amendment No. 1 to GPU, Inc.'s Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-178 Supplemental Indenture, dated as of May 1, 1961 - incorporated by
reference to Exhibit 2-D(1), Registration No. 2-61502.
C-179 Supplemental Indenture, dated as of October 1, 1964 - incorporated by
reference to Exhibit 2-D(2), Registration No. 2-61502.
C-180 Supplemental Indenture, dated as of November 1, 1966 - incorporated by
reference to Exhibit 2-D(3), Registration No. 2-61502.
C-181 Supplemental Indenture, dated as of June 1, 1967 - incorporated by
reference to Exhibit 2-D(4), Registration No. 2-61502.
C-182 Supplemental Indenture, dated as of August 1, 1968 - incorporated by
reference to Exhibit 2-D(5), Registration No. 2-61502.
C-183 Supplemental Indenture, dated as of May 1, 1969 - incorporated by
reference to Exhibit 2-D(6), Registration No. 2-61502.
C-184 Supplemental Indenture, dated as of April 1, 1970 - incorporated by
reference to Exhibit 2-D(7), Registration No. 2-61502.
C-185 Supplemental Indenture, dated as of December 1, 1971 - incorporated by
reference to Exhibit 2-D(8), Registration No. 2-61502.
C-186 Supplemental Indenture, dated as of July 1, 1973 - incorporated by
reference to Exhibit 2-D(9), Registration No. 2-61502.
C-187 Supplemental Indenture, dated as of June 1, 1974 - incorporated by
reference to Exhibit 2-D(10), Registration No. 2-61502.
C-188 Supplemental Indenture, dated as of December 1, 1974 - incorporated by
reference to Exhibit 2-D(11), Registration No. 2-61502.
C-189 Supplemental Indenture, dated as of August 1, 1975 - incorporated by
reference to Exhibit 2-D(12), Registration No. 2-61502.
C-190 Supplemental Indenture, dated as of December 1, 1975 - incorporated by
reference to Exhibit 2-D(13), Registration No. 2-61502.
C-191 Supplemental Indenture, dated as of April 1, 1976 - incorporated by
reference to Exhibit 2-D(14), Registration No. 2-61502.
C-192 Supplemental Indenture, dated as of June 1, 1976 - incorporated by
reference to Exhibit 2-D(15), Registration No. 2-61502.
101
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
C-193 Supplemental Indenture, dated as of July 1, 1976 - incorporated by
reference to Exhibit 2-D(16), Registration No. 2-61502.
C-194 Supplemental Indenture, dated as of November 1, 1976 - incorporated by
reference to Exhibit 2-D(17), Registration No. 2-61502.
C-195 Supplemental Indenture, dated as of November 30, 1977 - incorporated by
reference to Exhibit 2-D(18), Registration No. 2-61502.
C-196 Supplemental Indenture, dated as of December 1, 1977 - incorporated by
reference to Exhibit 2-D(19), Registration No. 2-61502.
C-197 Supplemental Indenture, dated as of June 1, 1978 - incorporated by
reference to Exhibit 4-A(2), Registration No. 33-49669.
C-198 Supplemental Indenture, dated as of June l, 1979 - incorporated by
reference to Exhibit 4-A(3), Registration No. 33-49669.
C-199 Supplemental Indenture, dated as of September 1, 1984 - incorporated by
reference to Exhibit 4-A(4), Registration No. 33-49669.
C-200 Supplemental Indenture, dated as of December 1, 1985 - incorporated by
reference to Exhibit 4-A(5), Registration No. 33-49669.
C-201 Supplemental Indenture, dated as of December 1, 1986, - incorporated by
reference to Exhibit 4-A(6), Registration No. 33-49669.
C-202 Supplemental Indenture, dated as of May 1, 1989 - incorporated by
reference to Exhibit 4-A(7), Registration No. 33-49669.
C-203 Supplemental Indenture, dated as of December 1, 1990 - incorporated by
reference to Exhibit 4-A(8), Registration No. 33-45312.
C-204 Supplemental Indenture, dated as of March 1, 1992 - incorporated by
reference to Exhibit 4-A(9), Registration No. 33-45312.
C-205 Supplemental Indenture, dated as of June 1, 1993 - incorporated by
reference to Exhibit C-73 to GPU, Inc.'s Annual Report on Form U5S for
the year 1993, File No. 30-126.
C-206 Supplemental Indenture, dated as of November 1, 1995 - incorporated by
reference to Exhibit 4-C-11 to GPU, Inc.'s Annual Report on Form 10-K
for the year 1995, File No. 1-6047.
C-207 Supplemental Indenture, dated August 15, 1996 - incorporated by
reference to Exhibit 4-C-12 to GPU, Inc.'s Annual Report on Form 10-K
for 1996, File No. 1-6047.
102
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
C-208 Senior Note Indenture between Penelec and United States Trust Company of
New York dated April 1, 1999 - incorporated by reference to Exhibit
4-C-13 of Penelec's Annual Report on Form 10-K for the year 1999, File
No. 1-3522.
C-209 Indenture between Penelec and United States Trust Company of New York
dated June 1, 1999 - incorporated by reference to Exhibit A-11(a),
Certificate Pursuant to Rule 24, File No. 70-9327.
Other
C-210 Incentive Compensation Plan for Elected Officers of Penelec dated
February 6, 1997 - incorporated by reference to Exhibit C-191 to GPU,
Inc.'s Annual Report on Form U5S for the year 1996, File No. 30-126.
C-211 Employee Incentive Compensation Plan of Penelec, dated as of April 1,
1995 - incorporated by reference to Exhibit 10-F to GPU, Inc.'s Annual
Report on Form 10-K for the year 1995, File No. 1-6047.
C-212 Penelec Supplemental and Excess Benefits Plan dated June 5, 1997 -
incorporated by reference to Exhibit 10-M to Penelec's Annual Report on
Form 10-K for the year 1996, File No. 1-3522.
GPU Electric & GPU International Group
C-213 Annual Performance Award (APA) Plan of GPU International, Inc. as
amended and restated effective February 6, 1997 - incorporated by
reference to Exhibit C-197 to GPU, Inc.'s Annual Report on Form U5S for
the year 1996, File No. 30-26.
C-214 Annual Performance Award Plan for GPU International, Inc. as amended
January 1, 1999.
Other Exhibits
D-1 Tax Allocation Agreement as amended through March 31, 1996 -
incorporated by reference to Exhibit D-1 to GPU, Inc.'s Annual Report on
Form U5S for the year 1995, File No. 30-126.
Tax Allocation Agreement - Amendments thereto for 1999
E-1 Venture Disclosures - Fiber Optic System Lease Agreements with
Nonassociated Companies.
E-2 Venture Disclosures - Services to Non-Affiliated Utilities.
E-3 GPU International, Inc. Annual Report to the SEC on Form U-13-60 for
1999.
103
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
E-4 GPU Nuclear, Inc. - Policy for the Purchase of Computers for the Nuclear
Science Degree Program - incorporated by reference to Exhibit E-1 to
GPU, Inc.'s Annual Report on Form U5S for the year 1989, File No.
30-126.
E-5 GPU System Accounting Policy regarding Company Credit Card Agreements,
dated April 20, 1993 - incorporated by reference to Exhibit E-3 to GPU,
Inc.'s Annual Report on Form U5S for the year 1992, File No. 30-126.
Schedules Supporting Items of This Report
F-1 Item 6. Part III - Compensation and other related information for the
Officers and Directors of GPU, JCP&L, Met-Ed and Penelec.
F-2 Consolidating Financial Statements of Jersey Central Power & Light
Company for 1999.
Consolidating Financial Statements of Metropolitan Edison Company for
1999.
Consolidating Financial Statements of Pennsylvania Electric Company for
1999.
G-1 Financial Data Schedule (for EDGAR filing only).
GPU, Inc. and Subsidiary Companies
Jersey Central Power & Light Company and Subsidiary Companies
Metropolitan Edison Company and Subsidiary Companies
Pennsylvania Electric Company and Subsidiary Companies
H-1 Organizational chart showing the relationship of GPU International, Inc.
to each exempt wholesale generator (EWG) in which it holds an interest.
Organizational chart showing the relationship of GPU Power, Inc. to each
exempt wholesale generator (EWG) in which it holds an interest.
Organizational chart showing the relationship of GPU Capital, Inc. to
each foreign utility company (FUCO) in which it holds an interest.
104
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Schedules Supporting Items of This Report
I-1 Consolidating Financial Statements of GPU International, Inc. for 1999 -
filed pursuant to request for confidential treatment.
Financial Statements of Selkirk Cogeneration Partners Limited
Partnership for 1999 - incorporated by reference to Selkirk Cogeneration
Partners Limited Partnership Annual Report on Form 10-K for the year
1999, File No. 33-83618-01.
Financial Statements of EI Services Canada, Ltd. for 1999 - filed
pursuant to request for confidential treatment.
Consolidating Financial Statements of GPU Power, Inc. for 1999 - filed
pursuant to request for confidential treatment.
Financial Statements of Los Amigos Leasing Company, Ltd. for 1999 -
filed pursuant to request for confidential treatment.
Financial Statements of Termobarranquilla S.A. for 1999 - filed pursuant
to request for confidential treatment.
Consolidating Financial Statements of GPU Capital, Inc. for 1999 - filed
pursuant to request for confidential treatment.
Consolidating Financial Statements of GPU Electric, Inc. for 1999 -
filed pursuant to request for confidential treatment.
Consolidating Financial Statements of EI UK Holdings, Inc. for 1999 -
filed pursuant to request for confidential treatment.
105
<PAGE>
SIGNATURE
The undersigned system company has duly caused this annual report to be
signed on its behalf by the undersigned thereunto duly authorized pursuant to
the requirements of the Public Utility Holding Company Act of 1935.
GPU, INC.
May 1, 2000
By /s/ P. E. Maricondo
----------------------------------
P. E. Maricondo, Vice President and
Comptroller
(principal accounting officer)
106
Exhibits to be filed by EDGAR
B-204 Association of Notaries of Empresa Distribuidora Electrica Regional,
S.A.
B-205 Articles of Association of Avon Energy Partners plc, adopted as of
January 19, 2000.
B-206 Articles of Association of Avon Energy Partners Holdings, adopted as of
January 19, 2000.
B-207 Articles of Association of GPU Argentina Services S.R.L., dated
January 15, 1999.
B-208 By-Laws of VicGas Holdings, Inc.
B-209 Certificate of Incorporation of VicGas Holdings, Inc.
B-210 Articles of Association of Midlands Electricity plc, adopted as of
January 19, 2000.
B-211 Certificate of Registration on Change of Name of Transmission Pipelines
Australia (Assets) Pty Limited, dated November 3, 1997.
B-212 Constitution of Transmission Pipelines Australia (Assets) Pty Limited,
dated June 1999.
B-213 Certificate of Incorporation of GPU Generation Services - Pasco, Inc.,
dated April 2, 1999.
B-214 By-Laws of GPU Generation Services - Pasco, Inc.
B-215 Certificate of Incorporation of GPU Generation Services - Lake, Inc.,
dated April 2, 1999.
B-216 By-Laws of GPU Generation Services - Lake, Inc.
C-8 GPU Service, Inc. Supplemental and Excess Benefits Plan, as amended
July 1, 1999.
C-23 Severance Protection Agreement for Michael J. Chesser, dated April 17,
2000.
C-24 Supplemental Pension Agreement for Michael J. Chesser, dated April 17,
2000.
C-154 Senior Note Indenture between Met-Ed and United States Trust Company of
New York, dated July 1, 1999.
C-214 Annual Performance Award Plan for GPU International, Inc. as amended
January 1, 1999.
<PAGE>
D-1 Tax Allocation Agreement - Amendments for 1999.
E-1 Venture Disclosures - Fiber Optic System Lease Agreements with
Nonassociated Companies.
E-2 Venture Disclosures - Services to Non-Affiliated Utilities.
E-3 GPU International, Inc. Annual Report to the SEC on Form U-13-60 for 1999.
F-1 Item 6. Part III - Compensation and other related information for the
Officers and Directors of GPU, JCP&L, Met-Ed and Penelec.
F-2 Consolidating Financial Statements of Jersey Central Power & Light
Company for 1999.
Consolidating Financial Statements of Metropolitan Edison Company for
1999.
Consolidating Financial Statements of Pennsylvania Electric Company for
1999.
G-1 Financial Data Schedule.
GPU, Inc. and Subsidiary Companies
Jersey Central Power & Light Company and Subsidiary Company
Metropolitan Edison Company and Subsidiary Companies
Pennsylvania Electric Company and Subsidiary Companies
H-1 Organizational chart showing the relationship of GPU International, Inc.
to each exempt wholesale generator (EWG) in which it holds an interest.
Organizational chart showing the relationship of GPU Power, Inc. to each
exempt wholesale generator (EWG) in which it holds an interest.
Organizational chart showing the relationship of GPU Capital, Inc. to each
foreign utility company (FUCO) in which it holds an interest.
Exhibit B-204
ASSOCIATION OF NOTARIES NOTARIAL INSTRUMENT
Federal Capital - Republic of Argentina LAW 12.990
[inked stamp:] GRACIELA ESTHER AMURA
PUBLIC NOTARY
REG. 3,079
[inked seal:] MINISTRY OF JUSTICE
CORPORATE RECORDS OFFICE
NOTARIAL CERTIFIED COPY B 008650860
<PAGE>
Page 1938. FIRST NOTARIAL CERTIFIED COPY. INSTRUMENT NUMBER FOUR HUNDRED
THIRTY-ONE. In the City of Buenos Aires, Capital of the Republic of Argentina,
on August twenty-ninth, nineteen hundred ninety-seven, before me, Authenticating
Notary, THERE DO PERSONALLY COME: Marcelo Aubone Ibarguren, Argentine,
attorney-at-law, married, born May 8, 1944, holder of Voter and Draft
Registration Card number 4.601.675, domiciled at 602 Avenida del Libertador,
22nd floor, in this city, and Sergio Antonio Francisco Quattrini, Swiss,
attorney-at-law, married, born December 30, 1947, holder of national
identification document number 92.478.993, domiciled at 1180 Esmeralda street,
2nd floor "B," in the Federal Capital; I consider both of these persons to be
competent for this proceeding and they are known to me, to which I attest, and
THEY STATE: That they have resolved to form a Corporation [Sociedad Anonima] by
single instrument subject to the following BYLAWS: ARTICLE ONE: The Company
shall be named "EMPRESA DISTRIBUIDORA ELECTRICA REGIONAL S.A." and shall have
its registered office in the City of Buenos Aires. ARTICLE TWO: Its duration
shall be ninety-nine years, calculated as of the date of its recording in the
Public Register of Commerce. ARTICLE THREE: The Company's exclusive purpose
shall be to engage in activities of investment, on its own behalf, on behalf of
third parties and in partnership with third parties, in the Republic of
Argentina and/or abroad within the limits set by current laws and regulations
and subject thereto; to take, maintain and dispose, in any manner, of
stockholdings in companies existing or to be formed in the Republic of Argentina
and/or abroad; to make investments of any type, including public and private
securities and instruments or any other type of security, make loans of its cash
assets temporarily in domestic or foreign currency, gold, equity securities or
other negotiable or non-negotiable securities; to grant and receive loans; and
to grant surety bonds, cosignatures, mortgages, pledges and any other type of
real or personal guaranties, with respect to its own obligations or obligations
or third parties. To that end, the Company shall have full legal capacity to
acquire rights, undertake obligations and perform all actions that are not
1
<PAGE>
prohibited by law or by these bylaws. Expressly excluded shall be any activities
covered under the Law of Financial Entities (law 21.526). ARTICLE FOUR: The
capital stock shall be TWELVE THOUSAND PESOS (12,000 pesos) represented by
12,000 common, registered, non-endorsable shares with par value of 1 peso each
and with right to one vote per share. The capital may be increased five-fold by
decision of the Meeting of Shareholders, by issuance of common or preferred,
registered non-endorsable shares, as decided by the Meeting of Shareholders,
with right to one vote per share and with par value of one peso (1 peso) each,
which issue the Meeting of Shareholders may delegate to the Board of Directors,
pursuant to article 188 of Law 19.550 (amended text Decree No. 841/84). ARTICLE
FIVE: Shares may be common or preferred, registered non-endorsable, registered
endorsable or bearer when such classes of shares are permitted by current laws
and regulations. Unless the Meeting of Shareholders adopts the
notarial-recording system, the instruments representing the shares and the
provisional certificates shall contain the notations established in articles 211
and 212 of Law 19.550 (amended text Decree No. 841/84). Furthermore, the
certificates representing the shares shall contain the notations stipulated in
article 11 of Decree 63/96 and Law 24.587. ARTICLE SIX: If there is delinquency
in paying for the shares, the Board of Directors may chose any of the procedures
established in Article 193 of Law 19.550 (amended text Decree No. 841/84).
ARTICLE SEVEN: The company may issue negotiable obligations pursuant to the
System of Law 23.576 and successive amendments thereto, debentures, bonds, and
other securities, including new types of securities, regardless of their
denomination or purpose. The relevant issues shall be made inside or outside the
country, in domestic or foreign currency, with or without clause for adjustment
of their par value or interest, whether or not to be placed through the System
of Public Offering, whether or not listable on the securities markets of
Argentina or abroad, all subject to current statutory rules. ARTICLE EIGHT: The
management and administration of the company shall be in the hands of a Board of
Directors, composed of three to nine main members, and the meeting of
shareholders may elect an equal or lesser number of alternates, who shall be
incorporated into the Board of Directors in the order in which they are
appointed. The term of their election shall be one fiscal year, and they may be
reelected indefinitely. The meeting of shareholders shall set the number of
directors, and their compensation. The Board of Directors shall meet with half
plus one of its members and shall adopt resolutions by majority of the persons
present; in the event of a tie, the Chairman shall break the tie by voting
again. At its first meeting, the Board of Directors shall appoint a Chairman and
may appoint a Vice-Chairman, who shall replace the Chairman when the
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<PAGE>
Chairman is absent or indisposed. In guaranty of their duties, the main members
shall deposit in the company's coffers the sum of 500 pesos (five hundred
pesos), or the equivalent thereof in public securities. The Board of Directors
shall have full powers of administration and disposal, including powers
requiring special authorizations under article 1881 of the Civil Code and
article 9 of Decree Law number 8965/63. It may, especially: (a) subscribe,
purchase, receive in payment, sell, barter, assign, transfer loans, securities
or shares for the prices, terms, quantities, form of payment and other
conditions that it considers appropriate; (b) form, transfer and extinguish
pledges and any other real right; (c) form, merge, dissolve and liquidate
joint-stock companies; lend its own money or borrow money and accept loans with
or without documents and make any type of transaction with any type official,
private or mixed banking institutions, inside and/or outside of the country,
branches and agencies thereof in the country or abroad, pursuant to the
respective charters or bylaws thereof; (d) apply for placement under the system
of Public Offering of shares, negotiable bonds, debentures and any other
securities, including new types of securities, regardless of their denomination
or purpose, as well as their listing, be it on Stock Exchanges in Argentina or
abroad; (e) give and revoke special and general, judicial, administrative and
other powers of attorney, without or without power to substitute, initiate,
continue, challenge or abandon any type of actions, including criminal
complaints or reports; and (f) perform any other legal act or action that causes
the Company to acquire rights or undertake obligations. The legal representation
of the company shall belong to the Chairman of the Board of Directors or, if he
is absent, the Vice-Chairman. The management of routine business may be in the
hands of an Executive Committee, composed of three to five main Directors. They
shall be appointed and may be removed by the Board of Directors. Barring
resignation, removal or impediment, they shall remain in their positions for the
periods for which the Meeting of Shareholders elected them Directors. The
chairman of the Board of Directors shall be a member of the Executive Committee
and shall chair its meetings. The Executive Committee shall function with the
presence of the absolute majority of its members and shall adopt resolutions
with the absolute majority of votes present. In the event of a tie, the Chairman
shall break the tie by voting again. Minutes must be kept of the meetings.
ARTICLE NINE. The Regular General Meeting of Shareholders shall designate an
Audit Commission composed of three Main Auditors and three alternate Auditors.
The latter shall act in the order of their election and shall replace the main
auditors in case of temporary or permanent impediments. The members of the Audit
Commission shall hold their positions for one fiscal year and may be
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<PAGE>
reelected indefinitely, however they shall remain in their positions until they
are replaced, and their powers and duties shall be the ones that are determined
by current law. The members of the Audit Commission must meet the requirements
set by current provisions. They must be notified of their appointment if they
are not present at the Meeting of Shareholders that appoints them. In that case,
their presence at meetings of the Board of Directors or Audit Commission shall
signify acceptance of the position. At the first meeting of the Commission, a
Chairman shall be elected to coordinate tasks and direct debates. Meetings shall
be held at least once every three months and as frequently as required by sound
audit management. Meeting shall also be held at the request of any one of the
main members or members in office or of the board of directors of the Company.
The minimum quorum for validly meeting shall be two of its members and decisions
shall be adopted by the absolute majority of the votes present; the Chairman
shall have the tie-breaking vote. Any of the members of the Commission may
perform any acts that it orders with respect to the Company and/or appropriate
parties, without prejudice to the rights held by the other members of the
Commission. All resolutions of the Audit Commission shall be recorded in a book
of minutes, which shall be consecutive and signed by the persons present, having
the record reflect any dissents. Said book of minutes shall be deposited at the
Company's registered office and each member may request a certified copy of the
meetings recorded in it, issued by any of its members. The Audit Commission
shall be compensated in the manner determined by the Meeting of Shareholders.
ARTICLE TEN: Meetings of Shareholders may be called simultaneously on first and
second notice, in the manner established in Article 237 of Law 19.550, (amended
text Decree number 841/84), in which case it shall be held on second notice the
same day one hour after the first notice failed, without prejudice to what is
provided therein for the case of unanimous Meeting of Shareholders. In the event
of successive notice, the provisions of article 237 cited above shall govern.
The quorum and system of majorities shall be governed by articles 243 and 244 of
Law 19.550 (amended text Decree number 841/84), according to the type of meeting
of shareholders, notice and subject that is being addressed. Special Meetings of
Shareholders on second notice shall be held regardless of the number of shares
present with voting right. ARTICLE ELEVEN: The fiscal year shall end on December
31 of each year. At the close of the fiscal year, the financial statements shall
be drawn up pursuant to current statutory and regulatory provisions and
techniques. The liquid earnings that have been made shall be allocated: 1) 5%
(five percent) until reaching 20% (twenty percent) of the capital stock, to the
legal reserve fund; and 2) To compensation of the Board of Directors and Audit
Board,
4
<PAGE>
as applicable. The balance shall be allocated as decided by the Meeting of
Shareholders. Dividends must be paid in proportion to the respective holdings
within the year in which they are declared. Dividends not collected within three
years as of the date on which they were made available to the shareholders shall
be considered time-barred and shall pass to the Legal Reserve Fund, when that
fund has been fully endowed, it shall be allocated as resolved by the Meeting of
Shareholders. ARTICLE TWELVE: After the dissolution of the company, its
liquidation shall be in the hands of the Board of Directors acting at the time
or a liquidating commission, which the Meeting of Shareholders may designate. In
both cases, if appropriate, the Audit Commission shall oversee the proceeding.
When the liabilities have been paid off and the stock has been repaid, the
remainder shall be distributed among the shareholders on a basis prorated to
their respective payments. SUBSCRIPTION AND PAYMENT OF CAPITAL: The capital
shall be subscribed and paid for as follows: Marcelo Aubone Ibarguren: 11,999
common, registered non-endorsable shares with value of one (1) peso each and one
vote per share. Sergio Antonio Francisco Quattrini: 1 common registered
non-endorsable share with value of one (1) Peso and one vote, i.e. the total
quantity of Twelve thousand pesos (12,000 pesos), and one hundred percent (100%)
of the subscription, i.e. twelve thousand pesos (12,000 pesos), are hereby paid
in cash. APPOINTMENT OF BOARD OF DIRECTORS. The following are appointed to make
up the Board of Directors: CHAIRMAN: Jorge Romero, MAIN DIRECTORS: Marcelo
Aubone Ibarguren and Sergio Antonio Francisco Quattrini; ALTERNATE DIRECTORS:
Martin Ernesto Gaing and Daniela Luisa Zulema Guinazu. APPOINTMENT OF AUDIT
COMMISSION: MAIN AUDITORS: Julio Pedro Naveyra, Ruben Osvaldo Mosi and Floreal
Horacio Crespo; and ALTERNATE AUDITORS: Carlos Martin Barbafina, Gabriel Rolando
Martini and Corina Ines Pando; they all accept the positions to which they have
been appointed. REGISTERED OFFICE: The registered office is set at 602 Avenida
del Libertador, 4th floor, Federal Capital. SPECIAL DOMICILE: By article 236[?]
of Law 19.550, the directors set their corresponding special domicile at 602
Avenida del Libertador, 4th floor, Federal Capital; their actual domiciles are
the ones indicated in their respective personal information. AUTHORIZATIONS:
SPECIAL POWER OF ATTORNEY is conferred upon doctors Martin Ernesto Gaing,
Daniela Luisa Zulema Guinazu, Pablo Romulo Di Iorio, Mariel Alejandra Manrique,
Alberto Fernando Tujman, Maria Eugenia Ricardes, Juan Manuel Marti, Gabriela
Troiano, Gradiva Ciani and Mr. Luis Alvarez, so that any of them, individually
or jointly, may accomplish any formalities that are necessary to obtain the
consent of the oversight authority and obtain the registration of the Company,
with powers to accept and propose amendments hereto, including
5
<PAGE>
the purpose, name and registered office, and execute additional instruments,
withdraw any funds that are deposited at Banco de la Nacion Argentina under
Article 187 of Law 19.550 and conduct any other necessary acts, including
applying for recording of the Company's Books at the Public Registry of
Commerce. PRESENT at this proceeding since its start have been Messrs. Jorge
Hector Romero, Argentine, public accountant, married, born November 5, 1948,
holder of Voter and Draft Registration Card number 7.616.326, domiciled at
1610 Avenida Forest, first floor, Federal Capital; Martin Ernesto Gaing,
Argentine, attorney-at-law, married, born March 4, 1955, holder of national
identification document number 11.266.757, domiciled at 255 Avenida Quintana,
3rd floor "B," in the Federal Capital; Daniela Luisa Zulema Guinazu,
Argentine, married, attorney-at-law, born March 22, 1964, holder of national
identification document number 17.029.241, domiciled at 2321 calle Jose
Hernandez, 4th floor, in the federal capital; Julio Pedro Naveyra, Argentine,
married, public accountant, born March 24, 1941, holder of Voter and Draft
Registration Card number 4.368.287, domiciled at 77 calle Parera, 4th floor
"H," in the Federal Capital; Ruben Osvaldo Mosi, Argentine, divorced, public
accountant, born February 5, 1949, holder of Voter and Draft Registration
Card number 4.750.670, domiciled at Marina del Sol - Lanusse and Escalada,
Victoria, jurisdiction of the province of Buenos Aires, temporarily in this
city; Floreal Horacio Crespo, Argentine, married, public accountant, born
January 25, 1945, holder of Voter and Draft Registration Card number
4.521.417, domiciled at 250 calle Quintana, second floor, Federal Capital;
Carlos Martin Barbafina, Argentine, married, public accountant, born
September 3, 1965, holder of national identification document number
17.341.756, domiciled at 25 calle Guayaquil, first floor "A," Federal
Capital; Gabriel Rolando Martini, Argentine, married, public accountant, born
February 21, 1963, holder of national identification document number
16.054.191, domiciled at 324 calle Guayaquil, second floor "A," Federal
Capital; and Corina Ines Pando, Argentine, unmarried, public accountant, born
December 26, 1952, holder of national identification document number
10.564.256, domiciled at 3282 Avenida Santa, 5th floor "A," in the Federal
Capital; all of these persons I consider to be competent for this proceeding
and are known to me; I attest; and together with the appearing parties
Marcelo Aubone Ibarguren and Sergio Antonio Francisco Quattrini, they accept
the positions to which they have been appointed. I READ to the appearing
parties, who sign this instrument in approval, in my presence, I attest.
Marcelo Aubone. Sergio Quattrini. Jorge Hector Romero. Martin E. Gaing.
Daniela Guinazu. Julio P. Naveyra. Ruben Osvaldo Mosi. Floreal Horacio
Crespo. Carlos Martin Barbafina. Gabriel Rolando Martini. Corina Ines Pando.
Before me: Graciela E. Amura. My seal
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is affixed. THIS IS TRUE to its original instrument, which I review on page 1938
of Register 982 in my charge. I attest. For THE COMPANY I issue this first
notarial certified copy on seven sheets of Notarial Instrument paper numbered
consecutively from B 008650861 to this page, inclusive, which I sign and seal at
the location and on the date of its execution.
[inked stamp:] GRACIELA ESTHER AMURA
PUBLIC NOTARY
REG. 3,079
7
<PAGE>
CORPORATE RECORDS OFFICE Page
Transaction Number Description
00291 FORMATION PRE-QUALIFIED PROCESS
File number 1639144
Company Name: EMPRESA DISTRIBUIDORA ELECTRICA REGIONAL
(before)
Recorded in this Register under number 9757 of book 122, volume A of
Corporations
instrument(s) 431-
and/or private instruments
Buenos Aires, September 3, 1997
Count: *0
<repl
[inked seal:] MINISTRY OF JUSTICE
CORPORATE RECORDS OFFICE
[signature]
GUILLERMO C. ROJAS
DIRECTOR, REGISTRY DEPT.
CORPORATE RECORDS OFFICE
8
Exhibit B-205
The Companies Act 1985 and 1989
Company Limited by Shares
ARTICLES OF ASSOCIATION
OF
AVON ENERGY PARTNERS PLC
Adopted by Special Resolution passed on 19 January 2000
- ---------------------------------------------------------------------------
Preliminary
1 The regulations contained in Table A in The Companies (Tables A to F)
Regulations 1985 (as amended so as to affect companies first registered on
the date of incorporation of the Company) shall, except as hereinafter
provided and so far as not inconsistent with the provisions of these
Articles, apply to the Company to the exclusion of all other regulations or
Articles of Association. References herein to regulations are to
regulations in the said Table A unless otherwise stated.
Share Capital
2 The share capital of the Company is 600,000,000 British pound sterling
divided into 600,000,000 Ordinary Shares of 1 British pound sterling
each***.
3
3.1 Subject to Section 80 of the Act, all unissued shares shall be at the
disposal of the Directors and they may allot, grant options over or
otherwise dispose of them to such persons, at such times, and on such
terms as they think proper.
3.2
3.2.1 Pursuant to and in accordance with Section 80 of the Act the
Directors shall be generally and unconditionally authorised to
exercise during the period of five years from the date of
adoption of this article all the powers of the Company to
allot relevant securities up to an aggregate nominal amount of
600,000,000 British pound sterling***; and
3.2.2 by such authority the Directors may make offers or agreements
which would or might require the allotment of relevant
securities after the expiry of such period;
3.3 Any allotment made pursuant to Article 3.2 may be made as if Section
89(1) of the Act did not apply.
3.4 Words and expressions defined in or for the purposes of the said
Section 80 or the said Section 89 shall bear the same meanings in
this Article.
- ---------------
*** As altered by Resolution in Writing of all the Members passed on the 21st
day of June 1996.
1
<PAGE>
Proceedings at General Meetings
4 In the case of a corporation, a resolution in writing may be signed on its
behalf by a Director or the Secretary thereof or by its duly appointed
attorney or duly authorised representative. Regulation 53 shall be extended
accordingly. Regulation 53 (as so extended) shall apply mutatis mutandis to
resolutions in writing of any class of members of the Company.
5 The members shall be deemed to meet together if, being in separate
locations, they are nonetheless linked by conference telephone or other
communication equipment which allows those participating to hear and speak
to each other. Such a meeting shall be deemed to take place where the
largest group of those participating is assembled, or, if there is no such
group, where the Chairperson of the meeting then is.
6 An instrument appointing a proxy (and, where it is signed on behalf of the
appointor by an attorney, the letter or power of attorney or a duly
certified copy thereof) must either be delivered at such place or one of
such places (if any) as may be specified for that purpose in or by way of
note to the notice convening the meeting (or, if no place is so specified,
at the registered office) before the time appointed for holding the meeting
or adjourned meeting or be delivered to the Secretary (or the Chairperson
of the meeting) on the day and at the place of, but in any event before the
time appointed for holding, the meeting or adjourned meeting. The
instrument may be in the form of a facsimile or other machine made copy and
shall, unless the contrary is stated thereon, be valid as well for any
adjournment of the meeting as for the meeting to which it relates. An
instrument of proxy relating to more than one meeting (including any
adjournment thereof) having once been so delivered for the purposes of any
meeting shall not require again to be delivered for the purposes of any
subsequent meeting to which it relates. Regulation 62 shall not apply.
7 At a general meeting, but subject to any rights or restrictions attached to
any shares, on a show of hands every member present in person or by proxy
(or being a corporation present by a duly authorised representative) shall
have one vote, and on a poll every member who is present in person or by
proxy shall have one vote for every share of which he is the holder.
Regulation 54 shall not apply.
Number of Directors
8 The directors shall number between four and eight as the members of the
Company may by Ordinary Resolution from time to time determine. The Company
may by Ordinary Resolution vary the minimum number and/or maximum number of
Directors. Regulation 64 shall be modified accordingly.
Alternate Directors
9
9.1 Any Director (other than an alternate Director) may by notice in
writing to the Company appoint any other Director, or any other
person who is willing to act, to be an alternate Director and may
remove from office an alternate Director so appointed by him.
Regulation 65 shall not apply.
2
<PAGE>
9.2 An alternate Director shall be entitled to receive notices of
meetings of the Directors and of any committee of the Directors of
which his appointor is a member and shall be entitled to attend and
vote as a Director and be counted in the quorum at any such meeting
at which his appointor is not personally present and generally at
such meeting to perform all functions of his appointor as a Director
and for the purposes of the proceedings at such meeting the
provisions of these Articles shall apply as if he were a Director. If
he shall be himself a Director or shall attend any such meeting as an
alternate for more than one Director, his voting rights shall be
cumulative but he shall not be counted more than once for the
purposes of the quorum. The signature of the alternate to any
resolution in writing of the Directors shall be as effective as the
signature of his appointor. An alternate Director shall not (save as
aforesaid) have power to act as Director, nor shall he be deemed to
be a Director for the purposes of these Articles, nor shall he be
deemed to be the agent of his appointor. Regulations 66 and 69 shall
not apply.
9.3 An alternate Director shall be entitled to contract and be interested
in and benefit from contracts or arrangements or transactions and to
be repaid expenses and to be indemnified to the same extent mutatis
mutandis as if he were a Director but he shall not be entitled to
receive from the Company in respect of his appointment as alternate
Director any remuneration except only such part (if any) of the
remuneration otherwise payable to his appointor as such appointor may
by notice in writing to the Company from time to time direct.
Delegation of Directors' Powers
10 In addition to the powers to delegate contained in Regulation 72, the
Directors may delegate any of their powers or discretions (including
without prejudice to the generality of the foregoing all powers and
discretions whose exercise involves or may involve the payment of
remuneration to or the conferring of any other benefit on all or any of the
Directors) to committees consisting of one or more Directors and (if
thought fit) one or more other named persons or persons to be co-opted as
hereinafter provided. Insofar as any such power or discretion is delegated
to a committee, any reference in these Articles to the exercise by the
Directors of the power or discretion so delegated shall be read and
construed as if it were a reference to the exercise thereof by such
committee. Any committee so formed shall in the exercise of the powers so
delegated conform to any regulations which may from time to time be imposed
by the Directors. Any such regulations may provide for or authorise the
co-option to the committee of persons other than Directors and may provide
for members who are not Directors to have voting rights as members of the
committee but so that (a) the number of members who are not Directors shall
be less than one-half of the total number of members of the committee and
(b) no resolution of the committee shall be effective unless passed by a
majority including at least one member of the committee who is a Director.
Regulation 72 shall be modified accordingly.
3
<PAGE>
Appointment and Retirement of Directors
11 The Directors shall not be subject to retirement by rotation. Regulations
73 to 75 and the second and third sentences of Regulation 79 shall not
apply, and other references in the said Table A to retirement by rotation
shall be disregarded.
12 Any director who reaches the age of 70 shall be required to vacate
office.
Disqualification and Removal of Directors
13 The office of a Director shall be vacated in any of the events specified in
Regulation 81 and also if he shall in writing offer to resign and the
Directors shall resolve to accept such offer or if he shall be removed from
office by notice in writing signed by all his co-Directors (being at least
two in number) but so that if he holds an appointment to an executive
office which thereby automatically determines such removal shall be deemed
an act of the Company and shall have effect without prejudice to any claim
for damages for breach of any contract of service between him and the
Company.
14 Any provision of the Act which, subject to the provisions of the Articles,
would have the effect of rendering any person ineligible for appointment or
election as a Director or liable to vacate office as a Director on account
of his having reached any specified age or of requiring special notice or
any other special formality in connection with the appointment or election
of any Director over a specified age, shall not apply to the Company.
Remuneration of Directors
15 Any Director who serves on any committee, or who otherwise performs
services which in the opinion of the Directors are outside the scope of the
ordinary duties of a Director, may be paid such extra remuneration by way
of salary, commission or otherwise or may receive such other benefits as
the Directors may determine. Regulation 82 shall be extended accordingly.
Proceedings of Directors
16 The quorum for the transaction of the business of the Directors shall be
four. A person who holds office only as an alternate Director shall, if his
appointor is not present, be counted in the quorum. Regulation 89 shall not
apply.
17 The Directors, and any committee of Directors, shall be deemed to meet
together if, being in separate locations, they are nonetheless linked by
conference telephone or other communication equipment which allows those
participating to hear and speak to each other and a quorum in that event
shall be four such persons so linked. Such a meeting shall be deemed to
take place where the largest group of those participating is assembled or,
if there is no such group, where the Chairperson of the meeting then is.
4
<PAGE>
18 On any matter in which a Director is in any way interested he may
nevertheless vote and be taken into account for the purposes of a quorum
provided that he has disclosed any interest he may have in accordance with
Section 317 of the Act and (save as otherwise agreed) may retain for his
own absolute use and benefit all profits and advantages directly or
indirectly accruing to him thereunder or in consequence thereof.
Regulations 94 to 98 shall not apply.
19 Directors who are absent from the United Kingdom shall be entitled to the
same notice of all meetings of the Directors as Directors not so absent. If
a Director who is absent from the United Kingdom does not advise the
Company in writing of his overseas address, notice to his usual address in
the United Kingdom shall be deemed sufficient notice for the purposes of
this Article.
Notices
20 A member whose registered address is not within the United Kingdom shall be
entitled to have notices sent to him as if he were a member with a
registered address within the United Kingdom and the last sentence of
Regulation 112 shall not apply.
Indemnity
21
21.1 Subject to the provisions of and so far as may be permitted by law,
every Director, Secretary or other officer of the Company shall be
entitled to be indemnified by the Company out of its own funds
against and/or exempted by the Company from all costs, charges,
losses, expenses and liabilities incurred by him in the actual or
purported execution and/or discharge of his duties and/or the
exercise or purported exercise of his powers and/or otherwise in
relation to or in connection with his duties, powers or office
including (without prejudice to the generality of the foregoing) any
liability incurred by him in defending any proceedings, civil or
criminal, which relate to anything done or omitted or alleged to have
been done or omitted by him as an officer or employee of the Company
and in which judgment is given in his favour (or the proceedings are
otherwise disposed of without any finding or admission of any
material breach of duty on his part) or in which he is acquitted or
in connection with any application under any statute for relief from
liability in respect of any such act or omission in which relief is
granted to him by the Court. Regulation 118 shall not apply.
21.2 Without prejudice to paragraph 21.1 of this Article, the Directors
shall have power to purchase and maintain insurance for or for the
benefit of any persons who are or were at any time Directors,
officers or employees of any Relevant Company (as defined in
paragraph 21.3 of this Article) or who are or were at any time
trustees of any pension fund or employees' share scheme in which
employees of any Relevant Company are interested, including (without
prejudice to the generality of the foregoing) insurance against any
liability incurred by such persons in respect of any act or omission
in the actual or purported execution and/or discharge of their duties
and/or in the exercise or purported exercise of their powers and/or
otherwise in relation to their duties, powers or offices in relation
to any Relevant Company, or any such pension fund or employees' share
scheme.
5
<PAGE>
21.3 For the purpose of paragraph 21.2 of this Article, "Relevant Company"
shall mean the Company, any holding company of the Company or any
other body, whether or not incorporated, in which the Company or such
holding company or any of the predecessors of the Company or of such
holding company has or had any interest whether direct or indirect or
which is in any way allied to or associated with the Company, or any
subsidiary undertaking of the Company or of such other body.
OVERRIDING PROVISIONS
22 Any member holding, or any members together holding, shares carrying not
less than 90 per cent of the votes which may for the time being be cast at
a general meeting of the Company may at any time and from time to time:
(a) appoint any person to be a Director (whether to fill a vacancy or
as an additional Director);
(b) remove from office any Director howsoever appointed but so that if he
holds an appointment to an executive office which thereby
automatically determines such removal shall be deemed an act of the
Company and shall have effect without prejudice to any claim for
damages for breach of any contract of service between him and the
Company;
(c) by written notice to the Company require that no unissued shares
shall be issued or agreed to be issued or put under option without
the consent of such member or members;
(d) to such extent as such member or members may by written notice to the
Company from time to time prescribe.
Any such appointment, removal, consent or notice shall be in writing
served on the Company and signed by the member or members. No person
dealing with the Company shall be concerned to see or enquire as to
whether the powers of the Directors have been in any way restricted
hereunder or as to whether any requisite consent of such member or
members has been obtained and no obligation incurred or security
given or transaction effected by the Company to or with any third
party shall be invalid or ineffectual unless the third party had at
the time express notice that the incurring of such obligation or the
giving of such security or the effecting of such transaction was in
excess of the powers of the Directors.
To the extent of any inconsistency this Article shall have overriding
effects as against all other provisions of these Articles.
6
Exhibit B-206
The Companies Act 1985 and 1989
An Unlimited Company Having A Share Capital
ARTICLES OF ASSOCIATION
OF
AVON ENERGY PARTNERS HOLDINGS
Adopted by Special Resolution passed on 19 January 2000
- -----------------------------------------------------------------------------
Preliminary
1 The regulations contained in Table A in The Companies (Tables A to F)
Regulations 1985 (as amended so as to affect companies first registered on
the date of incorporation of the Company) shall, except as hereinafter
provided and so far as not inconsistent with the provisions of these
Articles, apply to the Company to the exclusion of all other regulations
or Articles of Association. References herein to regulations are to
regulations in the said Table A unless otherwise stated.
Share Capital
2 The share capital of the Company is 660,000,000 British pound sterling
divided into 660,000,000 Ordinary Shares of 1 British pound sterling each,
which shall be identical in all respects and rank pari passu save as
described in the next sentence.
3
3.1 Subject to Section 80 of the Act, all unissued shares shall be at
the disposal of the Directors and they may allot, grant options over
or otherwise dispose of them to such persons, at such times, and on
such terms as they think proper.
3.2
3.2.1 Pursuant to and in accordance with Section 80 of the Act, the
Directors shall be generally and unconditionally authorized to
exercise during the period of five years from the date of the
adoption of this Article all the powers of the Company to
allot relevant securities up to an aggregate nominal amount of
660,000,000 British pound sterling* ; and
3.2.2 by such authority the Directors may make offers or agreements
which would or might require the allotment of relevant
securities after the expiry of such period;
3.3 Section 89(1) of the Act shall not apply to the allotment by the
Company of equity securities.
- ---------------
* As altered by Resolutions in Writing of all the Members passed on the 21st
day of June 1996 and the 19 th day of September 1996.
1
<PAGE>
3.4 Words and expressions defined in or for the purposes of the said
Section 80 or the said Section 89 shall bear the same meanings in
this Article.
4 The Company may by special resolution:
4.1 increase the share capital by such sum to be divided into shares
of such amount as the resolution may prescribe;
4.2 consolidate and divide all or any of its share capital into
shares of a larger amount than its existing shares;
4.3 subdivide its shares, or any of them, into shares of a smaller
amount than its existing shares;
4.4 cancel any shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any
person;
4.5 reduce its share capital and any share premium account in any
way.
Regulations 32 and 34 shall not apply to the Company.
Redeemable Shares and Purchase of Shares by the Company
5 In addition to and without prejudice to the powers in Clause 4 above,
the Company may:
5.1 issue shares which are to be redeemed or liable to be redeemed at
the option of the Company or the holder thereof except that no
redeemable shares may be issued at any time when there are no issued
shares of the Company which are not redeemable;
5.2 purchase its own shares, including its own redeemable shares,
subject to the terms of the purchase being authorized by a Special
Resolution in general meeting.
Regulations 3 and 35 shall not apply.
Proceedings at General Meetings
6 In the case of a corporation, a resolution in writing may be signed on its
behalf by a Director or the Secretary thereof or by its duly appointed
attorney or duly authorized representative.
Regulation 53 shall be extended accordingly. Regulation 53 (as so
extended) shall apply mutatis mutandis to resolutions in writing of any
class of members of the Company.
7 The members shall be deemed to meet together if, being in separate
locations, they are nonetheless linked by conference telephone or other
communication equipment which allows those participating to hear and speak
to each other. Such a meeting shall be deemed to take place where the
largest group of those participating is assembled or, if there is no such
group, where the Chairperson of the meeting then is.
2
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8 An instrument appointing a proxy (and, where it is signed on behalf of the
appointor by an attorney, the letter or power of attorney or a duly
certified copy thereof) must either be delivered at such place or one of
such places (if any) as may be specified for that purpose in or by way of
note to the notice convening the meeting (or, if no place is so specified,
at the registered office) before the time appointed for holding the
meeting or adjourned meeting or be delivered to the Secretary (or the
Chairperson of the meeting) on the day and at the place of, but in any
event before the time appointed for holding, the meeting or adjourned
meeting. The instrument shall, unless the contrary is stated thereon, be
valid as well for any adjournment of the meeting as for the meeting to
which it relates. An instrument of proxy relating to more than one meeting
(including any adjournment thereof) having once been so delivered for the
purposes of any meeting shall not require again to be delivered for the
purposes of any subsequent meeting to which it relates. Regulation 62
shall not apply.
9 At a general meeting, but subject to any rights or restrictions attached
to any shares, on a show of hands every member present in person or by
proxy (or being a corporation present by a duly authorized representative)
shall have one vote, and on a poll every member who is present in person
or by proxy shall have one vote for every share of which he is the holder.
Regulation 54 shall not apply.
Number of Directors
10 The directors shall number between four and eight as the members of the
Company may by Ordinary Resolution from time to time determine. The
Company may by Ordinary Resolution vary the minimum number and/or maximum
number of Directors. Regulation 64 shall be modified accordingly.
Alternate Directors
11
11.1 Any Director (other than an alternate Director) may by notice in
writing to the Company appoint any other Director, or any other
person who is willing to act, to be an alternate Director and may
remove from office an alternate Director so appointed by him.
Regulation 65 shall not apply.
11.2 An alternate Director shall be entitled to receive notices of
meetings of the Directors and of any committee of the Directors of
which his appointor is a member and shall be entitled to attend and
vote as a Director and be counted in the quorum at any such meeting
at which his appointor is not personally present and generally at
such meeting to perform all functions of his appointor as a Director
and for the purposes of the proceedings at such meeting the
provisions of these Articles shall apply as if he were a Director.
If he shall be himself a Director or shall attend any such meeting
as an alternate for more than one Director, his voting rights shall
be cumulative but he shall not be committed more than once for the
purposes of the quorum. The signature of the alternate to any
resolution in writing of the Directors shall be as effective as the
signature of his appointor. An alternate Director shall not (save as
aforesaid) have power to act as a Director, nor shall he be deemed
to be a Director for the purposes of these Articles, nor shall he be
deemed to be the agent of his appointor. Regulations 66 and 69 shall
not apply.
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11.3 An alternate Director shall be entitled to contract and be
interested in and benefit from contracts or arrangements or
transactions and to be repaid expenses and to be indemnified to the
same extent mutatis mutandis as if he were a Director but he shall
not be entitled to receive from the Company in respect of his
appointment as alternate Director any remuneration except only such
part (if any) of the remuneration otherwise payable to his appointor
as such appointor may by notice in writing to the Company from time
to time direct.
Delegation of Directors' Powers
12 In addition to the powers to delegate contained in Regulation 72, the
Directors may delegate any of their powers or discretions (including
without prejudice to the generality of the foregoing all powers and
discretions whose exercise involves or may involve the payment of
remuneration to or the conferring of any other benefit on all or any of
the Directors) to committees consisting of one or more Directors and (if
thought fit) one or more other named person or persons to be co-opted as
hereinafter provided. Insofar as any such power or discretion is delegated
to a committee, any reference in these Articles to the exercise by the
Directors of the power or discretion so delegated shall be read and
construed as if it were a reference to the exercise thereof by such
committee. Any committee so formed shall in the exercise of the powers so
delegated conform to any regulations which may from time to time be
imposed by the Directors. Any such regulations may provide for or
authorize the co-option to the committee of persons other than Directors
and may provide for members who are not Directors to have voting rights as
members of the committee but so that (a) the number of members who are not
Directors shall be less than one-half of the total number of members of
the committee and (b) no resolution of the committee shall be effective
unless passed by a majority including at least one member of the Committee
who is a Director. Regulation 72 shall be modified accordingly.
Appointment and Retirement of Directors
13 The Directors shall not be subject to retirement by rotation. Regulations
73 to 75 and the second and third sentences of Regulation 79 shall not
apply, and other references in the said Table A to retirement by rotation
shall be disregarded.
14 Any Director who reaches the age of 70 shall be required to vacate
office.
Disqualification and Removal of Directors
15 The office of a Director shall be vacated in any of the events specified
in Regulation 81 and also if he shall in writing offer to resign and the
Directors shall resolve to accept such offer or if he shall be removed
from office by notice in writing signed by all his co-Directors (being at
least two in number) but so that if he holds an appointment to an
executive office which thereby automatically determines such removal shall
be deemed an act of the Company and shall have effect without prejudice to
any claim for damages for breach of any contract of service between him
and the Company.
4
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16 Any provision of the Act which, subject to the provisions of the Articles,
would have the effect of rendering any person ineligible for appointment
or election as a Director or liable to vacate office as a Director on
account of his having reached any specified age or of requiring special
notice or any other special formality in connection with the appointment
or election of any Director over a specified age, shall not apply to the
Company.
Remuneration of Directors
17 Any Director who serves on any committee, or who otherwise performs
services which in the opinion of the Directors are outside the scope of
the ordinary duties of a Director, may be paid such extra remuneration by
way of salary, commission or otherwise or may receive such other benefits
as the Directors may determine. Regulation 82 shall be extended
accordingly.
Proceedings of Directors
18 The quorum for the transaction of the business of the Directors shall be
four. A person who holds office only as an alternate Director shall, if
his appointor is not present, be counted in the quorum. Regulation 89
shall not apply.
19 The Directors, and any committee of Directors, shall be deemed to meet
together if, being in separate locations, they are nonetheless linked by
conference telephone or other communication equipment which allows those
participating to hear and speak to each other and a quorum in that event
shall be four such persons so linked. Such a meeting shall be deemed to
take place where the largest group of those participating is assembled or,
if there is no such group, where the Chairperson of the meeting then is.
20 On any matter in which a Director is in any way interested he may
nevertheless vote and be taken into account for the purposes of a quorum
provided that he has disclosed any interest he may have in accordance with
section 317 of the Act and (save as otherwise agreed) may retain for his
own absolute use and benefit all profits and advantages directly or
indirectly accruing to him thereunder or in consequence thereof.
Regulations 94 to 98 shall not apply.
21 Directors who are absent from the United Kingdom shall be entitled to the
same notice of all meetings of the Directors as Directors not so absent.
If a Director who is absent from the United Kingdom does not advise the
Company in writing of his overseas address, notice to his usual address in
the United Kingdom shall be deemed sufficient notice for the purposes of
this Article.
Notices
22 A member whose registered address is not within the United Kingdom shall
be entitled to have notices sent to him as if he were a member with a
registered address within the United Kingdom and the last sentence of
Regulation 112 shall not apply.
Indemnity
23
23.1 Subject to the provisions of and so far as may be permitted by law,
every Director, Secretary or other officer of the Company shall be
entitled to be indemnified by the Company out of its own
5
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funds against and/or exempted by the Company from all costs,
charges, losses, expenses and liabilities incurred by him in the
actual or purported execution and/or discharge of his duties and/or
the exercise or purported exercise of his powers and/or otherwise in
relation to or in connection with his duties, powers or office
including (without prejudice to the generality of the foregoing) any
liability incurred by him in defending any proceedings, civil or
criminal, which relate to anything done or omitted or alleged to
have been done or omitted by him as an officer or employee of the
Company and in which judgement is given in his favor (or the
proceedings are otherwise disposed of without any finding or
admission of any material breach of duty on his part) or in which he
is acquitted or in connection with any application under any statute
for relief from liability in respect of any such act or omission in
which relief is granted to him by the Court. Regulation 118 shall
not apply.
23.2 Without prejudice to paragraph 23.1 of this Article, the Directors
shall have the power to purchase and maintain insurance for or for
the benefit of any persons who are or were at any time Directors,
officers or employees of any Relevant Company (as defined in
paragraph 23.3 of this Article) or who are or were at any time
trustees of any pension fund or employees' share scheme in which
employees of any Relevant Company are interested, including (without
prejudice to the generality of the foregoing) insurance against any
liability incurred by such persons in respect of any act or omission
in the actual or purported execution and/or discharge of their
duties and/or in the exercise or purported exercise of their powers
and/or otherwise in relation to their duties, powers or offices in
relation to any Relevant Company, or any such pension fund or
employees' share scheme.
23.3 For the purpose of paragraph 23.2 of this Article, "Relevant
Company" shall mean the Company, any holding company of the Company
or any other body, whether or not incorporated, in which the Company
or such holding company or any of the predecessors of the Company or
of such holding company has or had any interest whether direct or
indirect or which is in any way allied to or associated with the
Company, or any subsidiary undertaking of the Company or of any such
other body.
24 Any member holding, or any members together holding, shares carrying not
less than 90 per cent of the votes which may for the time being be cast at
a general meeting of the Company may at any time and from time to time:
(a) appoint any person to be a Director (whether to fill a vacancy or
as an additional Director);
(b) remove from office any Director howsoever appointed but so that if he
holds an appointment to an executive office which thereby
automatically determines such removal shall be deemed an act of the
Company and shall have effect without prejudice to any claim for
damages for breach of any contract of service between him and the
Company;
(c) by written notice to the Company require that no unissued shares
shall be issued or agreed to be issued or put under option without
the consent of such member or members;
6
<PAGE>
(d) restrict any or all powers of the Directors in such respects and to
such extent as such member or members may by written notice to the
Company from time to time prescribe.
Any such appointment, removal, consent or notice shall be in writing
served on the Company and signed by the member or members. No person
dealing with the Company shall be concerned to see or enquire as to
whether the powers of the Directors have been in any way restricted
hereunder or as to whether any requisite consent of such member or
members has been obtained and no obligation incurred or security
given or transaction effected by the Company to or with any third
party shall be invalid or ineffectual unless the third party had at
the time express notice that the incurring of such obligation or the
giving of such security or the effecting of such transaction was in
excess of the powers of the Directors.
To the extent of any inconsistency this Article shall have overriding
effects as against all other provisions of these Articles.
7
Exhibit B-207
ARTICLES OF ASSOCIATION
GPU ARGENTINA SERVICES S.R.L.
In Buenos Aires, capital city of the Republic of Argentina, on January 15, 1999,
Mariano Flrencio Grondona, establishing domicile at Suipacha 1111, 18th floor,
Buenos Aires and GPU Argentina Holdings, Inc., represented by Pedro Eugenio
Aramburu, establishing domicile at Suipacha 1111, 18th floor, Buenos Aires
resolve to form a limited partnership (a society of limited responsibility,
hereinafter called the "Company") in the Republic of Argentina under Argentine
Business Companies Law No. 19,550, the Articles of Association which states as
follows:
1. The name of the Company is GPU Argentina Services S.R.L. and is
located in the city of Buenos Aires.
2. The term of duration is 99 years as of registration with the
Public Commercial Registry.
3. The corporate purpose is to render technical and professional
operation services to companies located in Argentina or abroad
whether dedicated solely or not to distribute, generate and
transport electric energy and/or to commercialize it. To this
purpose, the Company shall be able to act in the country as
abroad, individually or associated or becoming a member of other,
national or foreign corporations, associations or third parties.
The Company shall be able to create guarantees in favor of third
parties.
4. The capital stock of the Company is $8,000 represented by 5,000
units of $1 par value each.
5. The management and legal representation of the Company shall
correspond to one or more managers, whether partners or not, who
shall be able to act jointly. The managers shall have all the
powers to manage and dispose of the properties of the Company,
including those for which the law requires special powers of
attorney as those set forth in section 1881 of the Civil Code and
section 9 of the Decree-Law 5965/63. Consequently, they shall be
able to carry out, on behalf of the Company, any kind of legal
acts leading to attain the corporate purpose, among them, to
operate with Banco de la Nacion Argentina, and other public or
private credit entities inside Argentina or abroad; to organize
agencies, branches or other kind of representative office in the
country or abroad; to grant powers of attorney in favor of one or
more individuals including those to institute criminal actions or
those that have the purpose and scope deemed convenient. The
managers shall deposit a cash guarantee of $100.
6. The meetings of partners shall be held in the principal place of
business. The managers shall convene meetings by written notice sent
to the partners to the last address informed by them to the Company.
The quorum and majorities provided for in section 160 of Law 19,550
shall apply. Each unit shall be entitled to one vote.
1
<PAGE>
7. The units are of free transfer. The parties, in a unit transfer
agreement, shall follow the proceeding established in section 152 of
Law 19,550 so that the transfer shall be binding to the Company and
to third parties.
8. The fiscal year shall end on December 31, of each year. The
financial statements shall be prepared as of that date in accordance
with the provisions and the technical rules in force and shall be
available for consideration of the partners at least 15 days before
that date.
9. The net profits shall apply to:
a. five percent, up to twenty percent of the subscribed capital
for a legal reserve fund;
b. remuneration of the managers;
c. the balance whether total or partially, to distribute among the
partners in proportion to their interests in the Company, or
to a special reserve fund or allowance funds or to the
destiny established by the partners.
10. The liquidation of the Company shall be carried out by the
manager or managers or the individuals appointed by the majority
partners. Likewise, it is hereby agreed:
a. Subscription of Capital Stock: to subscribe in all the
capital stock as follows: GPU Argentina Holdings, Inc.,
4,999 units of $1 par value each and Mariano Florencio
Grondona, one unit of $1 par value.
b. Payment of Capital Stock: to pay in the capital stock in a
25% engaging to pay in the balance within the term of two
years as from this date.
c. Principal Place of Business: to establish the principal
place of business at Suipacha 1111, 18th floor, Buenos Aires.
d. Appointment of Manager: to appoint Mariano Florencio
Grondona as Manager for an indefinite period of time.
e. Acceptance of Title: Mariano Florencio Grondona, of
Argentine nationality, married, born on March 27, 1957,
lawyer, bearing Identity Document No. 12.946.521,
establishing domicile at Suipacha 111, 18th floor of this
city, attends the act and STATES: That he acknowledges his
appointment as manager and accepts it and that he
establishes special domicile at Suipacha 111, 18th floor of
this city.
f. Term of Duration and Granting of a Special Power of
Attorney: Considering the need that the Company has an
agent during the term of duration, a special power of
attorney is hereby granted in favor of Mariano Florencio
Grondona so that, on behalf and representing GPU Argentina
Services S.R.L., he may
2
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i. execute any and all documents related to the Operation
Agreements between the Company and Empresa Distribuidora de
Electricidad de La Rioja S.A. and between the Company and
Empresa Distribuidora de Electricidad de Salta G.A.
including said Operation Agreements, affidavits,
agreements, acceptance and waiver of rights and
jurisdictions and the public and private instruments that
may be necessary, with full powers to agree their terms and
conditions and to carry out the proceedings and filings
before public and private entities leading to the better
performance of this mandate and to obtain the approval of
the corresponding national, provincial and local
authorities to engage as operator of licensee companies for
the electric energy distribution,
ii. buy shares, units and interests of any kind in business
companies organized or to be organized in the country or
abroad, executing the corresponding contracts, paying
prices and making subscriptions and payments as
necessary and,
iii.represent the Company in the shareholders' meeting,
meetings of partners, managers and management body meetings
of the business companies in which principal has interests
with full representation powers, including those of
appointing directors, auditors and managers, voting capital
increases and reductions, payment of dividends and
subscription and payment of shares. The attorney-in-fact
shall have full powers of representation including those
provided for in section 1881 of the Civil Code for the
exercise of the power of attorney hereby granted, as well
as the powers to execute the documents that may be
necessary to exercise those powers. This mandate may be
substituted whether total or partially in favor of Maria
Ines Justo Borga, Pedro Eugenio Aramburu, Juan Pablo
Mortarotti O Agustina Monferran so that anyone of them
individually, alternate or indistinctly may carry out the
substituted powers in the same terms and conditions as
those granted to Mariano Florencio Grondona.
3
Exhibit B-208
BY-LAWS
OF
VICGAS HOLDINGS, INC.
Offices
1. VicGas 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.
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
<PAGE>
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 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
<PAGE>
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.
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
<PAGE>
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 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.
<PAGE>
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.
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
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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.
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.
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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.
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.
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The Chairman
26. (a)If a Chairman shall be chosen by the Board of Directors, he shall
preside at all meetings of the Board at which he shall be present.
(b) If a Chairman shall be chosen by the Board of Directors and if
he shall be designated by the Board as chief executive officer of the
Corporation:
(i) he shall have supervision, direction and control of the
conduct of the business of the Corporation, subject, however,
to the control of the Board of Directors and the Executive
Committee, if there be one;
(ii)he may sign in the name and on behalf of the Corporation
any and all contracts, agreements or other instruments
pertaining to matters which arise in the ordinary course of
business of the Corporation, and, when authorized by the Board
of Directors or the Executive Committee, if there be one, may
sign in the name and on behalf of the Corporation any and all
contracts, agreements or other instruments of any nature
pertaining to the business of the Corporation;
(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:
<PAGE>
(i) he may sign in the name and on behalf of the Corporation
any and all contracts, agreements or other instruments
pertaining to matters which arise in the ordinary course of
business of the Corporation and, when authorized by the Board
of Directors or the Executive Committee, if there be one, may
sign in the name and on behalf of the Corporation any and all
contracts, agreements or other instruments of any nature
pertaining to the business of the Corporation;
(ii) he shall have such other powers and perform such other
duties as may be prescribed from time to time by law, by the
By-Laws, or by the Board of Directors.
The President
27. (a)If a Chairman shall not be chosen by the Board of Directors, the
President shall preside at all meetings of the Board at which he shall be
present.
(b) If the President shall be designated by the Board of Directors
as chief executive officer of the Corporation:
(i) he shall have supervision, direction and control of the
conduct of the business of the Corporation, subject, however,
to the control of the Board of Directors and the Executive
Committee if there be one;
(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;
<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 the Chairman shall be designated by the Board of Directors
as chief executive officer of the Corporation, the President:
(i) shall be the chief operating officer of the
Corporation;
(ii) shall have supervision, direction and control of the
conduct of the business of the Corporation, in the absence or
disability of the Chairman, subject, however, to the control
of the Board of Directors and the Executive Committee, if
there be one;
(iii) may sign in the name and on behalf of the Corporation
any and all contracts, agreements or other instruments
pertaining to matters which arise in the ordinary course of
business of the Corporation, and, when authorized by the Board
of Directors or the Executive Committee, if there be one, may
sign in the name and on behalf of the Corporation any and all
contracts, agreements or other instruments of any nature
pertaining to the business of the Corporation;
(iv) at the request or in the absence or disability of the
Chairman, may, unless otherwise directed by the Board of
Directors pursuant to Section 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
<PAGE>
(vi) shall have such other powers and perform such other
duties as may be prescribed from time to time by law, by the
By-Laws, or by the Board of Directors.
Vice President
28. (a)The Vice President shall, in the absence or disability of the
President, if the President has been designated chief executive officer of the
Corporation or if the President is acting pursuant to the provisions of
Subsection 27(c)(ii) of the By-Laws, have supervision, direction and control of
the conduct of the business of the Corporation, subject, however, to the control
of the Directors and the Executive Committee, if there be one.
(b) He may sign in the name of and on behalf of the Corporation
any and all contracts, agreements or other instruments pertaining to matters
which arise in the ordinary course of business of the Corporation, and when
authorized by the Board of Directors or the Executive Committee, if there be
one, except in cases where the signing thereof shall be expressly delegated by
the Board of Directors or the Executive Committee to some other officer or agent
of the Corporation.
(c) He may, if the President has been designated chief executive
officer of the Corporation or if the President is acting pursuant to the
provisions of Subsection 27(c)(ii) of the By-Laws, at the request or in the
absence or disability of the President or in case of the failure of the
President to appoint a substitute or proxy as provided in Subsections 27(b)(iii)
and 27(c)(iv) of the By-Laws, unless otherwise directed by the Board of
Directors pursuant to Section 36 of the By-Laws, attend in person or by
substitute or proxy appointed by him and act and vote on behalf of the
Corporation at all meetings of the stockholders of any corporation in which the
Corporation holds stock and grant any consent, waiver or power of attorney in
respect of such stock.
(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
<PAGE>
respective Vice Presidents shall have supervision, direction and control of the
business of the Corporation in the absence or disability of the President.
The Secretary
29. (a)The Secretary shall attend all meetings of the Board of Directors
and all meetings of the stockholders and record all votes and the minutes of all
proceedings in books to be kept for that purpose; and he shall perform like
duties for the Executive Committee and any other committees created by the Board
of Directors.
(b) He shall give, or cause to be given, notice of all meetings of
the stockholders, the Board of Directors, or the Executive Committee of which
notice is required to be given by law or by the By-Laws.
(c) He shall have such other powers and perform such other duties
as may be prescribed from time to time by law, by the By-Laws, or the Board of
Directors.
(d) Any records kept by the Secretary shall be the property of the
Corporation and shall be restored to the Corporation in case of his death,
resignation, retirement or removal from office.
(e) He shall be the custodian of the seal of the Corporation and,
pursuant to Section 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
<PAGE>
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 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 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.
<PAGE>
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.
(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
<PAGE>
or in his absence or disability and shall exercise such other powers and duties
as may be conferred or required by the Board of Directors. If required by the
Board of Directors, any Assistant Comptroller shall give the Corporation a bond,
the premium on which shall be paid by the Corporation, similar to that which may
be required to be given by the Comptroller.
Vacancies
32. If the office of any director becomes vacant by reason of death,
resignation, retirement, disqualification, or otherwise, the remaining
directors, by the vote of a majority of those then in office at a meeting, the
notice of which shall have specified the filling of such vacancy as one of its
purposes may choose a successor, who shall hold office for the unexpired term in
respect of which such vacancy occurs. If the office of any officer of the
Corporation shall become vacant for any reason, the Board of Directors, at a
meeting, the notice of which shall have specified the filling of such vacancy as
one of its purposes, may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred. Pending action by the
Board of Directors at such meeting, the Board of Directors or the Executive
Committee may choose a successor temporarily to serve as an officer of the
Corporation.
Resignations
33. Any officer or any director of the Corporation may resign at any
time, such resignation to be made in writing and transmitted to the Secretary.
Such resignation shall take effect from the time of its acceptance, unless some
time be fixed in the resignation, and then from that time. Nothing herein shall
be deemed to relieve any officer from liability for breach of any contract of
employment resulting from any such resignation.
Duties of Officers May be Delegated
34. In case of the absence or disability of any officer of the
Corporation, or for any other reason the Board of Directors may deem sufficient,
the Board, by vote of a majority of the total number of directors provided for
in Section 9 of the By-Laws may, notwithstanding any provisions of the By-Laws,
delegate or assign, for the time being, the powers or duties, or any of them, of
such officer to any other officer or to any director.
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
<PAGE>
Law of the State of Delaware, and the breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness. The provisions of this
subsection (a) shall not apply to the responsibility or liability of a director
pursuant to any criminal statute, or the liability of a director for the payment
of taxes pursuant to local, state or federal law.
(b) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, whether formal or informal, and whether brought by or in the
right of the Corporation or otherwise, by reason of the fact that he was a
director, officer or employee of the Corporation (and may indemnify any person
who was an agent of the Corporation), or a person serving at the request of the
Corporation as a director, officer, partner, fiduciary or trustee of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, to the fullest extent permitted by law, including without limitation
indemnification against expenses (including attorneys' fees and disbursements),
damages, punitive damages, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such proceeding to the fullest extent permitted by law.
(c) The Corporation shall pay the expenses (including attorneys'
fees and disbursements) actually and reasonably incurred in defending a civil or
criminal action, suit or proceeding on behalf of any person entitled to
indemnification under subsection (b) in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Corporation, and may pay such expenses in advance on
behalf of any agent on receipt of a similar undertaking. The financial ability
of such person to make such repayment shall not be a prerequisite to the making
of an advance.
(d) For purposes of this Section: (i) the Corporation shall be
deemed to have requested an officer, director, employee or agent to serve as
fiduciary with respect to an employee benefit plan where the performance by such
person of duties to the Corporation also imposes duties on, or otherwise
involves services by, such person as a fiduciary with respect to the plan; (ii)
excise taxes assessed with respect to any transaction with an employee benefit
plan shall be deemed "fines"; and (iii) action taken or omitted by such person
with respect to any employee benefit plan in the performance of duties for a
purpose reasonably 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.
<PAGE>
(e) To further effect, satisfy or secure the indemnification
obligations provided herein or otherwise, the Corporation may maintain
insurance, obtain a letter of credit, act as self-insurer, create a reserve,
trust, escrow, cash collateral or other fund or account, enter into
indemnification agreements, pledge or grant a security interest in any assets or
properties of the Corporation, or use any other mechanism or arrangement
whatsoever in such amounts, at such costs, and upon such other terms and
conditions as the Board of Directors shall deem appropriate.
(f) All rights of indemnification under this Section shall be
deemed a contract between the Corporation and the person entitled to
indemnification under this Section pursuant to which the Corporation and each
such person intend to be legally bound. Any repeal, amendment or modification
hereof shall be prospective only and shall not limit, but may expand, any rights
or obligations in respect of any proceeding whether commenced prior to or after
such change to the extent such proceeding pertains to actions or failures to act
occurring prior to such change.
(g) The indemnification, as authorized by this Section, shall not
be deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any statute, agreement, vote of
shareholder, or disinterested directors or otherwise, both as to action in an
official capacity and as to action in any other capacity while holding such
office. The indemnification and advancement of expenses provided by, or granted
pursuant to, this Section shall continue as to a person who has ceased to be an
officer, director, employee or agent in respect of matters arising prior to such
time, and shall inure to the benefit of the heirs, executors and administrators
of such person.
Stock of Other Corporations
36. The Board of Directors may authorize any director, officer or other
person on behalf of the Corporation to attend, act and vote at meetings of the
stockholders of any corporation in which the Corporation shall hold stock, and
to exercise thereat any and all of the rights and powers incident to the
ownership of such stock and to execute waivers of notice of such meetings and
calls therefor.
Certificate of Stock
37. The certificates of stock of the Corporation shall be numbered
and shall be entered in the books of the Corporation as they are issued.
They shall exhibit the holder's name and number of shares and may include his
address. No fractional shares of
<PAGE>
stock shall be issued. Certificates of stock shall be signed by the Chairman,
President or a Vice President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary, and shall be sealed with the seal of
the Corporation. Where any certificate of stock is signed by a transfer agent or
transfer clerk, who may be but need not be an officer or employee of the
Corporation, and by a registrar, the signature of any such Chairman, President,
Vice President, Secretary, Assistant Secretary, Treasurer, or Assistant
Treasurer upon such certificate who shall have ceased to be such before such
certificate of stock is issued, it may be issued by the Corporation with the
same effect as if such officer had not ceased to be such at the date of its
issue.
Transfer of Stock
38. Transfers of stock shall be made on the books of the Corporation only
by the person named in the certificate or by attorney, lawfully constituted in
writing, and upon surrender of the certificate therefor.
Fixing of Record Date
39. The Board of Directors is hereby authorized to fix a time, not
exceeding fifty (50) days preceding the date of any meeting of stockholders or
the date fixed for the payment of any dividend or the making of any
distribution, or for the delivery of evidences of rights or evidences of
interests arising out of any change, conversion or exchange of capital stock, as
a record time for the determination of the stockholders entitled to notice of
and to vote at such meeting or entitled to receive any such dividend,
distribution, rights or interests as the case may be; and all persons who are
holders of record of capital stock at the time so fixed and no others, shall be
entitled to notice of and to vote at such meeting, and only stockholders of
record at such time shall be entitled to receive any such notice, dividend,
distribution, rights or interests.
Registered Stockholders
40. The Corporation shall be entitled to treat the holder of record of
any share or shares of stock as the holder in fact thereof and accordingly shall
not be bound to recognize any equitable or other claim to, or interest in, such
share on the part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by statutes of the State of
Delaware.
Lost Certificates
41. Any person claiming a certificate of stock to be lost or
destroyed shall make an affidavit or affirmation of that fact,
<PAGE>
whereupon a new certificate may be issued of the same tenor and for the same
number of shares as the one alleged to be lost or destroyed; provided, however,
that the Board of Directors may require, as a condition to the issuance of a new
certificate, the payment of the reasonable expenses of such issuance or the
furnishing of a bond of indemnity in such form and amount and with such surety
or sureties, or without surety, as the Board of Directors shall determine, or
both the payment of such expenses and the furnishing of such bond, and may also
require the advertisement of such loss in such manner as the Board of Directors
may prescribe.
Inspection of Books
42. The Board of Directors may determine whether and to what extent, and
at what time the places and under what conditions and regulations, the accounts
and books of the Corporation (other than the books required by statute to be
open to the inspection of stockholders), or any of them, shall be open to the
inspection of stockholders, and no stockholder shall have any right to inspect
any account or book or document of the Corporation, except as such right may be
conferred by statutes of the State of Delaware or by the By-Laws or by
resolution of the Board of Directors or of the stockholders.
Checks, Notes, Bonds and Other Instruments
43. All checks or demands for money and notes of the Corporation shall be
signed by such person or persons (who may but need not be an officer of officers
of the Corporation) as the Board of Directors may from time to time designate,
either directly or through such officers of the Corporation as shall, by
resolution of the Board of Directors, be authorized to designate such person or
persons. If authorized by the Board of Directors, the signatures of such
persons, or any of them, upon any checks for the payment of money may be made by
engraving, lithographing or printing thereon a facsimile of such signatures, in
lieu of actual signatures, and such facsimile signatures so engraved,
lithographed or printed thereon shall have the same force and effect as if such
persons had actually signed the same.
44. All bonds, mortgages and other instruments requiring a seal, when
required in connection with matters which arise in the ordinary course of
business or when authorized by the Board of Directors, shall be executed on
behalf of the Corporation by the Chairman or the President or a Vice President,
and the seal of the Corporation shall be thereupon affixed by the Secretary or
an Assistant Secretary or the Treasurer or an Assistant Treasurer, who shall,
when required, attest the ensealing and execution of said instrument. If
authorized by the Board of Directors, a facsimile of the seal may be employed
and such
<PAGE>
facsimile of the seal may be engraved, lithographed or printed and shall have
the same force and effect as an impressed seal. If authorized by the Board of
Directors, the signatures of the Chairman or the President or a Vice President
and the Secretary or an Assistant Secretary or the Treasurer or Assistant
Treasurer upon any engraved, lithographed or printed bonds, debentures, notes or
other instruments may be made by engraving, lithographing or printing thereon a
facsimile of such signatures, in lieu of actual signatures, and such facsimile
signatures so engraved, lithographed or printed thereon shall have the same
force and effect as if such officers had actually signed the same. In case any
officer who has signed, or whose facsimile signature appears on, any such bonds,
debentures, notes or other instruments shall cease to be such officer before
such bonds, debentures, notes or other instruments shall have been delivered by
the Corporation, such bonds, debentures, notes or other instruments may
nevertheless be adopted by the Corporation and be issued and delivered as though
the person who signed the same, or whose facsimile signature appears thereon,
had not ceased to be such officer of the Corporation.
Receipts for Securities
45. All receipts for stocks, bonds or other securities received by the
Corporation shall be signed by the Treasurer or an Assistant Treasurer, or by
such other person or persons as the Board of Directors or Executive Committee
shall designate.
Fiscal Year
46. The fiscal year shall begin the first day of January in each
year.
Dividends
47. (a)Dividends in the form of cash or securities, upon the capital
stock of the Corporation, to the extent permitted by law may be declared by the
Board of Directors at any regular or special meeting.
(b) The Board of Directors shall have power to fix and determine,
and from time to time to vary, the amount to be reserved as working capital; to
determine whether any, and if any, what part of any, surplus of the Corporation
shall be declared as dividends; to determine the date or dates for the
declaration and payment or distribution of dividends; and, before payment of any
dividend or the making of any distribution to set aside out of the surplus of
the Corporation such amount or amounts as the Board of Directors from time to
time, in its absolute discretion, may think proper as a reserve fund to meet
<PAGE>
contingencies, or for equalizing dividends, or for such other purpose as it
shall deem to be in the interest of the Corporation.
Notices
48. (a)Whenever under the provisions of the By-Laws notice is required to
be given to any director, officer of stockholder, it shall not be construed to
require personal notice, but, except as otherwise specifically provided, such
notice may be given in writing, by mail, by depositing a copy of the same in a
post office, letter box or mail chute, maintained by the United States Postal
Service, postage prepaid, addressed to such stockholder, officer or director, at
his address as the same appears on the books of the Corporation.
(b) A stockholder, director or officer may waive in writing any
notice required to be given to him by law or by the By-Laws.
Participation in Meetings by Telephone
49. At any meeting of the Board of Directors or the Executive Committee
or any other committee designated by the Board of Directors, one or more
directors may participate in such meeting in lieu of attendance in person by
means of the conference telephone or similar communications equipment by means
of which all persons participating in the meeting will be able to hear and
speak.
Amendments
50. The By-Laws may be altered or amended by the affirmative vote of the
holders of a majority of the capital stock represented and entitled to vote at a
meeting of the stockholders duly held. The By-Laws may also be altered or
amended by the affirmative vote of a majority of the directors in office at a
meeting of the Board of Directors.
Exhibit B-209
CERTIFICATE OF INCORPORATION
OF
VICGAS HOLDINGS, INC.
----------------
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is VicGas Holdings, Inc.
SECOND: The address, including street, number, city and county, of the
registered office of the corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware 19801; and the name of
the registered agent of the corporation in the State of Delaware at such address
is The Corporation Trust 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
Elizabeth A. Quirk c/o Berlack, Israels & Liberman LLP
65 Madison Avenue
Morristown, New Jersey 07960
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 23rd day of February,
1999.
----------------------------------
Elizabeth A. Quirk
Sole Incorporator
Exhibit B-210
The Companies Acts 1985 and 1989
Company Limited by Shares
ARTICLES OF ASSOCIATION
OF
MIDLANDS ELECTRICITY PLC
Adopted by Written Special Resolution passed on 19 January 2000
-----------------------------------------------------------------------------
PRELIMINARY
1 The regulations contained in Table A in The Companies (Tables A to F)
Regulations 1985 (as amended so as to affect companies first registered on
the date of the adoption of these Articles) shall, except as hereinafter
provided and so far as not inconsistent with the provisions of these
Articles, apply to the Company to the exclusion of all other regulations
or Articles of Association. References herein to regulations are to
regulations in the said Table A unless otherwise stated.
SHARE CAPITAL
2 The share capital of the Company at the date of the adoption of these
Articles is 150,000,000 British pound sterling divided into 600,000,000
Ordinary Shares of 25p each.
3
3.1 Subject to Section 80 of the Act, all unissued shares shall be at
the disposal of the Directors and they may allot, grant options over
or otherwise dispose of them to such persons, at such times, and on
such terms as they think proper.
3.2
3.2.1 Pursuant to and in accordance with Section 80 of the Act, the
Directors shall be generally and unconditionally authorized to
exercise during the period of five years from the date of
adoption of these Articles all the powers of the Company to
allot relevant securities up to an aggregate nominal amount of
150,000,000 British pound sterling; and
3.2.2 by such authority the Directors may make offers or agreements
which would or might require the allotment of relevant
securities after the expiry of such period.
3.3 Any allotment made pursuant to Article 3.2 may be made as if Section
89(1) of the Act did not apply.
3.4 Words and expressions defined in or for the purposes of the said
Section 80 or the said Section 89 shall bear the same meanings in
this Article.
1
<PAGE>
PROCEEDINGS AT GENERAL MEETINGS
4 In the case of a corporation, a resolution in writing may be signed on its
behalf by a Director or the Secretary thereof or by its duly appointed
attorney or duly authorized representative. Regulation 53 shall be
extended accordingly. Regulation 53 (as so extended) shall apply mutatis
mutandis to resolutions in writing of any class of members of the Company.
5 The members shall be deemed to meet together if, being in separate
locations, they are nonetheless linked by conference telephone or other
communication equipment which allows those participating to hear and speak
and speak to each other. Such a meeting shall be deemed to take place
where the largest group of those participating is assembled, or, if there
is no such group, where the Chairman of the meeting then is.
6 An instrument appointing a proxy (and, where it is signed on behalf of the
appointor by an attorney, the letter or power of attorney or a duly
certified copy thereof) must either be delivered at such place or one of
such places (if any) as may be specified for that purpose in or by way of
note to the notice convening the meeting (or, if no place is so specified,
at the registered office) before the time appointed for holding the
meeting or adjourned meeting or (in the case of a poll taken otherwise
than at or on the same day as the meeting or adjourned meeting) for the
taking of the poll at which it is to be used, or be delivered to the
Secretary (or the chairman of the meeting) on the day and at the place of,
but in any event before the time appointed for holding, the meeting or
adjourned meeting or poll. The instrument may be in the form of a
facsimile or other machine-made copy and shall, unless the contrary is
stated thereon, be valid as well for any adjournment of the meeting as for
the meeting to which it relates. An instrument of proxy relating to more
than one meeting (including any adjournment thereof) having once been so
delivered for the purposes of any meeting shall not require again to be
delivered for the purposes of any subsequent meeting to which it relates.
Regulation 62 shall not apply.
7 At a general meeting, but subject to any rights or restrictions attached
to any shares, on a show of hands every member present in person or by
proxy (or being a corporation present by a duly authorized representative)
shall have one vote, and on a poll every member who is present in person
or by proxy shall have one vote for every share of which he is the holder.
Regulation 54 shall not apply.
NUMBER OF DIRECTORS
8 The directors shall number between four and eight as the members of the
Company may by Ordinary Resolution from time to time determine. The
Company may by Ordinary Resolution vary the minimum number and/or maximum
number of Directors. Regulation 64 shall be modified accordingly.
ALTERNATE DIRECTORS
9
9.1 Any Director (other than an alternate Director) may by notice in
writing to the Company appoint any other Director, or any other
person who is willing to act, to be an alternate Director and may
remove from office an alternate Director so appointed by him.
Regulation 65 shall not apply.
2
<PAGE>
9.2 An alternate Director shall be entitled to receive notices of
meetings of the Directors and of any committee of the Directors of
which his appointor is a member and shall be entitled to attend and
vote as a Director and be counted in the quorum at any such meeting
at which his appointor is not personally present and generally at
such meeting to perform all functions of his appointor as a Director
and for the purposes of the proceedings at such meeting the
provisions of these Articles shall apply as if he were a Director.
If he shall be himself a Director or shall attend any such meeting
as an alternate for more than one Director, his voting rights shall
be cumulative but he shall not be counted more than once for the
purposes of the quorum. The signature of the alternate Director to
any resolution in writing of the Directors shall be as effective as
the signature of his appointor. An alternate Director shall not
(save as aforesaid) have power to act as a Director, nor shall he be
deemed to be a Director for the purposes of these Articles, nor
shall he be deemed to be the agent of his appointor. Regulations 66
and 69 shall not apply.
9.3 An alternate Director shall be entitled to contract and be
interested in and benefit from contracts or arrangements or
transactions and to be repaid expenses and to be indemnified to the
same extent mutatis mutandis as if he were a Director but he shall
not be entitled to receive from the Company in respect of his
appointment as alternate Director any remuneration except only such
part (if any) of the remuneration otherwise payable to his appointor
as such appointor may by notice in writing to the Company from time
to time direct.
DELEGATION OF DIRECTORS' POWERS
10 In addition to the powers to delegate contained in Regulation 72, the
Directors may delegate any of their powers or discretions (including
without prejudice to the generality of the foregoing all powers and
discretions whose exercise involves or may involve the payment of
remuneration to or the conferring of any other benefit on all or any of
the Directors) to committees consisting of one or more Directors and (if
thought fit) one or more other named person or persons to be co-opted as
hereinafter provided. Insofar as any such power or discretion is delegated
to a committee, any reference in these Articles to the exercise by the
Directors of the power or discretion so delegated shall be read and
construed as if it were a reference to the exercise thereof by such
committee. Any committee so formed shall in the exercise of the powers so
delegated conform to any regulations which may from time to time be
imposed by the Directors. Any such regulations may provide for or
authorise the co-option to the committee of persons other than Directors
and may provide for members who are not Directors to have voting rights as
members of the committee but so that (a) the number of members who are not
Directors shall be less than one-half of the total number of members of
the committee and (b) no resolution of the committee shall be effective
unless passed by a majority including at least one member of the committee
who is a Director. Regulation 72 shall be modified accordingly.
APPOINTMENT AND RETIREMENT OF DIRECTORS
11 The Directors shall not be subject to retirement by rotation. Regulations
73 to 75 and the second and third sentences of Regulation 79 shall not
apply, and other references in the said Table A to retirement by rotation
shall be disregarded.
3
12 Any Director who reaches the age of 70 shall be required to vacate
office.
DISQUALIFICATION AND REMOVAL OF DIRECTORS
13 The office of a Director shall be vacated in any of the events specified
in Regulation 81 and also if he shall in writing offer to resign and the
Directors shall resolve to accept such offer or if he shall be removed
from office by notice in writing signed by his co-Directors (being at
least two in number), but so that if he holds an appointment to an
executive office which thereby automatically determines such removal shall
be deemed an act of the Company and shall have effect without prejudice to
any claim for damages for breach of any contract of service between him
and the Company.
14 Any provision of the Act which, subject to the provisions of the Articles,
would have the effect of rendering any person ineligible for appointment
or election as a Director or liable to vacate office as a Director on
account of his having reached any specified age or of requiring special
notice or any other special formality in connection with the appointment
or election of any Director over a specified age, shall not apply to the
Company.
REMUNERATION OF DIRECTORS
15 Any director who serves on any committee, or who otherwise performs
services which in the opinion of the Directors are outside the scope of
the ordinary duties of a Director, may be paid such extra remuneration by
way of salary, commission or otherwise or may receive such other benefits
as the Directors may determine. Regulation 82 shall be extended
accordingly.
PROCEEDINGS OF DIRECTORS
16 The quorum for the transaction of the business of the Directors shall be
four. A person who holds office only as an alternate Director shall, if
his appointor is not present, be counted in the quorum. Regulation 89
shall not apply.
17 The Directors, and any committee of the Directors, shall be deemed to meet
together if, being in separate locations, they are nonetheless linked by
conference telephone or other communication equipment which allows those
participating to hear and speak to each other, and a quorum in that event
shall be two four persons so linked. Such a meeting shall be deemed to
take place where the largest group of those participating is assembled or,
if there is no such group, where the chairman of the meeting then is.
18 On any matter in which a Director is in any way interested he may
nevertheless vote and be taken into account for the purposes of a quorum
provided that he has disclosed any interest he may have in accordance with
Section 317 of the Act and (save as otherwise agreed) may retain for his
own absolute use and benefit all profits and advantages directly or
indirectly accruing to him thereunder or in consequence thereof.
Regulations 94 to 98 shall not apply.
4
<PAGE>
19 Directors who are absent from the United Kingdom shall be entitled to the
same notice of all meetings of the Directors as Directors not so absent.
If a Director who is absent from the United Kingdom does not advise the
Company in writing of his overseas address, notice to his usual address in
the United Kingdom shall be deemed sufficient notice for the purposes of
this Article.
NOTICES
20 A member whose registered address is not within the United Kingdom shall
be entitled to have notices sent to him as if he were a member with a
registered address within the United Kingdom and the last sentence of
Regulation 112 shall not apply.
INDEMNITY
21
21.1 Subject to the provisions of and so far as may be permitted by law,
every Director, Secretary or other officer of the Company shall be
indemnified by the Company out of its own funds against and/or
exempted by the Company from all costs, charges, losses, expenses
and liabilities incurred by him in the actual or purported execution
and/or discharge of his duties and/or the exercise or purported
exercise of his powers and/or otherwise in relation to or in
connection with his duties, powers or office including (without
prejudice to the generality of the foregoing) any liability incurred
by him in defending any proceedings, civil or criminal, which relate
to anything done or omitted or alleged to have been done or omitted
by him as an officer or employee of the Company and in which
judgment is given in his favor (or the proceedings are otherwise
disposed of without any finding or admission of any material breach
of duty on his part) or in which he is acquitted or in connection
with any application under any statute for relief from liability in
respect of any such act or omission in which relief is granted to
him by the Court.
21.2 Without prejudice to paragraph 21.1 of this Article the Directors
shall have power to purchase and maintain insurance for or for the
benefit of any persons who are or were at any time Directors,
officers or employees of any Relevant Company (as defined in
paragraph 21.3 of this Article) or who are or were at any time
trustees of any pension fund or employees' share scheme in which
employees of any Relevant Company are interested, including (without
prejudice to the generality of the foregoing) insurance against any
liability incurred by such persons in respect of any act or omission
in the actual or purported execution and/or discharge of their
duties and/or in the exercise or purported exercise of their powers
and/or otherwise in relation to their duties, powers or offices in
relation to any Relevant Company, or any such pension fund or
employees' share scheme.
21.3 For the purpose of paragraph 21.2 of this Article Relevant Company
shall mean the Company, any holding company of the Company or any
other body, whether or not incorporated, in which the Company or
such holding company or any of the predecessors of the Company or of
such holding company has or had any interest whether direct or
indirect or which is in any way allied to or associated with the
Company, or any subsidiary undertaking of the Company or of such
other body.
5
<PAGE>
OVERRIDING PROVISIONS
22 Any member holding, or any members together holding, shares carrying not
less than 90 per cent of the votes which may for the time being be cast at
a general meeting of the Company may at any time and from time to time:
(a) appoint any person to be a Director (whether to fill a vacancy or
as an additional Director);
(b) remove from office any Director howsoever appointed but so that if he
holds an appointment to an executive office which thereby
automatically determines such removal shall be deemed an act of the
Company and shall have effect without prejudice to any claim for
damages for breach of any contract of service between him and the
Company;
(c) by notice to the Company require that no unissued shares shall be
issued or agreed to be issued or put under option without the consent
of such member or members;
(d) restrict any or all powers of the Directors in such respects and to
such extent as such member or members may by notice to the Company
from time to time prescribe.
Any such appointment, removal, consent or notice shall be in writing
served on the Company and signed by the member or members. No person
dealing with the Company shall be concerned to see or enquire as to
whether the powers of the Directors have been in any way restricted
hereunder or as to whether any requisite consent of such member or members
has been obtained and no obligation incurred or security given or
transaction effected by the Company to or with any third party shall be
invalid or ineffectual unless the third party had at the time express
notice that the incurring of such obligation or the giving of such
security or the effecting of such transaction was in excess of the powers
of the Directors.
To the extent of any inconsistency this Article shall have overriding
effects as against all other provisions of these Articles.
6
Exhibit B-211
Certificate of Registration
on Change of Name
Corporations Law Sub-section 171 (12)
This is to certify that
GAS TRANSMISSION CORPORATION (ASSETS) PTY
LTD
Australian Company Number 079 136 413
did on the third day of November 1997 change its name to
TRANSMISSION PIPELINES AUSTRALIA (ASSETS)
PTY LIMITED
Australian Company Number 079 136 413
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 thirtieth day of June, 1997.
Given under the seal of the Australian Securities
Commission on this third day of November, 1997.
Alan Cameron
Chairman
Exhibit B-212
Corporations Law of Victoria
Constitution
of
Transmission Pipelines Australia (Assets) Pty Ltd
(ACN 079 136 413)
A Company Limited by Shares
This constitution of 31 pages (including this cover sheet and
table of contents) is signed by me for the purpose of
identification as the document referred to in the special
resolution passed by Transmission Pipelines Australia
(Assets) Pty Ltd under section 249B(1) of the Corporations
Law on ------------ June 1999.
-------------------. ------------ June 1999
Rodney Keller Date
authorised representative and proxy of
the sole shareholder Gascor (TH) Pty
Ltd, formerly known as Transmission
Pipelines Australia (Holdings) Pty Ltd
(ACN 079 136 379)
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:FCO
<PAGE>
Contents
- --------------------------------------------------------------------------------
Part Page
1 Preliminary 1
Definitions 1
Interpretation 2
Replaceable Rules not to apply 2
Proprietary company 2
2 Share capital and variation of rights 3
Directors to issue shares 3
Preference shares 3
Variation of rights 4
Commission and brokerage 4
Recognition and disclosure of interests 5
Right to share and option certificate 5
Joint holders of shares 5
3 Lien 5
Lien on share 5
Sale under lien 5
Transfer on sale under lien 6
Proceeds of sale 6
4 Calls on shares 6
Directors to make calls 6
Time of call 6
Members' liability 7
Interest on default 7
Fixed instalments deemed calls 7
Differentiation between shareholders as to calls 7
Prepayment of calls 7
5 Transfer of shares 8
Forms of instrument of transfer 8
Registration procedure 8
Directors may decline to register 8
6 Transmission of shares 8
Transmission of shares on death of holder 8
Right to registration on death or bankruptcy 8
Effect of transmission 9
7 Forfeiture of shares 9
Notice requiring payment of call 9
Forfeiture for failure to comply with notice 10
Cancellation of forfeiture 10
Effect of forfeiture on former holder's liability 10
Evidence of forfeiture 10
Transfer of forfeited share 11
8 Conversion of shares into stock (No longer applicable - post Corporate Law
Review Act 1998) 11
9 Alteration of capital (No longer applicable - Corporate Law Review Act 1998)
11
<PAGE>
10 General meetings 11
Annual general meeting 11
General meeting 11
Notice of general meeting 11
Special business of general meeting 11
Requisitioned meeting 12
Objects of requisitioned meeting 12
Convening requisitioned meeting 12
Expenses of requisitioned meeting 12
Postponement or cancellation of meeting 12
11 Proceedings at general meetings 13
Representation of Member 13
Quorum 13
Failure to achieve quorum 13
Appointment and powers of chairman of general meeting 14
Adjournment of general meeting 14
Voting at general meeting 14
Questions decided by majority 15
Poll 15
Equality of votes 15
Entitlement to vote 15
Joint shareholders' vote 16
Vote of shareholder of unsound mind 16
Effect of unpaid call 16
Objection to voting qualification 16
Appointment of proxy 16
Deposit of proxy and other instruments 17
Validity of vote in certain circumstances 17
Director entitled to notice of meeting 17
Resolution in writing 17
12 The Directors 17
Number of Directors 17
Share qualification of Directors 17
Appointment of Director 18
Removal of Director 18
Remuneration of Directors 18
Director's interests 18
Vacation of office of Director 19
13 Powers and duties of Directors 20
Directors to manage Company 20
Appointment of attorney 20
Minutes 20
Execution of Company cheques etc 21
14 Proceedings of Directors 21
Directors' meetings 21
Questions decided by majority 21
Alternate Directors 21
Quorum for Directors' meetings 22
Remaining Directors may act 22
Chairman of Directors 23
Directors' committees 23
Written resolution by Directors 24
Directors' meetings defined 24
Validity of acts of Directors 24
Appointment of Managing and Executive Directors 24
Remuneration of Managing and Executive Directors 25
Powers of Managing and Executive Directors 25
<PAGE>
15 Secretary 25
Appointment of Secretary 25
Suspension and removal of Secretary 25
Powers and duties of Secretary 25
Secretary to attend meetings 25
16 Common seal and duplicate common seal 25
Custody of common seal 25
Use of common seal 26
Duplicate common seal 26
17 Inspection of records 26
Inspection by Members 26
18 Dividends and reserves 26
Payment of dividend 26
No interest on dividends 26
Reserves and profits carried forward 26
Calculation and apportionment of dividends 27
Deductions from dividends 27
Distribution of specific assets 27
Payment by cheque and receipts from joint holders 28
Unclaimed dividends 28
19 Capitalisation of profits 28
Capitalisation of reserves and profits 28
20 Notices 29
Service of notices 29
Persons entitled to notice of general meeting 29
21 Winding up 30
Distribution of assets 30
22 Indemnity 30
Indemnity of officers 30
<PAGE>
Corporations Law of Victoria
Constitution
of
Transmission Pipelines Australia (Assets) Pty Ltd
(ACN 079 136 413)
A Company Limited by Shares
1 Preliminary
Definitions
1.1 The following words have these meanings in this Constitution
unless the contrary intention appears.
Alternate Director means a person appointed as alternate
director under Article 14.6;
Article means an Article of this Constitution;
Constitution means this Constitution 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 above named 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;
Part means a Part of this Constitution;
Register means the register of members of the Company to be
kept under the Corporations Law and if appropriate includes a
branch register;
Registered Office means the registered office for the time
being of the Company;
<PAGE>
2
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 this Constitution:
(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 the Constitution, an
expression has, in a provision of the Constitution 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 the Constitution.
1.5 This Constitution is divided into Parts as indicated by its
index.
Replaceable Rules not to apply
1.6 The provisions of the Corporations Law that apply as
replaceable rules are displaced by this Constitution and
accordingly do not apply to the Company.
Proprietary company
1.7 The Company is a proprietary company and accordingly:
(a) the number of Members:
(i) counting joint holders of shares in the company
as one person; and
(ii) excluding:
<PAGE>
3
(A)
each Member who is an employee of the Company or
of a subsidiary of the Company; and
(B) each Member who became a Member at a time
when that Member was an employee of the
Company or of a subsidiary of the Company,
must not exceed 50; and
(b) the Company may not engage in anything that would
require the lodgement of a prospectus under Part 7.12 of
the Corporations Law, other than an offer of shares to:
(i) a Member; or
(ii) a person in the employment of the Company or of a
subsidiary of the Company.
2 Share capital and variation of rights
Directors to issue shares
2.1 Subject to the Corporations Law, the Listing Rules, this
Constitution and any special rights conferred on the holders
of any shares or class of shares:
(a) the issue of shares in the Company is under the control
of the Directors and the Directors may issue or dispose
of shares 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 as the Directors think
fit;
(b) the Directors may grant to any person an option over
shares or pre-emptive rights during such time and for
such consideration as they think fit; and
(c) the Directors have the right to settle the manner in
which fractions of a share, however arising, are to be
dealt with.
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
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4
other shares or other classes of preference shares are set out
in the Constitution. 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 the Constitution 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:
(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.
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5
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 the Constitution 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 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
Lein 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 Articles3.1 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.
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6
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 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.
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7
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.
f.1 The joint holders of a share are jointly and severally
liable to pay all calls in respect of the share.
f.2 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
f.3 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 the Constitution 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 the Constitution 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
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8
(b) in any other case - 20% per annum.
5 Transfer of shares
Forms of instrument of transfer
5.1 Subject to the Constitution, 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 the
Constitution, 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
<PAGE>
9
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 the
Constitution 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 the Constitution, 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
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10
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.
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 Constitution 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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11
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 (No longer applicable - post Corporate Law
Review Act 1998)
8 Conversion of shares into stock (No longer applicable - post Corporate
Law Review Act 1998)
9 Alteration of capital (No longer applicable - Corporate Law Review Act
1998)
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 21 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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12
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 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).
13
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.
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.
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14
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.
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 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:
(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
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15
(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.
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 the
Constitution:
(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).
<PAGE>
16
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.
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.
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17
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 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 nor, subject
to a resolution of the Company in general meeting in
accordance with this Article 12.1, more than 6. The Directors
in office at the time this Constitution is adopted will
continue in office subject to the Constitution. 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.
<PAGE>
18
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 the
Constitution, 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 dependants
or persons connected with them.
<PAGE>
19
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.
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:
<PAGE>
20
(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
the Constitution 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 the Constitution,
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, and cause those minutes to be
entered, within one month after the relevant meeting
is held, in the minute book.
<PAGE>
21
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 the Constitution, 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.
<PAGE>
22
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.
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.
<PAGE>
23
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,
(c) 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 a majority of votes of the members involved and
voting.
<PAGE>
24
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.
If the Company has only one Director:
(a) the Director may pass a resolution by recording it and
signing the record; and
(b) the Director may make a declaration by recording it
and signing the record.
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.
<PAGE>
25
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
Appointmant 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 in all meetings of the
Directors and all general meetings of the Company and may be
heard on any matter.
16 Common seal and duplicate common seal
Custody of common seal
16.1 If the Company has a common seal, the Directors must provide
for its safe custody.
<PAGE>
26
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.
Duplicate common seal
16.3 The Company may have for use outside the State in place of the
common seal a duplicate common seal which must be a copy of
the common seal with the addition on its face the words
"duplicate seal", "share seal" or "certificate seal" added.
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
Payment of dividend
18.1 Subject to the Corporations Law, this Constitution and the
rights of persons (if any) entitled to shares with special
rights to dividend, the Directors may determine that a
dividend is payable, fix the amount and the time for payment
and authorise the payment or crediting by the Company to, or
at the direction of, each Member entitled thereto of that
dividend.
No interest on dividends
18.2 Interest may not be paid by the Company in respect of any
dividend.
Reserves and profits carried forward
18.3 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
<PAGE>
27
Directors, for any purpose for which the profits of the
Company may be properly applied.
18.4 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.
18.5 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
18.6 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.
18.7 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
18.8 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
18.9 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.
18.10 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.
<PAGE>
28
Payment by cheque and receipts from joint holders
18.11 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.
18.12 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
18.13 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).
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
<PAGE>
29
(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 the Constitution 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.
20.7 No other person is entitled to receive notices of
general meetings.
<PAGE>
30
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 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.
<PAGE>
31
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.
Exhibit B-213
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "GPU GENERATION SERVICES - PASCO, INC.", FILED IN THIS OFFICE
ON THE FIFTH DAY OF APRIL, A.D. 1999, AT 10 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
-----------------------------------
Edward J. Freel, Secretary of State
3025013 8100 9667790
AUTHENTICATION:
991130152 DATE: 04-05-99
<PAGE>
CERTIFICATE OF INCORPORATION
OF
GPU GENERATION SERVICES - PASCO, 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 Generation Services - Pasco, Inc.
SECOND: The address, including street, number, city and county, of the
------ registered office of the Corporation in the State of Delaware
is: Corporation Trust Center, 1209 Orange Street, 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 The Corporation Trust Company.
THIRD: The purpose of the corporation is 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 one hundred (100) shares, all of
which are without par value. All such shares are of one class and are shares of
Common Stock.
1
<PAGE>
FIFTH: The name and the mailing address of the incorporator are as follows
-----
NAME MAILING ADDRESS
James L. Howard c/o GPU International, Inc.
One Upper Pond Road
Parsippany, NJ 07054
SIXTH: The board of directors of the corporation is expressly authorized to
----- adopt, amend or repeal by-laws of the corporation.
SEVENTH: The personal liability of the directors of the corporation is
-------- hereby eliminated to the fullest extent permitted by the
provisions of paragraph (7) of the subsection (b) of 102 British pounds of the
General Corporation Law of the State of Delaware, as the same may be amended and
supplemented.
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 2nd day of April,
1999.
----------------------
James L. Howard
Sole Incorporator
2
Exhibit B-214
BY-LAWS
OF
GPU GENERATION SERVICES - PASCO, INC.
Offices
-------
1. The principal office of GPU GENERATION SERVICES - PASCO, INC. (the
"Corporation") shall be in Parsippany, New Jersey. The Corporation may also have
offices at other 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 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
<PAGE>
at which an election of directors is to be held, the Board of Directors shall
appoint one judge of election to serve at such meeting. If there be a failure to
appoint a judge or if such judge be absent or refuse to act or if his office
becomes vacant, the stockholders present at the meeting, by a per capita vote,
shall choose temporary judges of the number required. No director or officer of
the Corporation shall be eligible to appointment or election as a judge.
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
<PAGE>
to a corporation controlled by the Corporation through stock ownership or
through majority representation on the board of directors thereof, shall not be
voted. All elections shall be determined by a plurality vote, and, except as
otherwise provided by law or by the Certificate of Incorporation all other
matters shall be determined by a vote of the holders of a majority of the shares
of the capital stock present or represented at a meeting and voting on such
questions.
7. A complete list of the stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order, with the residence of each, and
the number of shares held by each, shall be prepared by the Secretary and filed
in the principal office of the Corporation at least fifteen days before the
meeting, and shall be open to the examination of any 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
<PAGE>
corporate action being taken, and all such consents shall be filed with the
Secretary of the Corporation. However, this section shall not be construed to
alter or modify any provision of law or of the Certificate of Incorporation
under which the written consent of the holders of less than all outstanding
shares is sufficient for corporate action.
Directors
---------
10. The business and affairs of the Corporation shall be managed by its
Board of Directors, which shall consist of not less than one nor more than nine
directors as shall be fixed from time to time by a resolution adopted by a
majority of the entire Board of Directors; provided, however, that no decrease
in the number of directors constituting the entire Board of Directors shall
shorten the term of any incumbent director. Each director shall be at least
twenty-one years of age. Directors need not be stockholders of the Corporation.
Directors shall be elected at the annual meeting of stockholders, or, if any
such election shall not be held, at a stockholders' meeting called and held in
accordance with the provisions of the General Corporation Law of 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
Certificate of Incorporation, as amended, or by the By-Laws.
17. Any regular or special meeting may be adjourned to any time or place
by a majority of the directors present at the meeting, whether or not a quorum
shall be present at such meeting, and no notice of the adjourned meeting shall
be required other than announcement at the meeting.
Committees
----------
18. The Board of Directors may, by the vote of a majority of the
directors in office, create an Executive Committee, consisting of two or more
members, of whom one shall be the chief executive officer of the Corporation.
The other members of the Executive Committee shall be designated by the Board of
Directors from their number, shall hold office for such period as the Board of
Directors shall determine and may be removed at any time by the Board of
Directors. When a member of the Executive Committee ceases to be a director, he
shall cease to be a member
<PAGE>
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 for 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 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
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;
<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 38 of the By-Laws, attend in
person or by substitute or proxy appointed by him and act and
vote on behalf of the Corporation at all meetings of the
stockholders of any corporation in which the Corporation holds
stock and grant any consent, waiver, or power of attorney in
respect of such stock;
(iv)he shall, whenever it may in his opinion be necessary or
appropriate, prescribe the duties of officers and employees of
the Corporation whose duties are not otherwise defined; and
(v) he shall have such other powers and perform such other
duties as may be prescribed from time to time by law, by the
By-Laws, or by the Board of Directors.
(c) If the Chairman shall be designated by the Board of
Directors as chief executive officer of the Corporation, the
President:
(i) shall be the chief operating officer of the Corporation;
(ii) shall have supervision, direction and control of the
conduct of the business of the Corporation, in the absence or
disability of the Chairman, subject, however, to the control
of the Board of Directors and the Executive Committee, if
there be one;
(iii) may sign in the name and on behalf of the Corporation
any and all contracts, agreements or other instruments
pertaining to matters which arise in the ordinary course of
business of the Corporation, and, when authorized by the Board
of Directors or the Executive Committee, if there be one, may
sign in the name and on behalf of the Corporation any and all
contracts, agreements or other instruments of any nature
pertaining to the business of the Corporation;
(iv) at the request or in the absence or disability of the
Chairman, may, unless otherwise directed by the Board of
Directors pursuant to Section 38 of the By-Laws, attend in
person or by substitute or proxy appointed by him and act and
vote on behalf of the Corporation at all meetings of the
stockholders of any corporation in which the Corporation holds
stock and grant any consent, waiver or power of attorney in
respect of such stock;
(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.
(d) He shall exhibit at all reasonable times his accounts and
records to any director of the Corporation upon application during business
hours at the office of the Corporation where such accounts and records are kept.
<PAGE>
(e) He shall render an account of all his transactions as
Treasurer at all regular meetings of the Board of Directors, or whenever the
Board may require it, and at such other times as may be requested by the Board
or by any director of the Corporation.
(f) If required by the Board of Directors, he shall give the
Corporation a bond, the premium on which shall be paid by the Corporation, in
such form and amount and with such surety or sureties as shall be satisfactory
to the Board, for the faithful performance of the duties of his office, and for
the restoration to the Corporation in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other property
of whatever kind in his possession or under his control belonging to the
Corporation.
(g) He shall perform all duties generally incident to the office
of Treasurer, and shall have other powers and duties as from time to time may be
prescribed by law, by the By-Laws, or by the Board of Directors.
(h) Any Assistant Treasurer or Assistant Treasurers shall assist
the Treasurer in the performance of his duties, shall exercise his powers and
duties at his request or in his absence or disability, and shall exercise such
other powers and duties as may be prescribed by the Board of Directors. If
required by the Board of Directors, any Assistant Treasurer shall give the
Corporation a bond, the premium on which shall be paid by the Corporation,
similar to that which may be required to be given by the Treasurer.
Comptroller
-----------
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.
(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
<PAGE>
money or securities of the Corporation, which shall be in the custody of the
Treasurer.
(d) He shall exhibit at all reasonable times his books of account
and records to any director of the Corporation upon application during business
hours at the office of the Corporation where such books of account and records
are kept.
(e) He shall render reports of the operations and business and of
the condition of the finances of the Corporation at regular meetings of the
Board of Directors, and at such other times as he may be requested by the Board
or any director of the Corporation, and shall render a full financial report at
the annual meeting of the stockholders, if called upon to do so.
(f) He shall receive and keep in his custody an original copy of
each written contract made by or on behalf of the Corporation.
(g) He shall receive periodic reports from the Treasurer of the
Corporation of all receipts and disbursements, and shall see that correct
vouchers are taken for all disbursements for any purpose.
(h) He shall perform all duties generally incident to the office
of Comptroller, and shall have such other powers and duties as from time to time
may be prescribed by law, by the By-Laws, or by the Board of Directors.
(i) Any Assistant Comptroller or Assistant Comptrollers shall
assist the Comptroller in the performance of his duties, shall exercise his
powers and duties at his request or in his absence or disability and shall
exercise such other powers and duties as may be conferred or required by the
Board of Directors. If required by the Board of Directors, any Assistant
Comptroller shall give the Corporation a bond, the premium on which shall be
paid by the Corporation, similar to that which may be required to be given by
the Comptroller.
Vacancies
---------
34. If the office of any director becomes vacant by reason of death,
resignation, retirement, disqualification, or otherwise, the remaining
directors, by the vote of a majority of those then in office at a meeting, the
notice of which shall have 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,
<PAGE>
the Board of Directors, at a meeting, the notice of which shall have specified
the filling of such vacancy as one of its purposes, may choose a successor who
shall hold office for the unexpired term in respect of which such vacancy
occurred. Pending action by the Board of Directors at such meeting, the Board of
Directors or the Executive Committee may choose a successor temporarily to serve
as an officer of the Corporation.
Resignations
------------
35. Any officer or any director of the Corporation may resign at any
time, such resignation to be made in writing and transmitted to the Secretary.
Such resignation shall take effect from the time of its acceptance, unless some
time be fixed in the resignation, and then from that time. Nothing herein shall
be deemed to relieve any officer from liability for breach of any contract of
employment resulting from any such resignation.
Duties of Officers May be Delegated
-----------------------------------
36. In case of the absence or disability of any officer of the
Corporation, or for any other reason the Board of Directors may deem sufficient,
the Board, by vote of a majority of the total number of directors provided for
in Section 10 of the By-Laws may, notwithstanding any provisions of the By-Laws,
delegate or assign, for the time being, the powers or duties, or any of them, of
such officer to any other officer or to any director.
Indemnification of Directors, Officers and Employees
----------------------------------------------------
37. (a)A director shall not be personally liable for monetary damages as
such for any action taken, or any failure to take any action, unless the
director has breached or failed to perform the duties of his office under the
General Corporation Law of the State of Delaware, and the breach or failure to
perform constitutes self-dealing, willful misconduct or recklessness. The
provisions of this subsection (a) shall not apply to the responsibility or
liability of a director pursuant to any criminal statute, or the liability of a
director for the payment of taxes pursuant to local, state or federal law.
(b) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, whether formal or informal, and whether brought by or in the
right of the Corporation or otherwise, by reason of the fact that he was a
director, officer or employee of the Corporation (and may
<PAGE>
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 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
<PAGE>
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.
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
<PAGE>
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.
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
<PAGE>
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 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
<PAGE>
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.
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
<PAGE>
contingencies, or for equalizing dividends, or for such other purpose as it
shall deem to be in the interest of the Corporation.
Directors' Annual Statement
---------------------------
49. The Board of Directors shall present or cause to be presented at each
annual meeting of stockholders, and when called for by vote of the stockholders
at any special meeting of the stockholders, a full and clear statement of the
business and condition of the Corporation.
Notices
-------
50. (a)Whenever under the provisions of the By-Laws notice is required to
be given to any director, officer of stockholder, it shall not be construed to
require personal notice, but, except as otherwise specifically provided, such
notice may be given in writing, by mail, by depositing a copy of the same in a
post office, letter box or mail chute, maintained by the United States Postal
Service, postage prepaid, addressed to such stockholder, officer or director, at
his address as the same appears on the books of the Corporation.
(b) A stockholder, director or officer may waive in writing any
notice required to be given to him by law or by the By-Laws.
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.
<PAGE>
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-215
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "GPU GENERATION SERVICES - LAKE, INC.", FILED IN THIS OFFICE ON
THE FIFTH DAY OF APRIL, A.D. 1999, AT 10 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
-----------------------------------
Edward J. Freel, Secretary of State
3025012 8100 9667702
AUTHENTICATION:
991130148 DATE: 04-05-99
<PAGE>
CERTIFICATE OF INCORPORATION
OF
GPU GENERATION SERVICES - LAKE, 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 Generation Services - Lake, Inc.
SECOND: The address, including street, number, city and county, of the
------ registered office of the Corporation in the State of Delaware
is: Corporation Trust Center, 1209 Orange Street, 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 The Corporation Trust Company.
THIRD: The purpose of the corporation is 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 one hundred (100) shares, all of
which are without par value. All such shares are of one class and are shares of
Common Stock.
1
<PAGE>
FIFTH: The name and the mailing address of the incorporator are as
----- follows
NAME MAILING ADDRESS
---- ----------------
James L. Howard c/o GPU International, Inc.
One Upper Pond Road
Parsippany, NJ 07054
SIXTH: The board of directors of the corporation is expressly
authorized to adopt, amend or repeal by-laws of the corporation.
SEVENTH: The personal liability of the directors of the corporation is
-------
hereby eliminated to the fullest extent permitted by the provisions of paragraph
(7) of the subsection (b) of 102 British pounds of the General Corporation Law
of the State of Delaware, as the same may be amended and supplemented.
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 2nd day of April,
1999.
----------------------
James L. Howard
Sole Incorporator
2
Exhibit B-216
BY-LAWS
OF
GPU GENERATION SERVICES - LAKE, INC.
Offices
-------
1. The principal office of GPU GENERATION SERVICES - LAKE, INC. (the
"Corporation") shall be in Parsippany, New Jersey. The Corporation may also have
offices at other 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 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
<PAGE>
at which an election of directors is to be held, the Board of Directors shall
appoint one judge of election to serve at such meeting. If there be a failure to
appoint a judge or if such judge be absent or refuse to act or if his office
becomes vacant, the stockholders present at the meeting, by a per capita vote,
shall choose temporary judges of the number required. No director or officer of
the Corporation shall be eligible to appointment or election as a judge.
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
<PAGE>
to a corporation controlled by the Corporation through stock ownership or
through majority representation on the board of directors thereof, shall not be
voted. All elections shall be determined by a plurality vote, and, except as
otherwise provided by law or by the Certificate of Incorporation all other
matters shall be determined by a vote of the holders of a majority of the shares
of the capital stock present or represented at a meeting and voting on such
questions.
7. A complete list of the stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order, with the residence of each, and
the number of shares held by each, shall be prepared by the Secretary and filed
in the principal office of the Corporation at least fifteen days before the
meeting, and shall be open to the examination of any 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
<PAGE>
corporate action being taken, and all such consents shall be filed with the
Secretary of the Corporation. However, this section shall not be construed to
alter or modify any provision of law or of the Certificate of Incorporation
under which the written consent of the holders of less than all outstanding
shares is sufficient for corporate action.
Directors
---------
10. The business and affairs of the Corporation shall be managed by its
Board of Directors, which shall consist of not less than one nor more than nine
directors as shall be fixed from time to time by a resolution adopted by a
majority of the entire Board of Directors; provided, however, that no decrease
in the number of directors constituting the entire Board of Directors shall
shorten the term of any incumbent director. Each director shall be at least
twenty-one years of age. Directors need not be stockholders of the Corporation.
Directors shall be elected at the annual meeting of stockholders, or, if any
such election shall not be held, at a stockholders' meeting called and held in
accordance with the provisions of the General Corporation Law of 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
Certificate of Incorporation, as amended, or by the By-Laws.
17. Any regular or special meeting may be adjourned to any time or place
by a majority of the directors present at the meeting, whether or not a quorum
shall be present at such meeting, and no notice of the adjourned meeting shall
be required other than announcement at the meeting.
Committees
----------
18. The Board of Directors may, by the vote of a majority of the
directors in office, create an Executive Committee, consisting of two or more
members, of whom one shall be the chief executive officer of the Corporation.
The other members of the Executive Committee shall be designated by the Board of
Directors from their number, shall hold office for such period as the Board of
Directors shall determine and may be removed at any time by the Board of
Directors. When a member of the Executive Committee ceases to be a director, he
shall cease to be a member
<PAGE>
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 for 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 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
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;
<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 38 of the By-Laws, attend in
person or by substitute or proxy appointed by him and act and
vote on behalf of the Corporation at all meetings of the
stockholders of any corporation in which the Corporation holds
stock and grant any consent, waiver, or power of attorney in
respect of such stock;
(iv)he shall, whenever it may in his opinion be necessary or
appropriate, prescribe the duties of officers and employees of
the Corporation whose duties are not otherwise defined; and
(v) he shall have such other powers and perform such other
duties as may be prescribed from time to time by law, by the
By-Laws, or by the Board of Directors.
(c) If the Chairman shall be designated by the Board of
Directors as chief executive officer of the Corporation, the
President:
(i) shall be the chief operating officer of the Corporation;
(ii) shall have supervision, direction and control of the
conduct of the business of the Corporation, in the absence or
disability of the Chairman, subject, however, to the control
of the Board of Directors and the Executive Committee, if
there be one;
(iii) may sign in the name and on behalf of the Corporation
any and all contracts, agreements or other instruments
pertaining to matters which arise in the ordinary course of
business of the Corporation, and, when authorized by the Board
of Directors or the Executive Committee, if there be one, may
sign in the name and on behalf of the Corporation any and all
contracts, agreements or other instruments of any nature
pertaining to the business of the Corporation;
(iv) at the request or in the absence or disability of the
Chairman, may, unless otherwise directed by the Board of
Directors pursuant to Section 38 of the By-Laws, attend in
person or by substitute or proxy appointed by him and act and
vote on behalf of the Corporation at all meetings of the
stockholders of any corporation in which the Corporation holds
stock and grant any consent, waiver or power of attorney in
respect of such stock;
(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.
(d) He shall exhibit at all reasonable times his accounts and
records to any director of the Corporation upon application during business
hours at the office of the Corporation where such accounts and records are kept.
<PAGE>
(e) He shall render an account of all his transactions as
Treasurer at all regular meetings of the Board of Directors, or whenever the
Board may require it, and at such other times as may be requested by the Board
or by any director of the Corporation.
(f) If required by the Board of Directors, he shall give the
Corporation a bond, the premium on which shall be paid by the Corporation, in
such form and amount and with such surety or sureties as shall be satisfactory
to the Board, for the faithful performance of the duties of his office, and for
the restoration to the Corporation in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other property
of whatever kind in his possession or under his control belonging to the
Corporation.
(g) He shall perform all duties generally incident to the office
of Treasurer, and shall have other powers and duties as from time to time may be
prescribed by law, by the By-Laws, or by the Board of Directors.
(h) Any Assistant Treasurer or Assistant Treasurers shall assist
the Treasurer in the performance of his duties, shall exercise his powers and
duties at his request or in his absence or disability, and shall exercise such
other powers and duties as may be prescribed by the Board of Directors. If
required by the Board of Directors, any Assistant Treasurer shall give the
Corporation a bond, the premium on which shall be paid by the Corporation,
similar to that which may be required to be given by the Treasurer.
Comptroller
-----------
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.
(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
<PAGE>
money or securities of the Corporation, which shall be in the custody of the
Treasurer.
(d) He shall exhibit at all reasonable times his books of account
and records to any director of the Corporation upon application during business
hours at the office of the Corporation where such books of account and records
are kept.
(e) He shall render reports of the operations and business and of
the condition of the finances of the Corporation at regular meetings of the
Board of Directors, and at such other times as he may be requested by the Board
or any director of the Corporation, and shall render a full financial report at
the annual meeting of the stockholders, if called upon to do so.
(f) He shall receive and keep in his custody an original copy of
each written contract made by or on behalf of the Corporation.
(g) He shall receive periodic reports from the Treasurer of the
Corporation of all receipts and disbursements, and shall see that correct
vouchers are taken for all disbursements for any purpose.
(h) He shall perform all duties generally incident to the office
of Comptroller, and shall have such other powers and duties as from time to time
may be prescribed by law, by the By-Laws, or by the Board of Directors.
(i) Any Assistant Comptroller or Assistant Comptrollers shall
assist the Comptroller in the performance of his duties, shall exercise his
powers and duties at his request or in his absence or disability and shall
exercise such other powers and duties as may be conferred or required by the
Board of Directors. If required by the Board of Directors, any Assistant
Comptroller shall give the Corporation a bond, the premium on which shall be
paid by the Corporation, similar to that which may be required to be given by
the Comptroller.
Vacancies
---------
34. If the office of any director becomes vacant by reason of death,
resignation, retirement, disqualification, or otherwise, the remaining
directors, by the vote of a majority of those then in office at a meeting, the
notice of which shall have 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,
<PAGE>
the Board of Directors, at a meeting, the notice of which shall have specified
the filling of such vacancy as one of its purposes, may choose a successor who
shall hold office for the unexpired term in respect of which such vacancy
occurred. Pending action by the Board of Directors at such meeting, the Board of
Directors or the Executive Committee may choose a successor temporarily to serve
as an officer of the Corporation.
Resignations
------------
35. Any officer or any director of the Corporation may resign at any
time, such resignation to be made in writing and transmitted to the Secretary.
Such resignation shall take effect from the time of its acceptance, unless some
time be fixed in the resignation, and then from that time. Nothing herein shall
be deemed to relieve any officer from liability for breach of any contract of
employment resulting from any such resignation.
Duties of Officers May be Delegated
-----------------------------------
36. In case of the absence or disability of any officer of the
Corporation, or for any other reason the Board of Directors may deem sufficient,
the Board, by vote of a majority of the total number of directors provided for
in Section 10 of the By-Laws may, notwithstanding any provisions of the By-Laws,
delegate or assign, for the time being, the powers or duties, or any of them, of
such officer to any other officer or to any director.
Indemnification of Directors, Officers and Employees
----------------------------------------------------
37. (a)A director shall not be personally liable for monetary damages as
such for any action taken, or any failure to take any action, unless the
director has breached or failed to perform the duties of his office under the
General Corporation Law of the State of Delaware, and the breach or failure to
perform constitutes self-dealing, willful misconduct or recklessness. The
provisions of this subsection (a) shall not apply to the responsibility or
liability of a director pursuant to any criminal statute, or the liability of a
director for the payment of taxes pursuant to local, state or federal law.
(b) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, whether formal or informal, and whether brought by or in the
right of the Corporation or otherwise, by reason of the fact that he was a
director, officer or employee of the Corporation (and may
<PAGE>
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 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
<PAGE>
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.
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
<PAGE>
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.
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
<PAGE>
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 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
<PAGE>
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.
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
<PAGE>
contingencies, or for equalizing dividends, or for such other purpose as it
shall deem to be in the interest of the Corporation.
Directors' Annual Statement
---------------------------
49. The Board of Directors shall present or cause to be presented at each
annual meeting of stockholders, and when called for by vote of the stockholders
at any special meeting of the stockholders, a full and clear statement of the
business and condition of the Corporation.
Notices
-------
50. (a)Whenever under the provisions of the By-Laws notice is required to
be given to any director, officer of stockholder, it shall not be construed to
require personal notice, but, except as otherwise specifically provided, such
notice may be given in writing, by mail, by depositing a copy of the same in a
post office, letter box or mail chute, maintained by the United States Postal
Service, postage prepaid, addressed to such stockholder, officer or director, at
his address as the same appears on the books of the Corporation.
(b) A stockholder, director or officer may waive in writing any
notice required to be given to him by law or by the By-Laws.
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.
<PAGE>
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 C-8
GPU SERVICE, INC.
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
As Amended Effective July 1, 1999
<PAGE>
TABLE OF CONTENTS
Page
Foreword 1
Section 1 - Definitions 2
Section 2 - Application and Basis of the Plan 6
Section 3 - Payment of Benefits 7
Section 4 - Administration 14
Section 5 - Amendment and Termination 15
<PAGE>
GPU SERVICE, INC.
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
(As amended effective July 1, 1999)
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 Companies 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
(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.
1
<PAGE>
SECTION 1
Definitions
1.1 Except to the extent otherwise indicated, the definitions contained in
Section l of the Pension Plan are applicable under the Plan.
1.2 Board of Directors: The term Board of Directors shall mean the Board
of Directors of the Company.
1.3 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 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
2
<PAGE>
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 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
3
<PAGE>
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 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 actually 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.
4
<PAGE>
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 actually
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.
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.
5
<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 describe 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.
6
<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) 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
or Section 3.3(b)(ii) below, 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 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
7
<PAGE>
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 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,
8
<PAGE>
(ii) if the Employee's Pension Plan benefits are payable in
accordance with Option 1 or 2, as described in Section 10.1 of
the Pension Plan, divide the amount determined in (i) by the
complement of the reduction percentage applied to Pension Plan
benefits in accordance with such Section 10.1, to convert such
amount into a benefit payable in the form of a single life
annuity, and
(iii) if payment of the Employee's Excess and/or Supplemental
Benefits is to be made in a form other than as a single
life annuity, reduce the amount determined in (ii) by the
reduction percentage that would be applicable under
Section 10.1 of the Pension Plan to an annuity payable
thereunder to the Employee in the same form as the form
in which payment of the Employee's Excess and/or
Supplemental Benefits is to be made hereunder and with
the same beneficiary.
If Excess and/or Supplemental Benefits 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
9
<PAGE>
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 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 (z) the Employee's
benefits under the Pension Plan were
10
<PAGE>
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 time of commencement and form 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
11
<PAGE>
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
(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
12
<PAGE>
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 Notwithstanding any other provision of this Plan to the contrary, the
provisions of this Section 3.3 shall apply in determining the Excess
Benefit and/or the Supplemental Benefit payable with respect to any
Employee whose employment terminates as a result of an Involuntary
Termination within the two (2) year period following a Change in Control
and who has not attained age 55 and completed at least 10 years of
Creditable Service as of the date of his or her Involuntary Termination.
(a) In the case of any such Employee, the pension benefits determined
with respect to the Employee under clause (i) of Section 1.7 and
clause (i) of Section 1.11 shall be determined using the early
retirement reduction factors specified in Section 3.3 of the Pension
Plan instead of the actuarial reduction factors applicable under
Section 3.5 of the Pension Plan.
(b) In the case of any such Employee who has not completed at least five
years of Credited Service as of the date of his or her Involuntary
Termination, the Excess Benefit and/or the Supplemental Benefit
payable with respect to the Employee shall be determined in
accordance with the following provisions:
(i) The pension benefits to be determined for the Employee or his
or her surviving spouse under clause (i) of Section 1.7 and
clause (i) of Section 1.11 shall be the pension benefits that
would be payable to the Employee under Section 3.5 of the
Pension Plan or to the Employee's surviving spouse under the
applicable provisions of Section 9 of the Pension Plan (in
each case, determined with the adjustments described in
clause (i) of Section 1.7, in clause (i) of Section 1.11, and
in Section 3.3(a), of this Plan, and including the increase
in the first twelve (12) months' pension payments provided
for in Section 6.2 of the Pension Plan), if Section 3.5 or
Section 9 of the Pension Plan, as the case may be, did not
require, as a condition for the payment of the benefit
provided for thereunder, the completion by the Employee of at
least five years of Creditable Service.
(ii) The Excess Benefit and/or Supplemental Benefit payable
hereunder to the Employee or the Employee's surviving spouse
shall be paid or commence to be paid on the date that would
apply under Section 3.2(a)(ii) and Section 3.2(c)(ii) in the
case of a Benefit payable to the Employee, or under Section
3.2(a)(iii) in the case of a Benefit payable to the Employee's
surviving spouse, if the Employee or his surviving spouse,
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<PAGE>
as the case may be, were in fact entitled to receive a pension
benefit under Section 3.5 or the applicable provisions of
Section 9 of the Pension Plan.
(iii) The Employee shall be entitled to make the same elections as
to the time of commencement and the form of payment of his or
her Excess Benefit and/or Supplemental Benefit as are provided
under Section 3.2(c)(ii) and (iii) and Section 3(h), on the
terms and conditions set forth therein, except that (1) if the
Employee has been employed with the GPU Companies for less
than twenty-four (24) months prior to his termination of
employment, any such election that otherwise must be made at
least twenty-four (24) months before the Employee's
termination of employment shall nevertheless be effective if
it is made by the Employee no later than thirty (30) days
after the Employee's commencement of employment with the GPU
Companies, and (2) if the Employee has been employed with the
GPU Companies for less than one year prior to a Change in
Control, any such election that otherwise must be made at
least one year prior to such Change in Control shall
nevertheless be effective if it is made by the Employee no
later than thirty (30) days after the date of the Employee's
commencement of employment with the GPU Companies.
(iv) If the Actuarially Equivalent lump sum value of the Excess
Benefit and/or Supplemental Benefit payable to the Employee,
determined as of the date on which payment of such Benefit is
to commence, is less than $5,000, the Employee shall be paid
such value in a single lump sum and shall not be entitled to
any other benefits under this Plan.
3.4 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.
3.5 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.
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<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.
16
Exhibit C-23
SEVERANCE PROTECTION AGREEMENT
THIS AGREEMENT made as of the 17th day of April, 2000 , by
and among GPU, Inc. (the "Corporation"), GPU Service, Inc. (the "Company") and
Michael J. Chesser (the "Executive").
WHEREAS, the Board of Directors of the Corporation and the Board
of Directors of the Company (the "Boards") recognize that the possibility of a
Change in Control (as hereinafter defined) exists and that the threat or the
occurrence of a Change in Control can result in significant distraction of the
Company's key management personnel because of the uncertainties inherent in such
a situation;
WHEREAS, the Boards have determined that it is essential and in
the best interest of the Company, and the Corporation and its stockholders, for
the Company to retain the services of the Executive in the event of a threat or
occurrence of a Change in Control and to ensure the Executive's continued
dedication and efforts in such event without undue concern for the Executive's
personal financial and employment security; and
WHEREAS, in order to induce the Executive to remain in the
employ of the Company, particularly in the event of a threat or the occurrence
of a Change in Control, the Company desires to enter into this Agreement with
the Executive to provide the Executive with certain benefits in the event the
Executive's employment is terminated as a result of, or in connection with, a
Change in Control.
NOW, THEREFORE, in consideration of the respective agreements of
the parties contained herein, it is agreed as follows:
1. Term of Agreement. This Agreement shall commence as of April
17, 2000, and shall continue in effect until October 31, 2001 (the "Term");
provided, however, that on November 1, 2000, and on each November 1 thereafter,
the Term shall automatically be extended for one (1) year unless either the
Executive or the Company shall have given written notice to the other at least
ninety (90) days prior thereto that the Term shall not be so extended; provided,
further, however, that following the occurrence of a Change in Control, the Term
shall not expire prior to the expiration of twenty-four (24) months after such
occurrence.
2. Termination of Employment. If the Executive's employment with
the Company and with all other Affiliates of the Corporation shall be terminated
within twenty-four (24) months following a Change in Control, the Executive
shall be entitled to the following compensation and benefits:
<PAGE>
(a) If the Executive's employment with the Compan
and with all other Affiliates of the Corporation shall be terminated for any
reason, the Company shall pay to the Executive his Accrued Compensation. In
addition to the foregoing, if the Executive's employment is terminated by the
Company for Disability or by reason of the Executive's death, the Company shall
pay to the Executive or his beneficiaries a Pro Rata Bonus.
(b) If the Executive's employment with the Company
and with all other Affiliates of the Corporation shall be terminated (i) by the
Company without Cause (other than by reason of the Executive's Disability), or
(ii) by the Executive for Good Reason, the Executive shall be entitled to the
following:
(1) the Company shall pay the Executive all
Accrued Compensation and a Pro Rata Bonus;
(2) the Company shall pay the Executive as
severance pay and in lieu of any further compensation for periods subsequent to
the Termination Date, an amount determined by multiplying (A) three (3) times
the sum of (i) the Executive's Base Amount and (ii) the Executive's Bonus
Amount, by (B) a fraction, the numerator of which is the number of months, not
to exceed thirty-six (36), in the period beginning on the Termination Date and
ending on the Executive's Normal Retirement Date (as defined in the Company's
Employee Pension Plan), and the denominator of which is thirty-six (36).
(3) for a number of months equal to
thirty-six (36), or if earlier, until the Executive's Normal Retirement Date (as
defined in the Company's Employee Pension Plan) (the "Continuation Period"), the
Company shall at its expense continue on behalf of the Executive and his
dependents and beneficiaries the life insurance, disability, medical, dental and
hospitalization coverages and benefits provided to the Executive immediately
prior to the Change in Control or, if greater, the coverages and benefits
provided at any time thereafter. The coverages and benefits (including
deductibles and costs) provided in this Section 2(b)(3) during the Continuation
Period shall be no less favorable to the Executive and his dependents and
beneficiaries, than the most favorable of such coverages and benefits referred
to above. The Company's obligation hereunder with respect to the foregoing
coverages and benefits shall be reduced to the extent that the Executive obtains
any such coverages and benefits pursuant to a subsequent employer's benefit
plans, in which case the Company may reduce any of the coverages or benefits it
is required to provide the Executive hereunder so long as the aggregate
coverages and benefits of the combined benefit plans is no less favorable to the
Executive than the coverages and benefits required to be provided hereunder.
This Section 2(b)(3) shall not be interpreted so as to
2
<PAGE>
limit any benefits to which the Executive, his dependents or beneficiaries may
be entitled under any of the Company's employee benefit plans, programs or
practices following the Executive's termination of employment, including without
limitation, retiree medical and life insurance benefits;
(4) the Company shall pay or reimburse the
Executive for the costs, fees and expenses of outplacement assistance services
(not to exceed twenty percent (20%) of the sum of (A) the Executive's Base
Amount and (B) the Executive's Bonus Amount) provided by any outplacement agency
selected by the Executive; and
(5) the Company shall provide to the
Executive the use of a Company-leased vehicle, at no cost to the Executive,
until the earlier of (A) the date occurring six (6) months after the Termination
Date or (B) the Executive's sixty-fifth (65th) birthday, after which date the
Executive shall have the option to purchase the vehicle at its "blue book"
value.
(c) If the Executive's employment is terminated by
the Company without Cause (other than by reason of the Executive's Disability)
(1) within twelve (12) months prior to a Change in Control or (2) any time prior
to the date of a Change in Control but the Executive reasonably demonstrates
that such termination (A) was at the request of a third party who has indicated
an intention or taken steps reasonably calculated to effect a Change in Control
(a "Third Party") and who effectuates a Change in Control or (B) otherwise arose
in connection with, or in anticipation of, a Change in Control which has been
threatened or proposed such termination shall be deemed to have occurred after a
Change in Control, provided a Change in Control shall actually have occurred.
(d) (1) Gross-Up Payment. In the event it
shall be determined that any payment or distribution of any type to or for the
benefit of the Executive, by the Company, the Corporation, any Affiliate, any
Person (as defined in Section 15.6(a) hereof) who acquires ownership or
effective control of the Corporation or ownership of a substantial portion of
the Corporation's assets (within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder)
or any affiliate of such Person, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (the "Total
Payments"), is or will be subject to the excise tax imposed by Section 4999 of
the Code or any interest or penalties with respect to such excise tax (such
excise tax, together with any such interest and penalties, are collectively
referred to as the "Excise Tax"), then the Executive shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an amount such that
after
3
<PAGE>
payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including any Excise Tax, imposed upon the
Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Total Payments.
(2) Determination By Accountant. All
mathematical determinations, and all determinations as to whether any of the
Total Payments are "parachute payments" (within the meaning of Section 280G of
the Code), that are required to be made under this Section 2(d), including
determinations as to whether a Gross-Up Payment is required, the amount of such
Gross-Up Payment and amounts relevant to the last sentence of this Section
2(d)(2), shall be made by an independent accounting firm selected by the
Executive from among the six (6) largest accounting firms in the United States
(the "Accounting Firm"), which shall provide its determination (the
"Determination"), together with detailed supporting calculations regarding the
amount of any Gross-Up Payment and any other relevant matter, both to the
Company and the Executive by no later than ten (10) days following the
Termination Date, if applicable, or such earlier time as is requested by the
Company or the Executive (if the Executive reasonably believes that any of the
Total Payments may be subject to the Excise Tax). If the Accounting Firm
determines that no Excise Tax is payable by the Executive, it shall furnish the
Executive and the Company with a written statement that such Accounting Firm has
concluded that no Excise Tax is payable (including the reasons therefor) and
that the Executive has substantial authority not to report any Excise Tax on his
federal income tax return. If a Gross-Up Payment is determined to be payable, it
shall be paid to the Executive within twenty (20) days after the Determination
(and all accompanying calculations and other material supporting the
Determination) is delivered to the Company by the Accounting Firm. Any
determination by the Accounting Firm shall be binding upon the Company and the
Executive, absent manifest error. As a result of uncertainty in the application
of Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the
Company should have been made ("Underpayment"), or that Gross-Up Payments will
have been made by the Company which should not have been made ("Overpayments").
In either such event, the Accounting Firm shall determine the amount of the
Underpayment or Overpayment that has occurred. In the case of an Underpayment,
the amount of such Underpayment shall be promptly paid by the Company to or for
the benefit of the Executive. In the case of an Overpayment, the Executive
shall, at the direction and expense of the Company, take such steps as are
reasonably necessary (including the filing of returns and claims for refund),
follow reasonable instructions from, and procedures established by, the Company,
and otherwise reasonably cooperate with the Company to
4
<PAGE>
correct such Overpayment, provided, however, that (i) the Executive shall not in
any event be obligated to return to the Company an amount greater than the net
after-tax portion of the Overpayment that he has retained or has recovered as a
refund from the applicable taxing authorities and (ii) this provision shall be
interpreted in a manner consistent with the intent of Section 2(d)(1), which is
to make the Executive whole, on an after-tax basis, from the application of the
Excise Tax, it being understood that the correction of an Overpayment may result
in the Executive repaying to the Company an amount which is less than the
Overpayment.
(e) The amounts provided for in Sections 2(a) and
2(b)(1), (2) and (4) shall be paid in a single lump
sum cash payment within thirty (30) days after the Executive's Termination Date
(or earlier, if required by applicable law).
(f) The Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment or otherwise and no such payment shall be offset or reduced by
the amount of any compensation or benefits provided to the Executive in any
subsequent employment except as provided in Section 2(b)(3).
(g) The severance pay and benefits provided for in
this Section 2 shall be in lieu of any other severance pay to which the
Executive may be entitled under the GPU System Severance Procedure or any other
plan, agreement or arrangement of the Company or any other Affiliate of the
Corporation.
(h) The Executive's entitlement to other
compensation or benefits, pursuant to the Company's employee benefit plans and
other applicable programs and practices shall be determined in accordance with
the terms of those plans, programs and practices as in effect from time to time.
3. Notice of Termination. Following a Change in Control, (i) any
intended termination of the Executive's employment by the Company shall be
communicated by a Notice of Termination from the Company to the Executive, and
(ii) any intended termination of the Executive's employment by the Executive for
Good Reason shall be communicated by a Notice of Termination from the Executive
to the Company within six (6) months of the Executive becoming aware of the
event or action constituting Good Reason or, if later, within six (6) months
after the date of the Change in Control.
4. Fees and Expenses. The Company shall pay all legal fees and
related expenses (including the costs of experts, evidence and counsel) incurred
in good faith by the Executive as they become due as a result of (a) the
termination of the
5
<PAGE>
Executive's employment by the Company or by the Executive for Good Reason
(including all such fees and expenses, if any, incurred in contesting, defending
or disputing the basis for any such termination of employment), (b) the
Executive's hearing before the Board of Directors of the Corporation as
contemplated in Section 15.5 of this Agreement or (c) the Executive seeking to
obtain or enforce any right or benefit provided by this Agreement or by any
other plan or arrangement maintained by the Company under which the Executive is
or may be entitled to receive benefits; provided, however, that the payment of
fees and expenses pursuant to this Section 4(c) shall be made only after, and
only to the extent that, the Executive is unsuccessful in his attempt to obtain
or enforce such right or benefit through the procedures established under the
Legal Defense Fund maintained by the Company under the GPU System Companies
Master Executives' Benefits Protection Trust (or any similar fund under a
successor trust).
5. Transfer of Employment. Notwithstanding any other provision
herein to the contrary, the Company shall cease to have any further obligation
or liability to the Executive under this Agreement if (a) the Executive's
employment with the Company terminates as a result of the transfer of his
employment to any other Affiliate of the Corporation, (b) this Agreement is
assigned to such other Affiliate, and (c) such other Affiliate expressly assumes
and agrees to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no assignment had taken
place. Any Affiliate to which this Agreement is so assigned shall be treated as
the "Company" for all purposes of this Agreement on or after the date as of
which such assignment to the Affiliate, and the Affiliate's assumption and
agreement to so perform this Agreement, becomes effective.
6. Corporation's Obligation. The Corporation agrees that it will
take such steps as may be necessary to cause the Company (or any Affiliate that
has become the "Company" pursuant to Section 5 hereof) to meet each of its
obligations to the Executive under this Agreement.
7. Notice. For the purposes of this Agreement, notices and all
other communications provided for in the Agreement (including any Notice of
Termination) shall be in writing, shall be signed by the Executive if to the
Company or by a duly authorized officer of the Company if to the Executive, and
shall be deemed to have been duly given when personally delivered or sent by
certified mail, return receipt requested, postage prepaid, addressed to the
respective addresses last given by each party to the other, provided that all
notices to the Company shall be directed to the attention of the Board with a
copy to the Secretary of the Company. All notices and communications
6
<PAGE>
shall be deemed to have been received on the date of delivery thereof or on the
third business day after the mailing thereof, except that notice of change of
address shall be effective only upon receipt.
8. Nature of Rights. The Executive shall have the status of a
mere unsecured creditor of the Company and the Corporation with respect to his
right to receive any payment under this Agreement. This Agreement shall
constitute a mere promise by the Company and the Corporation to make payments in
the future of the benefits provided for herein. It is the intention of the
parties hereto that the arrangements reflected in this Agreement shall be
treated as unfunded for tax purposes and, if it should be determined that Title
I of ERISA is applicable to this Agreement, for purposes of Title I of ERISA.
Except as provided in Section 2(g), nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any benefit, bonus,
incentive or other plan or program provided by the Company, the Corporation or
any other Affiliate of the Corporation and for which the Executive may qualify,
nor shall anything herein limit or reduce such rights as the Executive may have
under any other agreements with the Company, the Corporation or any other
Affiliate of the Corporation. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan or program of the
Company, the Corporation or any other Affiliate of the Corporation shall be
payable in accordance with such plan or program, except as explicitly modified
by this Agreement.
9. Settlement of Claims. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, defense, recoupment, or other right which
the Company may have against the Executive or others.
10. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive, the Corporation and the
Company. No waiver by any party hereto at any time of any breach by any other
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreement or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by any party
which are not expressly set forth in this Agreement.
7
<PAGE>
11. Successors; Binding Agreement.
(a) This Agreement shall be binding upon and shall
inure to the benefit of the Company, the
Corporation and their respective Successors and Assigns. The Company and the
Corporation shall require their respective Successors and Assigns to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company and/or the Corporation would be required to perform it
if no such succession or assignment had taken place.
(b) Neither this Agreement nor any right or
interest hereunder shall be assignable or transferable by the Executive, his
beneficiaries or legal representatives, except by will or by the laws of descent
and distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal personal representative.
12. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New Jersey
without giving effect to the conflict of laws principles thereof. Any action
brought by any party to this Agreement shall be brought and maintained in a
court of competent jurisdiction in Morris County in the State of New Jersey.
13. Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof.
14. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto, and supersedes all prior agreements, if
any, understandings and arrangements, oral or written, between the parties
hereto.
15. Definitions.
15.1. Accrued Compensation. For purposes of this
Agreement, "Accrued Compensation" shall mean all amounts of compensation for
services rendered to the Company or any other Affiliate that have been earned or
accrued through the Termination Date but that have not been paid as of the
Termination Date including (a) base salary, (b) reimbursement for reasonable and
necessary business expenses incurred by the Executive on behalf of the Company
during the period ending on the Termination Date, (c) vacation pay and (d)
bonuses and incentive compensation; provided, however, that Accrued Compensation
shall not include any amounts described in clause (a) or clause (d) that have
been deferred pursuant to any salary reduction or deferred compensation
elections made by the Executive.
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15.2. Affiliate. For purposes of this Agreement,
"Affiliate" means any entity, directly or indirectly, controlled by, controlling
or under common control with the Corporation or any corporation or other entity
acquiring, directly or indirectly, all or substantially all the assets and
business of the Corporation, whether by operation of law or otherwise.
15.3. Base Amount. For purposes of this Agreement,
"Base Amount" shall mean the Executive's annual base salary at the rate in
effect as of the date of a Change in Control or, if greater, at any time
thereafter, determined without regard to any salary reduction or deferred
compensation elections made by the Executive.
15.4. Bonus Amount. For purposes of this Agreement,
"Bonus Amount" shall mean the greater of (a) the target annual bonus payable to
the Executive under the Incentive Plan in respect of the fiscal year during
which the Termination Date occurs or (b) the highest annual bonus paid or
payable under the Incentive Plan in respect of any of the three full fiscal
years ended prior to the Termination Date or, if greater, the three (3) full
fiscal years ended prior to the Change in Control.
15.5. Cause. For purposes of this Agreement, a
termination of employment is for "Cause" if the Executive has been convicted of
a felony or the termination is evidenced by a resolution adopted in good faith
by two-thirds of the Board of Directors of the Corporation that the Executive:
(a) intentionally and continually failed
substantially to perform his reasonably assigned duties with the Company or the
Corporation (other than a failure resulting from the Executive's incapacity due
to physical or mental illness or from the assignment to the Executive of duties
that would constitute Good Reason) which failure continued for a period of at
least thirty (30) days after a written notice of demand for substantial
performance, signed by a duly authorized officer of the Company or the
Corporation, has been delivered to the Executive specifying the manner in which
the Executive has failed substantially to perform, or
(b) intentionally engaged in conduct
which is demonstrably and materially injurious to the Corporation or the
Company; provided, however, that no termination of the Executive's employment
shall be for Cause as set forth in this Section 15.5(b) until (1) there shall
have been delivered to the Executive a copy of a written notice, signed by a
duly authorized officer of the Company or the Corporation, setting forth that
the Executive was guilty of the conduct set forth in this Section 15.5(b) and
specifying the particulars thereof in detail, and (2) the Executive shall have
been provided an opportunity to be
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heard in person by the Board of Directors of the Corporation (with the
assistance of the Executive's counsel if the Executive so desires).
No act, nor failure to act, on the Executive's part, shall be considered
"intentional" unless the Executive has acted, or failed to act, with a lack of
good faith and with a lack of reasonable belief that the Executive's action or
failure to act was in the best interest of the Corporation and the Company.
Notwithstanding anything contained in this Agreement to the contrary, no failure
to perform by the Executive after a Notice of Termination is given to the
Company by the Executive shall constitute Cause for purposes of this Agreement.
15.6. Change in Control. A "Change in Control"
shall mean the occurrence during the term of the Agreement of:
(a) An acquisition (other than directly
from 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 (i) an employee benefit plan (or a trust forming a
part thereof) maintained by (A) the Corporation or (B) 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 (a
"Subsidiary") (ii) the Corporation or its Subsidiaries, or (iii) any Person in
connection with a Non-Control Transaction (as hereinafter defined);
(b) 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 Agreement,
be considered as a member of the
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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
(c) The consummation of:
(1) 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:
(A) 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,
(B) 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 beneficially directly or indirectly
owning a majority of the Voting Securities of the Surviving Corporation, and
(C) no Person other
than (i) the Corporation, (ii) any Subsidiary, (iii) 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, the
Surviving Corporation, or any Subsidiary, or (iv) 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.
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(2) A complete liquidation or
dissolution of the Corporation; or
(3) 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.
15.7. Company and Corporation. For purposes of
this Agreement, all references to the Company and the Corporation shall include
their respective Successors and Assigns.
15.8. Disability. For purposes of this Agreement,
"Disability" shall mean a physical or mental infirmity which impairs the
Executive's ability to substantially perform his duties with the Company for six
(6) consecutive months, and within the time period set forth in a Notice of
Termination given to the Executive (which time period shall not be less than
thirty (30) days), the Executive shall not have returned to full-time
performance of his duties; provided, however, that if the Company's Voluntary
Employees Beneficiary Association Long Term Disability Income Plan, or any
successor plan (the "Disability Plan"), is then in effect, the Executive shall
not be deemed disabled for purposes of this Agreement unless the Executive is
also eligible for "Total Disability" (as defined in the Disability Plan)
benefits (or similar benefits in the event of a successor plan) under the
Disability Plan.
15.9. Good Reason. (a) For purposes of this
Agreement, "Good Reason" shall mean the occurrence after a Change in Control of
any of the following events or conditions:
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(1) a change in the Executive's status,
title, position or responsibilities (including reporting responsibilities)
which, in the Executive's reasonable judgment, represents an adverse change from
his status, title, position or responsibilities as in effect immediately prior
thereto; the assignment to the Executive of any duties or responsibilities
which, in the Executive's reasonable judgment, are inconsistent with his status,
title, position or responsibilities; or any removal of the Executive from or
failure to reappoint or reelect him to any of such offices or positions, except
in connection with the termination of his employment for Disability, Cause, as a
result of his death or by the Executive other than for Good Reason;
(2) a reduction in the Executive's annual
base salary below the Base Amount;
(3) the relocation of the offices of the
Company at which the Executive is principally employed to a location more than
twenty-five (25) miles from the location of such offices immediately prior to
such Change in Control, or the Company's or the Corporation's requiring the
Executive to be based anywhere other than such offices, except to the extent the
Executive was not previously assigned to a principal location and except for
required travel on the Company's or the Corporation's business to an extent
substantially consistent with the Executive's business travel obligations at the
time of the Change in Control;
(4) the failure by the Company or the
Corporation to pay to the Executive any portion of the Executive's current
compensation or to pay to the Executive any portion of an installment of
deferred compensation under any deferred compensation program of the Company or
the Corporation in which the Executive participated, within seven (7) days of
the date such compensation is due;
(5) the failure by the Company or the
Corporation to (A) continue in effect (without reduction in benefit level,
and/or reward opportunities) any material compensation or employee benefit plan
in which the Executive was participating immediately prior to the Change in
Control, including, but not limited to, any of the plans listed in Appendix A
hereto, unless a substitute or replacement plan has been implemented which
provides substantially identical compensation or benefits to the Executive or
(B) provide the Executive with compensation and benefits, in the aggregate, at
least equal (in terms of benefit levels and/or reward opportunities) to those
provided for under each other compensation or employee benefit plan, program and
practice in which the Executive was participating immediately prior to the
Change in Control;
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(6) the failure of the Company or the
Corporation to obtain from its Successors or Assigns the express assumption and
agreements required under Section 11 hereof; or
(7) any purported termination of the
Executive's employment by the Company which is not effected pursuant to a Notice
of Termination satisfying the terms set forth in the definition of Notice of
Termination (and, if applicable, the terms set forth in the definition of
Cause).
(b) Any event or condition (1) described
in Section 15.9(a)(1), (2), (3), (4), (6) or (7) which occurs within twelve (12)
months prior to a Change in Control or (2) described in Section 15.9(a)(1)
through (7) which occurs prior to a Change in Control but which the Executive
reasonably demonstrates (A) was at the request of a Third Party who effectuates
a Change in Control or (B) 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
Agreement notwithstanding that it occurred prior to a Change in Control.
15.10. Incentive Plan. For purposes of this
Agreement, "Incentive Plan" shall mean the Incentive Compensation Plan for
Elected Officers, or any successor annual incentive plan, maintained by the
Company or any other Affiliate.
15.11. Notice of Termination. For purposes of this
Agreement, following a Change in Control, "Notice of Termination" shall mean a
written notice of termination of the Executive's employment, signed by the
Executive if to the Company or by a duly authorized officer of the Company if to
the Executive, which indicates the specific termination provision in this
Agreement, if any, relied upon and which sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated.
15.12. Pro Rata Bonus. For purposes of this
Agreement, "Pro Rata Bonus" shall mean an amount equal to the Bonus Amount
multiplied by a fraction the numerator of which is the number of days in such
fiscal year through the Termination Date and the denominator of which is 365;
provided, however, that the Pro Rata Bonus shall be reduced, but not below zero,
to the extent of any bonus the Executive is entitled to receive pursuant to the
Incentive Plan in respect of the fiscal year (denoted a "Performance Period"
under the Incentive Plan) in which the Termination Date occurs.
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15.13. Successors and Assigns. For purposes of this
Agreement, "Successors and Assigns" shall mean, with respect to the Company or
the Corporation, a corporation or other entity acquiring all or substantially
all the assets and business of the Company or the Corporation, as the case may
be (including this Agreement) whether by operation of law or otherwise.
15.14. Termination Date
. (a) For purposes of this Agreement, "Termination Date" shall mean (i) in the
case of the Executive's death, his date of death, (ii) if the Executive's
employment is terminated for Disability, thirty (30) days after Notice of
Termination is given (provided that the Executive shall not have returned to the
performance of his duties on a full-time basis during such thirty (30) day
period) and (iii) if the Executive's employment is terminated for any other
reason, the date specified in the Notice of Termination (which, in the case of a
termination for Cause shall not be less than thirty (30) days, and in the case
of a termination for Good Reason shall not be more than sixty (60) days, from
the date such Notice of Termination is given); provided, however, that if within
thirty (30) days after a Notice of Termination by the Company for Cause or a
Notice of Termination by the Executive for Good Reason is given the party
receiving such Notice of Termination in good faith notifies the other party that
a dispute exists concerning the basis for the termination, the provisions of
paragraph (b) shall apply.
(b)(i) If the Executive gives the Company Notice of
Termination for Good Reason and the Company disputes the basis for the
termination, the Termination Date shall be the date on which the dispute is
finally determined, either by mutual written agreement of the parties, or by the
final judgment, order or decree of a court of competent jurisdiction (the time
for appeal therefrom having expired and no appeal having been taken) and the
Company shall continue to pay the Executive his Base Amount and continue the
Executive as a participant in all compensation, incentive, bonus, pension,
profit sharing, medical, hospitalization, dental, life insurance and disability
benefit plans in which he was participating when the notice giving rise to the
dispute was given, until such Termination Date, provided that if the Executive
continues to perform his duties with the Company during the pendency of such
dispute, the Executive shall not be obligated to repay to the Company any
amounts paid or benefits provided pursuant to this Section 15.14(b), and further
provided that if the Executive ceased performing his duties with the Company
during the pendency of such dispute, and the dispute is resolved in favor of the
Executive, any amount owed to the Executive pursuant to Section 2 of this
Agreement shall
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be reduced to the extent of any amount the Executive received pursuant to this
Section 15.14(b) during the pendency of such dispute; and (ii) if the Company
gives the Executive Notice of Termination for Cause and the Executive disputes
the basis for the termination, the Termination Date shall be as determined
pursuant to Section 15.14(a) and during the pendency of such dispute the
Executive shall not be entitled to payment of his Base Amount from the Company
and, except as required by law, the Executive's participation in the Company's
benefit plans and programs shall be discontinued.
IN WITNESS WHEREOF, the Corporation and the Company have caused
this Agreement to be executed by their duly authorized officers and the
Executive has executed this Agreement as of the day and year first above
written.
GPU, Inc.
By:___________________________
ATTEST: Fred D. Hafer
Chairman, President and
Chief Executive Officer
----------------------
Secretary
GPU Service, Inc.
By: __________________________
ATTEST: Fred D. Hafer
Chairman, President and
Chief Executive Officer
----------------------
Secretary
By: __________________________
Michael J. Chesser
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APPENDIX A
1. 1990 Stock Plan for Employees of GPU, Inc. and Subsidiaries
2. The Company's Incentive Plan
3. The GPU Companies Deferred Compensation Plan
4. The GPU Companies Employee Pension Plan
5. The Company's Supplemental and Excess Benefits Plan
6. The Company's Employee Life Insurance Plan
7. Senior Executive Split-Dollar Life Insurance Program
8. The GPU Companies Accident Insurance Plan
9. The GPU Companies Health Care Plan for Non-Bargaining Employees and the
Company's Health Care Plan for Non-bargaining Retirees, if applicable
10. The GPU Companies Supplemental Medical Expense Plan for Elected
Officers
11. The GPU Companies Flexible Benefits Plan for Non-bargaining Employees
12. The GPU Companies Group Specified Disease Insurance Plan
13. The GPU Companies Long Term Disability Income Plan
14. The GPU Companies Employee Savings Plan
15. The Company's Vacation Policy for Non-Bargaining Unit Employees
17
Exhibit C-24
April 17, 2000
Mr. Michael J. Chesser
400 Wyomissing Boulevard
Wyomissing, Pennsylvania 19610
Dear Mike:
The purpose of this letter is to set forth the terms and conditions
under which GPU Service, Inc. ("GPUS") will provide you with a supplemental
pension upon your retirement or other termination of employment with GPUS and
all other subsidiaries of GPU, Inc. (GPU, Inc. and its subsidiaries are referred
to herein as the "GPU Companies"). This letter also sets forth the terms and
conditions under which additional years of service will be credited to you for
purposes of other benefit programs maintained by the GPU Companies.
1. Supplemental Pension. Upon the termination of your employment with
the GPU Companies for any reason other than death after you have completed at
least 5 years of "Creditable Service" (as defined in the GPU Companies Employee
Pension Plan (the "EPP"), you shall be entitled to receive from GPUS a
supplemental pension (your "Supplemental Pension"), which shall be in addition
to the pension benefits payable to you under the EPP and the GPU Companies
Supplemental and Excess Benefits Plan (together, the "GPU Retirement Plans"),
and in addition to the pension benefit payable to you under the GPU Companies
Supplemental Executive Retirement Plan (the "SERP"). The Supplemental Pension
payable to you hereunder will be determined in accordance with the following
provisions:
(a) The Supplemental Pension payable to you hereunder, when expressed
as a single life annuity, shall be equal to (i) the additional aggregate annual
pension amount that would have been payable to you under the GPU Retirement
Plans if you had a number of additional years of Creditable Service (including
fractions of a year) equal to the number of your actual years of Creditable
Service (including fractions of a year), reduced by (ii) the Applicable
Percentage (as defined below) of the aggregate annual pension amount (exclusive
of any portion thereof attributable to
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your own contributions) payable to you under your Other Retirement Plans (as
defined below).
For purposes of the foregoing, it shall be assumed that the aggregate
annual pension amount payable to you under the GPU Retirement Plans is payable
in the form of a single life annuity, and that payment of such pension amount
will commence on the same date as payment of your Supplemental Pension hereunder
will commence.
(b) The reduction in the amount of your Supplemental Pension required
under (a)(ii) above shall be made in accordance with the following rules:
(i) The term "Other Retirement Plan" shall mean (A) any
defined benefit pension plan, whether or not tax qualified, (including
without limitation any such plan that is a "cash balance" plan)
maintained by any former employer with which you were employed at any
time prior to April 17, 2000, and (B) any individual contract between
you and such other former employer under which you are entitled to
receive, upon or at any time after your retirement or other termination
of employment with such former employer, a benefit that is defined as,
or as the actuarial equivalent of, a fixed amount of annual income
payable for your lifetime.
(ii) The term "Applicable Percentage" shall mean the
percentage determined by dividing the number of additional years of
Creditable Service taken into account pursuant to Section 1(a)(i) in
determining the amount of the Supplemental Pension payable to you
hereunder, by 15;
(iii) If the pension amount payable to you under any Other
Retirement Plan is not payable in the form of a single life annuity
commencing on the date on which payment of your Supplemental Pension
hereunder will commence (your "Payment Starting Date"), the amount to
be taken into account for purposes of the reduction required under
(a)(ii) above shall be the pension amount that would be payable to you
under the terms of such Other Retirement Plan if such pension amount
were payable in the form of a single life annuity commencing on your
Payment Starting Date; provided, however, that if your Payment Starting
Date is prior to the earliest date as of which payment of such pension
amount could commence under the terms of such Other Retirement Plan,
then
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(A) the amount to be taken into account for purposes
of the reduction required under (a)(ii) above shall be
the pension amount that would be payable to you under the
terms of such Other Retirement Plan if such pension
amount were payable in the form of a single life annuity
commencing on such earliest date, and
(B) the amount of such reduction shall not be applied
to any monthly payment of your Supplemental Pension that
is payable to you before such earliest date.
(c) The Supplemental Pension shall be paid to you in the form of a
single life annuity unless you are married on your Payment Starting Date, in
which case it shall be paid in the form described as option 2 in Section 10.1 of
the EPP, with your spouse as beneficiary.
(d) Payment of your Supplemental Pension shall commence on the first
day of the month following (i) the date on which your employment with the GPU
Companies terminates or (ii), if later, the date on which you attain age 55.
Your Supplemental Pension payments shall end with the payment due for the month
in which your death occurs or, if the Supplemental Pension is payable in the
form described as Option 2 in Section 10.1 of the EPP, the month in which your
death or your spouse's death occurs whichever is the later.
2. Involuntary Termination. If your employment with the GPU Companies
shall be terminated as a result of an "Involuntary Termination" (as defined in
Appendix A) at any time within two (2) years following the occurrence of a
"Change in Control" (as defined in Appendix A hereto), you shall be entitled to
receive a Supplemental Pension determined in accordance with the provisions of
Section 1, but with the following modifications:
(a) You shall be eligible to receive a Supplemental Pension
hereunder regardless of whether or not you have completed at least 5
years of Creditable Service as of the date of your Involuntary
Termination.
(b) The amount of the Supplemental Pension payable to you
shall be determined using the early retirement reduction factors
specified in Section 3.3 of the EPP instead of the actuarial reduction
factors applicable under Section 3.5 of the EPP, even if you had not
yet attained age 55 as of the date of your Involuntary Termination.
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3. Survivor's Annuity. If you should die before you start to receive
your Supplemental Pension, your surviving spouse, if any, shall be entitled to
receive for the rest of her lifetime 50% of the aggregate annual pension amount
which would have been payable to you under the GPU Retirement Plans and 50% of
the Supplemental Pension that would have been payable to you hereunder if you
had not died, if you had terminated employment with the GPU Companies on the
last day of the month in which your death occurs, and if you had not been
married on such last day. To the extent your surviving spouse does not receive
such pension amounts from the GPU Retirement Plans, they shall be payable to her
by GPUS pursuant to this Agreement.
The payments to be made to your surviving spouse under this Section 3
(the "Survivor's Annuity") shall commence on the first day of the month
following the date of your death and shall end with the payment due for the
month in which your surviving spouse's death occurs.
4. Regular Payment Benefit Election. Notwithstanding any other
provision of this Agreement to the contrary, you may elect to have the
Supplemental Pension that becomes payable to you hereunder or the Survivor's
Annuity that becomes payable to your surviving spouse under Section 3 hereof
paid in the form of a single lump sum payment. The amount of such lump sum
payment shall be determined in the same manner as the amount of the lump sum
payment payable pursuant to an election by you under clause (a) of the first
paragraph of Section 5 would be determined, as provided in the third paragraph
of Section 5.
Any election under this Section 4 shall be effective only if it is made
at least twenty-four (24) months prior to the termination of your employment
with the GPU Companies. Any election so made may be revoked, and a new election
may be made under this Section 4, 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 by you under this Section 4 shall be made in writing,
on a form that is furnished to you for such purpose by the Administrative
Committee for the EPP (the "Administrative Committee") and that is signed by you
and delivered to the Administrative Committee.
5. Special Payment Benefit Election. Notwithstanding any other
provision of this Agreement or the GPU Retirement Plans to the contrary, or any
other form of distribution or payment provided for or optional form of
distribution or payment otherwise elected under this Agreement or the GPU
Retirement Plans, you shall be permitted to make either one, or both, of the
following special payment elections: (a) to have the Supplemental
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Pension payable to you hereunder, or the Survivor's Annuity payable hereunder to
your surviving spouse, paid in the form of a single lump sum payment in the
event of your termination of employment with the GPU Companies for any reason
within the two (2) year period following the occurrence of a Change in Control,
or (b) if a Change in Control occurs after the termination of your employment
with the GPU Companies but before all payments required to be made hereunder
with respect to your Supplemental Pension have been made, to have the
Supplemental Pension 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 (a) of the preceding paragraph shall be
effective only if it is made either at least twenty-four (24) months prior to
such termination of your employment, or if such termination of your employment
is the result of an Involuntary Termination at least one year prior to such
Change in Control. An election under clause (b) 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 termination of your employment. Any special election
made under clause (a) or (b) 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 same manner as provided in the last sentence of the second paragraph of
Section 4.
The lump sum payment to be made to you pursuant to your election under
clause (a) of the second preceding paragraph shall be in an amount that is
"Actuarially Equivalent" (as defined below and determined as of the first day of
the month following the date of your termination of employment) to the
Supplemental Pension that otherwise would be payable to you hereunder if payment
of your Supplemental Pension and the pension payable to you under the GPU
Retirement Plans (i) were to commence on your Normal Retirement Date (as defined
in the EPP) or, if earlier, on the earliest date as of which you could elect to
have payment of your pension under the GPU Retirement Plans commence, and (ii)
were to be made in the form of a single life annuity. The lump sum payment to be
made to your surviving spouse pursuant to your election under clause (a) of the
second preceding paragraph shall be in an amount that is Actuarially Equivalent
(as defined below and determined as of the first day of the month following the
date of your death) to the Survivor's Annuity that otherwise would be payable to
your surviving spouse pursuant to Section 3 hereof.
5
<PAGE>
The lump sum payment to be made to you or your surviving spouse
pursuant to your election under clause (a) of the second preceding paragraph
shall be made by no later than thirty (30) days following the date of your
termination of employment.
The lump sum payment to be made pursuant to your election under clause
(b) of the third preceding paragraph shall be in an amount that is Actuarially
Equivalent (as defined below 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
your Supplemental Pension 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.
For purposes of this Section 5, "Actuarially Equivalent" shall mean,
with respect to any distribution or payment, an actuarially equivalent amount,
calculated by using the annual interest rate on 30-year Treasury securities for
the second month preceding the calendar year in which such distribution is made
or commences, and the mortality table prescribed for purposes of Section 417 (e)
(3) (A) (ii) (I) of the Internal Revenue Code of 1986, as amended (the "Code") .
Such annual interest rate and mortality table shall be as specified or
prescribed by the Commissioner of the Internal Revenue Service for purposes of
Section 417(e)(3)(A)(ii) of the Code in revenue rulings, notices or other
guidance.
6. SERP Benefit. In determining your eligibility for benefits under
the SERP and the amount of any Supplemental Pension Benefit payable to you
thereunder:
(a) The number of additional years of Creditable Service taken
into account pursuant to Section 1(a)(ii) in determining the amount of
the Supplemental Pension payable to you hereunder shall be included in
your "Years of Service" as defined in the SERP; and
(b) The reduction required to be made in Section 4(a)(ii) of
the SERP in the amount of the Supplemental Pension Benefit otherwise
payable to you by reason of the pension amounts payable to you under
your Other Retirement Plans, shall be made by taking into account the
Applicable Percentage of such pension amounts as determined under
Section 1(b)(ii) of this Agreement.
7. Other Benefits. In the case of each benefit plan maintained by any
of the GPU Companies in which senior GPU executives are eligible to participate
that provides a benefit
6
<PAGE>
the amount of which depends, directly or indirectly, on the number of years of a
participant's service with the GPU Companies, you shall receive the same benefit
amount that would be payable to you under such plan if you were treated as
having, in addition to your actual years of service, the number of additional
years of service determined under Section 1(a)(i) . The number of additional
years of service so determined shall also be taken into account in determining
your eligibility to participate in any benefit plan maintained by any of the GPU
Companies in which senior GPU executives are eligible to participate that
requires, as a condition for eligibility, the completion of a specified number
of years of service with the GPU Companies.
8. Nature of Your Rights. You and your surviving spouse shall have the
status of a mere unsecured creditor of GPUS with respect to your, and her, right
to receive any payment under this Agreement. This Agreement shall constitute a
mere promise by GPUS to make payments in the future of the benefits provided for
herein. It is intended that the arrangements reflected in this Agreement be
treated as unfunded for tax purposes, as well as for purposes of Title I of
ERISA.
9. Nonassignability. Your rights and your surviving spouse's rights to
payments under this Agreement shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment by your creditors or the creditors of your spouse or
any other beneficiary.
If the foregoing correctly reflects your understanding of the agreement
between you and GPUS as to your Supplemental Pension and other benefits covered
herein, will you please soindicate on the enclosed duplicate copy of this letter
which will then constitute a binding agreement between GPUS on the one hand, and
you, on the other.
GPU SERVICE , INC.
By: _____________________________________
Fred D. Hafer, Chairman,
President & Chief Executive Officer
The foregoing correctly
reflects my understanding
and is agreed to by me as of
the date of this letter
____________________________
Michael J. Chesser
7
<PAGE>
APPENDIX A
"Change in Control" shall mean:
(1) An acquisition (other than directly from GPU, Inc. ("GPU" ) of
any common stock of GPU ("Common Stock") or other voting securities of GPU
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 GPU'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) GPU 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 GPU (for
purposes of this definition, a "Subsidiary"), (B) GPU 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 GPU (the "Incumbent Board"), cease for any reason to
constitute at least seventy percent (70%) of the members of the Board of
Directors of GPU (the "Board"); provided, however, that if the election, or
nomination for election by GPU'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 Agreement, 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 (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-1
<PAGE>
(A) A merger, consolidation or reorganization with or into GPU
or in which securities of GPU 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 GPU or in which securities of GPU are
issued where:
(i) the shareholders of GPU, 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) GPU, (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 GPU 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 GPU, 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 GPU; or
(C) The sale or other disposition of all or substantially all of
the assets of GPU 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
A-2
<PAGE>
amount of the then outstanding Common Stock or Voting Securities as a result of
the acquisition of Common Stock or Voting Securities by GPU 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 GPU, and after such share acquisition by GPU, 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.
"Involuntary Termination" shall mean the termination of your employment
with the GPU Companies (A) by any GPU Company, for any reason, or (B) by you,
for "Good Reason", or (C) solely for purposes of Section 5, as a result of your
death. If the termination of your employment by any GPU Company is (1) within
twelve (12) months prior to a Change in Control or (2) prior to the date of a
Change in Control but you reasonably demonstrate that the termination (A) 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 (B) otherwise arose in connection with, or in anticipation of, a
Change in Control which has been threatened or proposed and which actually
occurs, such termination shall be deemed to have occurred after a Change in
Control for purposes of Section 2.
"Good Reason" shall mean the occurrence after a Change in Control of
any of the following events or conditions:
(1) a change in your status, title, position or responsibilities
(including reporting responsibilities) which, in your reasonable judgment,
represents an adverse change from your status, title, position or
responsibilities as in effect immediately prior thereto; the assignment to you
of any duties or responsibilities which, in your reasonable judgment, are
inconsistent with your status, title, position or responsibilities; or any
removal of you from or failure to reappoint or reelect you to any of such
offices or positions, except in connection with the termination of your
employment for disability, cause, as a result of your death or by you other than
for Good Reason;
(2) a reduction in the rate of your annual base salary;
A-3
<PAGE>
(3) any change in location of your place of employment to a
location other than Reading, Pennsylvania without your consent;
(4) the failure by the GPU Companies to pay to you any portion of
your current compensation or to pay to you any portion of an installment of
deferred compensation under any deferred compensation program of any GPU Company
in which you participated, within seven (7) days of the date such compensation
is due;
(5) the failure by the GPU Companies (A) to continue in effect
(without reduction in benefit level, and/or reward opportunities) any material
compensation or employee benefit plan in which you were participating
immediately prior to such failure by the GPU Companies, unless a substitute or
replacement plan has been implemented which provides substantially identical
compensation or benefits to you or (B) to continue to provide you with
compensation and benefits, in the aggregate, at least equal (in terms of benefit
levels and/or reward opportunities) to those provided for under each other
compensation or employee benefit plan, program and practice in which you were
participating immediately prior to such failure by the GPU Companies;
(6) the failure of GPUS to obtain a satisfactory agreement from
any successors or assigns to assume and agree to honor and perform GPUS's
obligations under this Agreement; or
(7) any purported termination of your employment which is not
effected pursuant to a Notice of Termination as that term is defined in your
Severance Agreement dated April 17, 2000.
Any event or condition described in clauses (1) through (7) 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 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, shall constitute Good
Reason for purposes of this Agreement notwithstanding that it occurred prior to
a Change in Control.
A-4
Exhibit C-154
METROPOLITAN EDISON COMPANY
AND
UNITED STATES TRUST COMPANY OF NEW YORK
TRUSTEE
-----------------
INDENTURE
DATED AS OF JULY 1, 1999
===========================================================
<PAGE>
CROSS REFERENCE SHEET SHOWING THE LOCATION IN THE INDENTURE
OF THE PROVISIONS INSERTED PURSUANT TO SECTIONS 310
THROUGH 318(a),INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939
Trust Indenture Act Indenture
Section Section
310 (a) (1)......................................................9.09
(a) (2)......................................................9.09
(a) (3)............................................Not Applicable
(a) (4)............................................Not Applicable
(a) (5) .....................................................9.09
(b)..........................................................9.08
(c)................................................Not Applicable
311 (a)......................................................... 9.14
(b)..........................................................9.14
(c)................................................Not Applicable
312 (a)..............................................7.01 and 7.02(a)
(b).......................................................7.02(b)
(c).......................................................7.02(c)
313 (a).......................................................7.04(a)
(b). .....................................................7.04(b)
(c). .....................................................7.04(d)
(d).......................................................7.04(c)
314 (a).................................................7.03 and 6.06
(b)..........................................................6.05
(c) (1)............................................1.03 and 15.05
(c) (2)............................................1.03 and 15.05
(c) (3)............................................Not Applicable
(d).................................................1.03 and 4.04
(e)......................................................15.05(b)
(f) ...............................................Not Applicable
315 (a)..........................................................9.01
(b)..........................................................8.08
(c).......................................................9.01(a)
(d).......................................................9.01(b)
(e)..........................................................8.09
316 (a) ...............................................8.07 and 10.04
(b).............................................8.04(b) and 13.02
(c).........................................................10.06
317 (a)(1) ...................................................8.02(b)
(a) (2)...................................................8.02(c)
(b).................................................5.02 and 6.04
318 (a).........................................................15.07
- -------------------
NOTE: This cross-reference sheet shall not, for any purpose, be deemed to be
a part of the Indenture.
ii
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 General......................................................1
Section 1.02 Trust Indenture Act..........................................2
Section 1.03 Definitions..................................................2
ARTICLE II
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
Section 2.01 Form Generally. .............................................11
Section 2.02 Form Of Trustee's Certificate Of Authentication..............11
Section 2.03 Amount Unlimited.............................................12
Section 2.04 Denominations, Dates, Interest Payment
And Record Dates ............................................12
Section 2.05 Execution, Authentication, Delivery And Dating...............13
Section 2.06 Exchange And Registration Of Transfer Of Notes...............18
Section 2.07 Mutilated, Destroyed, Lost Or Stolen Notes...................20
Section 2.08 Temporary Notes..............................................21
Section 2.09 Cancellation Of Notes Paid, Etc..............................21
Section 2.10 Interest Rights Preserved....................................21
Section 2.11 Special Record Date..........................................22
Section 2.12 Payment Of Notes.............................................22
Section 2.13 Notes Issuable In The Form Of A Global Note..................23
Section 2.14 Cusip Numbers................................................26
ARTICLE III
REDEMPTION OF NOTES
Section 3.01 Applicability Of Article.....................................27
Section 3.02 Notice Of Redemption; Selection Of Notes.....................27
Section 3.03 Payment Of Notes On Redemption; Deposit Of
Redemption Price.............................................28
<PAGE>
ARTICLE IV
SENIOR NOTE FIRST MORTGAGE BONDS
Section 4.01 Senior Note First Mortgage Bonds Held
By The Trustee...............................................30
Section 4.02 No Transfer Of Senior Note First Mortgage
Bonds; Exceptions............................................30
Section 4.03 Delivery To The Company Of All Senior Note
First Mortgage Bonds.........................................31
Section 4.04 Fair Value Certificate.......................................31
Section 4.05 Further Assurances...........................................32
Section 4.06 Exchange And Surrender Of Senior Note
First Mortgage Bonds.........................................33
Section 4.07 Acceptance Of Additional Senior Note First
Mortgage Bonds...............................................33
Section 4.08 Terms Of Senior Note First Mortgage Bonds....................34
Section 4.09 Senior Note First Mortgage Bonds As Security
For Notes....................................................34
ARTICLE V
SATISFACTION AND DISCHARGE;
UNCLAIMED MONEYS
Section 5.01 Satisfaction And Discharge...................................35
Section 5.02 Deposited Moneys To Be Held In Trust
By Trustee...................................................38
Section 5.03 Paying Agent To Repay Moneys Held............................38
Section 5.04 Return Of Unclaimed Moneys...................................38
ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01 Payment Of Principal And Interest............................39
Section 6.02 Offices For Payments, Etc....................................39
Section 6.03 Appointment To Fill A Vacancy In Office
Of Trustee...................................................40
Section 6.04 Provision As To Paying Agent. ...............................40
Section 6.05 Opinions Of Counsel..........................................41
Section 6.06 Certificates And Notice To Trustee...........................42
Section 6.07 Restrictions On Liens........................................42
Section 6.08 Restrictions On Sale And Lease-Back
Transactions.................................................45
Section 6.09 Corporate Existence..........................................46
ii
<PAGE>
ARTICLE VII
NOTEHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 7.01 Company To Furnish Noteholder Lists..........................46
Section 7.02 Preservation and Disclosure of Noteholder Lists..............46
Section 7.03 Reports By The Company.......................................48
Section 7.04 Reports By The Trustee.......................................49
ARTICLE VIII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENTS OF DEFAULT
Section 8.01 Events Of Default............................................50
Section 8.02 Collection Of Indebtedness By Trustee;
Trustee May Prove Debt.......................................52
Section 8.03 Application Of Proceeds......................................55
Section 8.04 Limitations On Suits By Noteholders..........................56
Section 8.05 Suits For Enforcement........................................57
Section 8.06 Powers And Remedies Cumulative; Delay Or
Omission Not Waiver Of Default...............................57
Section 8.07 Direction of Proceedings and Waiver of
Defaults By Majority of Noteholders..........................58
Section 8.08 Notice of Default............................................58
Section 8.09 Undertaking To Pay Costs.....................................59
Section 8.10 Restoration of Rights on Abandonment of
Proceedings..................................................59
Section 8.11 Defaults Under The First Mortgage............................59
Section 8.12 Waiver of Usury, Stay or Extension Laws......................60
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 Duties and Responsibilities of Trustee.......................60
Section 9.02 Reliance on Documents, Opinions, Etc.........................61
Section 9.03 No Responsibility For Recitals, Etc..........................63
Section 9.04 Trustee, Authenticating Agent, Paying
Agent Or Registrar May Own Notes.............................63
Section 9.05 Moneys To Be Held In Trust...................................63
Section 9.06 Compensation And Expenses Of Trustee.........................63
Section 9.07 Officers' Certificate As Evidence............................64
Section 9.08 Conflicting Interest Of Trustee..............................64
iii
<PAGE>
Section 9.09 Existence And Eligibility Of Trustee.........................64
Section 9.10 Resignation Or Removal Of Trustee............................65
Section 9.11 Appointment Of Successor Trustee.............................66
Section 9.12 Acceptance By Successor Trustee..............................66
Section 9.13 Succession By Merger, Etc....................................67
Section 9.14 Limitations On Rights Of Trustee As A Creditor...............68
Section 9.15 Authenticating Agent.........................................68
ARTICLE X
CONCERNING THE NOTEHOLDERS
Section 10.01 Action By Noteholders........................................69
Section 10.02 Proof Of Execution By Noteholders............................69
Section 10.03 Persons Deemed Absolute Owners. .............................70
Section 10.04 Company-Owned Notes Disregarded..............................70
Section 10.05 Revocation Of Consents; Future Holders Bound. ...............70
Section 10.06 Record Date For Noteholder Acts..............................71
ARTICLE XI
NOTEHOLDERS' MEETING
Section 11.01 Purposes Of Meetings.........................................71
Section 11.02 Call Of Meetings By Trustee..................................72
Section 11.03 Call Of Meetings By Company Or Noteholders...................72
Section 11.04 Qualifications For Voting.. .................................72
Section 11.05 Regulations..................................................73
Section 11.06 Voting. .....................................................73
Section 11.07 Rights Of Trustee Or Noteholders Not Delayed.................74
ARTICLE XII
CONSOLIDATION, MERGER, SALE, TRANSFER OR CONVEYANCE
Section 12.01 Company May Consolidate, Etc. Only On
Certain Terms................................................74
Section 12.02 Successor Corporation Substituted............................75
iv
<PAGE>
ARTICLE XIII
SUPPLEMENTAL INDENTURES
Section 13.01 Supplemental Indentures Without Consent
Of Noteholders...............................................76
Section 13.02 Supplemental Indentures With Consent
Of Noteholders...............................................77
Section 13.03 Compliance With Trust Indenture Act;
Effect Of Supplemental Indentures............................79
Section 13.04 Notation On Notes............................................79
Section 13.05 Evidence Of Compliance Of Supplemental
Indenture To Be Furnished Trustee............................79
ARTICLE XIV
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01 Indenture And Notes Solely Corporate
Obligations..................................................80
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01 Provisions Binding On Company's Successors...................80
Section 15.02 Official Acts By Successor Corporation.......................80
Section 15.03 Notices......................................................80
Section 15.04 Governing Law................................................81
Section 15.05 Evidence Of Compliance With Conditions
Precedent....................................................81
Section 15.06 Business Days................................................83
Section 15.07 Trust Indenture Act To Control...............................83
Section 15.08 Table Of Contents, Headings, Etc.............................83
Section 15.09 Execution In Counterparts....................................83
Section 15.10 Manner Of Mailing Notice To Noteholders......................83
Section 15.11 Approval By Trustee Of Expert Or Counsel.....................84
EXHIBIT A - Form of Global Note Prior to Release Date...................A-1
EXHIBIT B - Form of Note Prior to Release Date..........................B-1
EXHIBIT C - Form of Global Note Following Release Date..................C-1
EXHIBIT D - Form of Note Following Release Date.........................D-1
v
<PAGE>
THIS INDENTURE, dated as of July 1, 1999, between METROPOLITAN EDISON
COMPANY, a corporation duly organized and existing under the laws of the
Commonwealth of Pennsylvania (the "COMPANY"), and UNITED STATES TRUST COMPANY OF
NEW YORK, as trustee (the "TRUSTEE").
WITNESSETH
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its Notes (as hereinafter defined), to be issued
as in this Indenture provided;
WHEREAS, subject to the terms and provisions hereof including Section
4.09 hereof, the Company may issue and deliver Senior Note First Mortgage Bonds
(as hereinafter defined) from time to time to the Trustee to hold in trust for
the benefit of the respective Holders (as hereinafter defined) from time to time
of the Notes or require the Trustee to deliver to the Company, for cancellation,
any and all Senior Note First Mortgage Bonds held by the Trustee;
AND WHEREAS, all acts and things necessary to make this Indenture a
valid agreement according to its terms have been done and performed, and the
execution of this Indenture has in all respects been duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes
are, and are to be authenticated, issued and delivered, and in consideration of
the premises, of the purchase and acceptance of the Notes by the Holders thereof
and of the sum of one dollar duly paid to it by the Trustee at the execution of
this Indenture, the receipt whereof is hereby acknowledged, the Company,
intending to be legally bound hereby, covenants and agrees with the Trustee for
the equal and proportionate benefit of the respective Holders from time to time
of the Notes, as follows:
ARTICLE I
DEFINITIONS
Section 1.01 General. The terms defined in this Article I (whether or
not capitalized and except as herein otherwise
<PAGE>
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Article I.
Section 1.02 Trust Indenture Act. (a) Whenever this Indenture refers to
a provision of the Trust Indenture Act of 1939, as amended (the "TIA"), such
provision is incorporated by reference in and made a part of this Indenture.
(b) Unless otherwise indicated, all terms used in this
Indenture that are defined by the TIA, defined by the TIA by reference to
another statute or defined by a rule of the Commission under the TIA shall have
the meanings assigned to them in the TIA or such statute or rule as in force on
the date of execution of this Indenture.
Section 1.03 Definitions. For purposes of this Indenture, the following
terms shall have the following meanings.
"Authenticating Agent" shall mean any agent of the Trustee which shall
be appointed and acting pursuant to Section 9.15 hereof.
"Authorized Agent" shall mean any agent of the Company designated as
such by an Officers' Certificate delivered to the Trustee.
"Board Of Directors" shall mean the Board of Directors of the Company
or the Executive Committee of such Board or any other duly authorized committee
of such Board.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or any duly authorized committee thereof and to be in
full force and effect on the date of such certification.
"Business Day" shall mean each day that is not a day on which banking
institutions or trust companies in the Borough of Manhattan, the City and State
of New York, or in the city where the corporate trust office of the Trustee is
located, are obligated or authorized by law or executive order to close.
"Capital Lease" shall mean any lease which has been or would be
capitalized on the books of the lessee in accordance with GAAP.
2
<PAGE>
"Capitalization" shall mean the total of all the following items
appearing on, or included in, the consolidated balance sheet of the Company: (i)
liabilities for Debt maturing more than twelve (12) months from the date of
determination; and (ii) common stock, preferred stock, Hybrid Preferred
Securities, premium on capital stock, capital surplus, capital in excess of par
value, and retained earnings (however the foregoing may be designated), less, to
the extent not otherwise deducted, the cost of shares of capital stock of the
Company held in its treasury. Subject to the foregoing, Capitalization shall be
determined in accordance with GAAP and practices applicable to the type of
business in which the Company is engaged and that are approved by independent
accountants regularly retained by the Company, and may be determined as of a
date not more than sixty (60) days prior to the happening of an event for which
such determination is being made.
"Commission" shall mean the United States Securities and Exchange
Commission, or if at any time hereafter the Commission is not existing or
performing the duties now assigned to it under the TIA, then the body performing
such duties.
"Company" shall mean the corporation named as the "Company" in the
first paragraph of this Indenture, and its successors and assigns permitted
hereunder.
"Company Order" shall mean a written order signed in the name of the
Company by one of the Chairman, the President, any Vice President (whether or
not designated by a number or numbers or a word or words added before or after
the title "Vice President"), the Treasurer or an Assistant Treasurer, of the
Company, and delivered to the Trustee. At the Company's option, a Company Order
may take the form of a supplemental indenture to this Indenture.
"Consolidated Subsidiary" shall mean any Subsidiary whose accounts are
or are required to be consolidated with the accounts of the Company in
accordance with GAAP.
"Corporate Trust Office of The Trustee", or other similar term, shall
mean the corporate trust office of the Trustee, at which at any particular time
its corporate trust business shall be principally administered, which office is
at the date of the execution of this Indenture located at 114 West 47th Street,
25th Floor, New York, New York, 10036-1532.
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"Debt" shall mean any outstanding debt for money borrowed evidenced by
notes, debentures, bonds, or other securities, or guarantees of any thereof.
"Depositary" shall mean, unless otherwise specified in a Company Order
pursuant to Section 2.05 hereof, The Depository Trust Company, New York, New
York, or any successor thereto registered and qualified as a clearing agency
under the Exchange Act, or other applicable statute or regulation.
"Event Of Default" shall mean any event specified in Section 8.01
hereof, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Expert" shall mean any officer of the Company familiar with the terms
of the First Mortgage and this Indenture, any law firm, any investment banking
firm, or any other Person, satisfactory in the reasonable judgment of the
Trustee.
"First Mortgage" shall mean the Indenture, dated November 1, 1944, from
the Company to United States Trust Company of New York, as successor trustee, as
supplemented and amended from time to time.
"First Mortgage Bonds" shall mean all first mortgage bonds issued by
the Company and outstanding under the First Mortgage, including Senior Note
First Mortgage Bonds.
"GAAP" shall mean generally accepted accounting principles in the
United States of America, applied on a basis consistent with those used in the
preparation of any financial statements referred to herein, unless otherwise
stated herein.
"Global Note" shall mean a Note that, pursuant to Section 2.05 hereof,
is issued to evidence Notes, that is delivered to the Depositary or pursuant to
the instructions of the Depositary and that shall be registered in the name of
the Depositary or its nominee.
"Hybrid Preferred Securities" shall mean any preferred securities
issued by a Hybrid Preferred Securities Subsidiary, where such preferred
securities have the following characteristics:
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(i) such Hybrid Preferred Securities Subsidiary lends
substantially all of the proceeds from the issuance of such preferred securities
to the Company, or a wholly owned subsidiary of the Company, in exchange for
Subordinated Indebtedness issued by the Company;
(ii) such preferred securities contain terms providing for the
deferral of interest payments corresponding to provisions providing for the
deferral of interest payments on the related Subordinated Indebtedness; and
(iii) the Company makes periodic interest payments on the
related Subordinated Indebtedness, which interest payments are in turn used by
the Hybrid Preferred Securities Subsidiary to make corresponding payments to the
holders of the preferred securities.
"Hybrid Preferred Securities Subsidiary" shall mean any limited
partnership or business trust (or similar entity) (i) all of the general
partnership or common equity interest of which is owned (either directly or
indirectly through one or more wholly-owned Subsidiaries of the Company or any
Consolidated Subsidiary of the Company) at all times by the Company, (ii) that
has been formed for the purpose of issuing Hybrid Preferred Securities and (iii)
substantially all of the assets of which consist at all times solely of
Subordinated Indebtedness issued by the Company and payments made from time to
time on such Subordinated Indebtedness.
"Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
"Interest Payment Date" shall mean (a) each date designated as such for
the payment of interest on a Note specified in a Company Order pursuant to
Section 2.05 hereof (provided that the first Interest Payment Date for any Note,
the Original Issue Date of which is after a Regular Record Date but prior to the
respective Interest Payment Date, shall be the Interest Payment Date following
the next succeeding Regular Record Date), (b) a date of Maturity of such Note
and (c) only with respect to defaulted interest on such Note, the date
established by the Trustee for the payment of such defaulted interest pursuant
to Section 2.11 hereof.
"Lien" shall mean any mortgage, security interest, pledge or lien.
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"Maturity" or "Maturity Date" when used with respect to any Note, shall
mean the date on which the principal of such Note (together with all accrued
interest thereon) becomes due and payable as therein or herein provided, whether
at the Stated Maturity thereof or by declaration of acceleration, redemption or
otherwise.
"Mortgage Trustee" shall mean the Person serving as trustee at the time
under the First Mortgage.
"Note" or "Notes" shall mean any Note or Notes, as the case may be,
authenticated and delivered under this Indenture, including any Global Note.
"Noteholder", "Holder of Notes" or "Holder" shall mean any Person in
whose name at the time a particular Note is registered on the books of the
Trustee kept for that purpose in accordance with the terms hereof.
"Officers' Certificate" when used with respect to the Company, shall
mean a certificate signed by one of the Chairman, the President, any Vice
President (whether or not designated by a number or numbers or a word or words
added before or after the title "Vice President"), and by one of the Chief
Financial Officer, Treasurer, any Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company; provided, that no individual shall be
entitled to sign in more than one capacity.
"Operating Property" shall mean (i) any interest in real property owned
by the Company and (ii) any asset owned by the Company that is depreciable in
accordance with GAAP, excluding, in either case, any interest of the Company as
lessee under a Capital Lease (except for a lease that results from a Sale and
Lease-Back Transaction).
"Opinion Of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of the Company, meeting the applicable
requirements of Section 15.05 hereof. If the Indenture requires the delivery of
an Opinion of Counsel to the Trustee, the text and substance of which has been
previously delivered to the Trustee, the Company may satisfy such requirement by
the delivery by the legal counsel that delivered such previous Opinion of
Counsel of a letter to the Trustee to the effect that the Trustee may rely on
such previous Opinion of Counsel as if such Opinion of Counsel was dated and
delivered the date delivery of such Opinion of Counsel is required. Any
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Opinion of Counsel may contain reasonable conditions and qualifications
satisfactory to the Trustee.
"Original Issue Date" shall mean for a Note, or portion thereof, the
date upon which it, or such portion, was issued by the Company pursuant to this
Indenture and authenticated by the Trustee (other than in connection with a
transfer, exchange or substitution).
"Outstanding", when used with reference to Notes, shall, subject to
Section 10.04 hereof, mean, as of any particular time, all Notes authenticated
and delivered by the Trustee under this Indenture, except
(a) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or redemption
of which moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Company), provided that if
such Notes are to be redeemed prior to the Maturity thereof, notice of such
redemption shall have been given as provided in Article III, or provisions
satisfactory to the Trustee shall have been made for giving such notice;
(c) Notes, or portions thereof, that have been paid and
discharged or are deemed to have been paid and discharged pursuant to the
provisions of this Indenture; and
(d) Notes in lieu of or in substitution for which other Notes
shall have been authenticated and delivered, or which have been paid, pursuant
to Section 2.07 hereof.
"Person" shall mean any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agent or political subdivision
thereof.
"Principal Executive Offices Of The Company" shall mean 2800 Pottsville
Pike, Reading, Pennsylvania 19605, or such other place where the main corporate
offices of the Company are located as designated in writing to the Trustee by an
Authorized Agent.
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"Regular Record Date" shall mean, unless otherwise specified in a
Company Order pursuant to Section 2.05, for an Interest Payment Date for a
particular Note (except for an Interest Payment Date with respect to defaulted
interest on such Note) (a) the fifteenth day of the calendar month next
preceding each Interest Payment Date (unless the Interest Payment Date is the
date of Maturity of such Note, in which event, the Regular Record Date shall be
as described in clause (b) hereof) and (b) the date of Maturity of such Note.
"Related Notes", when used in reference to any Senior Note First
Mortgage Bonds, shall mean the Notes in respect of which such Senior Note First
Mortgage Bonds were delivered to the Trustee pursuant to Section 4.07 hereof
upon the initial authentication and issuance of such Notes pursuant to Section
2.05 hereof.
"Related Senior Note First Mortgage Bonds, when used in reference to
any Notes, shall mean the series of Senior Note First Mortgage Bonds delivered
to the Trustee pursuant to Section 4.07 hereof in connection with the initial
authentication and issuance of such Notes pursuant to Section 2.05 hereof.
"Release Date" shall mean the earlier of (i) the date that all First
Mortgage Bonds, other than the Senior Note First Mortgage Bonds, have been
retired (whether at, before or after the maturity thereof) through payment,
redemption, purchase, defeasance or otherwise, and (ii) the date upon which the
Trustee holds Senior Note First Mortgage Bonds constituting not less than 80% in
aggregate principal amount of all outstanding First Mortgage Bonds; provided
that the Company shall have delivered to the Trustee (A) an Officers'
Certificate stating the existence of the facts in either clause (i) or (ii)
above and that, upon giving effect to the Release Date, no Event of Default or
event or condition the occurrence or existence of which would, with the lapse of
time or the giving of notice or both, become an Event of Default will have
occurred and be continuing, (B) the certificate of an Expert required pursuant
to Section 4.04(b) hereof and (C) the Officers' Certificate and Opinion of
Counsel required pursuant to Section 15.05 hereof.
"Responsible Officer" or "Responsible Officers" when used with respect
to the Trustee shall mean one or more of the following: the chairman of the
board of directors, the vice chairman of the board of directors, the chairman of
the executive committee, the president, any vice president (whether
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or not designated by a number or a word or words added before or after the title
"Vice President"), the secretary, the treasurer, any trust officer, any
assistant trust officer, any second or assistant vice president, any assistant
secretary, any assistant treasurer, or any other officer or assistant officer of
the Trustee customarily performing functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Sale and Lease-Back Transaction" shall mean any arrangement with any
Person providing for the leasing to the Company of any Operating Property
(except for leases for a term, including any renewal thereof, of not more than
forty-eight (48) months), which Operating Property has been or is to be sold or
transferred by the Company to such Person; provided, however, Sale and
Lease-Back Transaction shall not include any arrangement first entered into
prior to the date of this Indenture.
"Senior Note First Mortgage Bonds" shall mean any first mortgage bonds
issued by the Company under the First Mortgage pursuant to supplemental
indentures to the First Mortgage and delivered to the Trustee pursuant to
Section 4.07 hereof.
"Special Record Date" shall mean, with respect to any Note, the date
established by the Trustee in connection with the payment of defaulted interest
on such Note pursuant to Section 2.11 hereof.
"Stated Maturity" shall mean with respect to any Note, the last date on
which principal on such Note becomes due and payable as therein or herein
provided, other than by declaration of acceleration or by redemption.
"Subordinated Indebtedness" shall mean any unsecured Debt of the
Company (i) issued in exchange for the proceeds of Hybrid Preferred Securities
and (ii) subordinated to the rights of the Holders hereunder.
"Subsidiary" shall mean, as to any Person, any corporation or other
entity of which at least a majority of the securities or other ownership
interest having ordinary voting power (absolutely or contingently) for the
election of directors or other Persons performing similar functions are at the
time owned directly or indirectly by such Person.
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"Tangible Assets" shall mean the amount shown as total assets on the
consolidated balance sheet of the Company, less the following: (i) intangible
assets including, but without limitation, such items as goodwill, trademarks,
trade names, patents, and unamortized debt discount and expense and (ii)
appropriate adjustments, if any, on account of minority interests. Tangible
Assets shall be determined in accordance with GAAP and practices applicable to
the type of business in which the Company is engaged and that are approved by
the independent accountants regularly retained by the Company, and may be
determined as of a date not more than sixty (60) days prior to the happening of
the event for which such determination is being made.
"Trustee" shall mean United States Trust Company of New York and,
subject to Article IX, shall also include any successor Trustee.
"U.S. Government Obligations" shall mean (i) direct non-callable
obligations of, or non-callable obligations guaranteed as to timely payment of
principal and interest by, the United States of America or obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
thereof for the payment of which obligations or guarantee the full faith and
credit of the United States is pledged, or (ii) certificates or receipts
representing direct ownership interests in obligations or specified portions
(such as principal or interest) of obligations described in clause (i) above,
which obligations are held by a custodian in safekeeping in a manner
satisfactory to the Trustee.
"Value" shall mean, with respect to a Sale and Lease-Back Transaction,
as of any particular time, the amount equal to the greater of (i) the net
proceeds to the Company from the sale or transfer of the property leased
pursuant to such Sale and Lease-Back Transaction and (ii) the net book value of
such property, as determined in accordance with GAAP by the Company, in either
case multiplied by a fraction, the numerator of which shall be equal to the
number of full years of the term of the lease that is part of such Sale and
Lease-Back Transaction remaining at the time of determination and the
denominator of which shall be equal to the number of full years of such term,
without regard, in any case, to any renewal or extension options contained in
such lease.
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ARTICLE II
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
Section 2.01 Form Generally.
(a) If the Notes are in the form of a Global Note they shall be in
substantially the form set forth in Exhibit A (or, following the Release Date,
Exhibit C) to this Indenture, and, if the Notes are not in the form of a Global
Note, they shall be in substantially the form set forth in Exhibit B (or,
following the Release Date, Exhibit D) to this Indenture, or, in any case, in
such other form as shall be established by a Board Resolution, or a Company
Order pursuant to a Board Resolution, or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, or any
indentures supplemental hereto, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with applicable rules of any securities exchange or of the
Depositary or with applicable law or as may, consistently herewith, be
determined by the officers executing such Notes, as evidenced by their execution
of such Notes.
(b) The definitive Notes shall be typed, printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Notes, as evidenced by their
execution of such Notes.
Section 2.02 Form Of Trustee's Certificate Of Authentication. The
Trustee's certificate of authentication on all Notes shall be in substantially
the following form:
Trustee's Certificate of Authentication
This Note is one of the Notes of the series herein designated,
described or provided for in the within-mentioned Indenture.
United States Trust Company of New York
By:______________________________
Authorized Officer
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Section 2.03 Amount Unlimited. The aggregate principal amount of Notes
that may be authenticated and delivered under this Indenture is unlimited,
subject to compliance with the provisions of this Indenture.
Section 2.04 Denominations, Dates, Interest Payment And Record Dates
(a) The Notes shall be issuable in registered form without coupons in
denominations of $1,000 and integral multiples thereof or such other amount or
amounts as may be authorized by the Board of Directors or a Company Order
pursuant to a Board Resolution or in one or more indentures supplemental hereto;
provided, that the principal amount of a Global Note shall not exceed
$200,000,000 unless otherwise permitted by the Depositary.
(b) Each Note shall be dated and issued as of the date of its
authentication by the Trustee, and shall bear an Original Issue Date; each Note
issued upon transfer, exchange or substitution of a Note shall bear the Original
Issue Date or Dates of such transferred, exchanged or substituted Note, subject
to the provisions of Section 2.13(e) hereof.
(c) Each Note shall bear interest from the later of (1) its Original
Issue Date or the date specified in such Note or (2) the most recent date to
which interest has been paid or duly provided for with respect to such Note, in
each case until the principal of such Note is paid or made available for
payment, and interest on each Note shall be payable on each Interest Payment
Date after the Original Issue Date; provided that unless otherwise specified in
a Company Order pursuant to Section 2.05 hereof, the first payment of interest
on any Note with an Original Issue Date between a Regular Record Date and an
Interest Payment Date will be made on the next succeeding Interest Payment Date.
(d) Each Note shall mature on a Stated Maturity specified in the Note.
The principal amount of each Outstanding Note shall be payable on the Maturity
Date or Dates specified therein.
(e) Unless otherwise specified in a Company Order pursuant to Section
2.05 hereof, interest on each of the Notes shall be calculated on the basis of a
360-day year of twelve 30-day months (and for any partial periods shall be
calculated on the basis of the number of days elapsed in a 360-day year of
twelve 30 day months) and shall be computed at a fixed rate until the
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Maturity of such Notes. The method of computing interest on any Notes not
bearing a fixed rate of interest shall be set forth in a Company Order pursuant
to Section 2.05 hereof. Unless otherwise specified in a Company Order pursuant
to Section 2.05 hereof, principal, interest and premium, if any, on the Notes
shall be payable in the currency of the United States.
(f) Except as provided in the following sentence, the Person in whose
name any Note is registered at the close of business on any Regular Record Date
or Special Record Date with respect to an Interest Payment Date for such Note
shall be entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Note upon any registration of transfer,
exchange or substitution of such Note subsequent to such Regular Record Date or
Special Record Date and prior to such Interest Payment Date. Any interest
payable at Maturity shall be paid to the Person to whom the principal of such
Note is payable.
(g) So long as the Trustee is the registrar and paying agent, the
Trustee shall, as soon as practicable but no later than the Regular Record Date
preceding each applicable Interest Payment Date, provide to the Company a list
of the principal, interest and premium to be paid on Notes on such Interest
Payment Date. The Trustee shall assume responsibility for withholding taxes on
interest paid as required by law except with respect to any Global Note.
Section 2.05 Execution, Authentication, Delivery And Dating.
(a) The Notes shall be executed on behalf of the Company by one of its
Chairman, President, any Vice President (whether or not designated by a number
or numbers or a word or words added before or after the title "Vice President"),
its Treasurer or an Assistant Treasurer of the Company and attested by the
Secretary or an Assistant Secretary of the Company. The signature of any of
these officers on the Notes may be manual or facsimile. Typographical and other
minor errors or defects in any such signature shall not affect the validity or
enforceability of any Note that has been duly authenticated and delivered by the
Trustee.
(b) Notes bearing the manual or facsimile signatures of individuals who
were at the time of execution the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such
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offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
(c) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with or preceded by one or more Company
Orders for the authentication and delivery of such Notes, and the Trustee in
accordance with any such Company Order shall authenticate and deliver such
Notes. The Notes shall be issued in series or in tranches of series. Such
Company Order shall specify the following with respect to each series or tranche
of Notes: (i) any limitations on the aggregate principal amount of the Notes to
be issued as part of such series or tranche, (ii) the Original Issue Date for
such series or tranche, (iii) the Stated Maturity or Maturities of Notes of such
series or tranche, (iv) the interest rate or rates, or method of calculation of
such rate or rates, for such series or tranche, the date from which such
interest will accrue and the Interest Payment Dates and Dates and Regular Record
Dates for such series or tranche, (v) the terms, if any, regarding the optional
or mandatory redemption of such series or tranche, including pursuant to any
sinking fund or analogous provisions, including redemption date or dates of such
series or tranche, if any, the period or periods within which such series or
tranche will be redeemed, the price or prices applicable to such redemption and
the terms and conditions upon which such series or tranche may or will be
redeemed, in whole or in part, (vi) the terms, if any, regarding the purchase of
such series or tranche at the option of the Holder, including purchase date or
dates of such series or tranche, if any, the price or prices applicable to such
purchases and the terms and conditions upon which such series or tranche may be
purchased, in whole or in part, (vii) whether or not the Notes of such series or
tranche shall be issued in whole or in part in the form of a Global Note, (viii)
the designation of such series or tranche, (ix) if the form of the Notes of such
series or tranche is not as described in Exhibit A, Exhibit B, Exhibit C or
Exhibit D hereto, the form of the Notes of such series or tranche, (x) the
maximum annual interest rate, if any, of the Notes permitted for such series or
tranche, (xi) any other information necessary to complete the Notes of such
series or tranche, (xii) if prior to the Release Date, the designation of the
Related Senior Note First Mortgage Bonds being delivered to the Trustee in
connection with the issuance of such series or tranche of Notes, (xiii) the
establishment of any office or agency pursuant to Section 6.02 hereof, and (xiv)
any other terms of such series or tranche not inconsistent with this
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Indenture. Prior to authenticating Notes of any series or tranche, and in
accepting the additional responsibilities under this Indenture in relation to
such Notes, the Trustee shall receive from the Company the following at or
before the issuance of the initial Note of such series or tranche of Notes, and
(subject to Section 9.01 hereof) shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked prior to such
issuance:
(1) A Board Resolution authorizing such Company Order or
Orders and, if the form of Notes is established by a Board Resolution
or a Company Order pursuant to a Board Resolution, a copy of such Board
Resolution;
(2) At the option of the Company, either an Opinion of Counsel
or a letter addressed to the Trustee permitting it to rely on an
Opinion of Counsel, stating substantially the following subject to
customary qualifications and exceptions:
(A) if the form of Notes has been
established by or pursuant to a Board Resolution, a Company
Order pursuant to a Board Resolution, or in a supplemental
indenture as permitted by Section 2.01 hereof, that such form
has been established in conformity with this Indenture;
(B) that the Indenture has been duly
authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar
laws of general application relating to or affecting the
enforcement of creditors' rights, the application of general
principles of equity (regardless of whether such application
is made in a proceeding at law or in equity) and by an implied
covenant of good faith and fair dealing and except as
enforcement of provisions of the Indenture may be limited by
state laws affecting the remedies for the enforcement of the
security provided for in the Indenture;
(C) if prior to the Release Date, that the
Related Senior Note First Mortgage Bonds being delivered to
the Trustee in connection with the
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issuance of such series or tranche of Notes have been duly
authorized, executed and delivered, and that such Senior Note
First Mortgage Bonds are valid and binding obligations of the
Company, enforceable in accordance with their terms, except as
may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar
laws of general application relating to or affecting the
enforcement of creditors' rights and the application of
general principles of equity (regardless of whether such
application is made in a proceeding at law or in equity) and
by an implied covenant of good faith and fair dealing and
except as enforcement of provisions thereof may be limited by
state laws affecting the remedies for the enforcement of the
security provided for in the First Mortgage; and that such
Senior Note First Mortgage Bonds are entitled to the benefit
of the First Mortgage, equally and ratably, with all First
Mortgage Bonds outstanding thereunder, except as to sinking
fund provisions;
(D) that the Indenture and, if prior to the
Release Date, the First Mortgage are qualified to the extent
necessary under the TIA;
(E) that such Notes have been duly
authorized and executed by the Company, and when authenticated
by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, except as
may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar
laws of general application relating to or affecting the
enforcement of creditors' rights, the application of general
principles of equity (regardless of whether such application
is made in a proceeding at law or in equity) and by an implied
covenant of good faith and fair dealing and except as
enforcement of provisions of this Indenture may be limited by
state laws affecting the remedies for the enforcement of the
security provided for in this Indenture;
(F) that all consents or approvals of any
federal or state regulatory agency required in connection with
the Company's execution and delivery
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of this Indenture, such series or tranche of Notes and any
Senior Note First Mortgage Bonds have been obtained and are in full force and
effect (except that no statement need be made with respect to state securities
laws);
(G) that the issuance of the Notes and, if
prior to the Release Date, the delivery by the Company of the
Related Senior Note First Mortgage Bonds in connection
therewith, will not result in any default under any of the
terms or covenants contained in this Indenture or, if
applicable, the First Mortgage;
(H) if prior to the Release Date, that the
First Mortgage (except the supplemental indenture establishing
the Related Senior Note First Mortgage Bonds being delivered
to the Trustee in connection with the issuance of such series
or tranche of Notes) and all financing statements have been
duly filed and recorded in all places where such filing or
recording is necessary for the perfection or preservation of
the lien of the First Mortgage, and the First Mortgage
constitutes a valid and perfected first lien upon the property
purported to be covered thereby, subject only to excepted
encumbrances (as defined in the First Mortgage) and to liens
upon the property, if any, specifically identified in such
supplemental indenture prior to its recordation; and
(I) that all conditions that must be met by
the Company to issue Notes under this Indenture have been met.
(3) If prior to the Release Date, the certificate of an Expert
meeting the requirements of Section 4.04(a) hereof and Senior Note
First Mortgage Bonds meeting the requirements of Section 4.08 hereof .
(4) An Officers' Certificate stating that (i) the Company is
not, and upon the authentication by the Trustee of the series of Notes,
will not be in default under any of the terms or covenants contained in
this Indenture, (ii) all conditions that must be met by the Company to
issue Notes under this Indenture have been met, and (iii) if prior to
the Release Date, the Related Senior Note First Mortgage Bonds being
delivered to the Trustee meet the requirements of Section 4.08 hereof.
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(d) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual or facsimile signature of an authorized
officer, and such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
(e) If all Notes of a series or tranche are not to be authenticated and
issued at one time, the Company shall not be required to deliver the Company
Order, Board Resolution, certificate of an Expert, Senior Note First Mortgage
Bonds, Officers' Certificate and Opinion of Counsel (including any of the
foregoing that would be otherwise required pursuant to Section 15.05 hereof)
described in Section 2.05(c) hereof at or prior to the authentication of each
Note of such series or tranche, if such items are delivered at or prior to the
time of authentication of the first Note of such series or tranche to be
authenticated and issued. If all of the Notes of a series or tranche are not
authenticated and issued at one time, for each issuance of Notes after the
initial issuance of Notes, the Company shall be required only to deliver to the
Trustee the Note and a written request (executed by one of the Chairman, the
President, any Vice President, the Treasurer, or an Assistant Treasurer) to the
Trustee to authenticate such Note and to deliver such Note in accordance with
the instructions specified by such request. Any such request shall constitute a
representation and warranty by the Company that the statements made in the
Officers' Certificate delivered to the Trustee prior to the authentication and
issuance of the first Note of such series or tranche are true and correct on the
date thereof as if made on and as of the date thereof.
Section 2.06 Exchange And Registration Of Transfer Of Notes.
(a) Subject to Section 2.13 hereof, Notes of any series or tranche may
be exchanged for one or more new Notes of the same series or tranche of any
authorized denominations and of a like aggregate principal amount, series or
tranche and Stated Maturity and having the same terms and Original Issue Date.
Notes to be exchanged shall be surrendered at any of the offices or agencies to
be maintained pursuant to Section 6.02 hereof, and the Trustee shall
authenticate and deliver in exchange
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therefor the Note or Notes of such series or tranche which the Noteholder making
the exchange shall be entitled to receive.
(b) The Trustee shall keep, at one of said offices or agencies, a
register or registers in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall register or cause to be registered Notes and shall
register or cause to be registered the transfer of Notes as in this Article II
provided. Such register shall be in written form or in any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, such register shall be open for inspection by the Company. Upon due
presentment for registration of transfer of any Note at any such office or
agency, the Company shall execute and the Trustee shall register, authenticate
and deliver in the name of the transferee or transferees one or more new Notes
of any authorized denominations and of a like aggregate principal amount, series
or tranche and Stated Maturity and having the same terms and Original Issue
Date.
(c) All Notes presented for registration of transfer or for exchange,
redemption or payment shall be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee and duly executed by, the Holder or the attorney in fact of such
Holder duly authorized in writing.
(d) No service charge shall be made for any exchange or registration of
transfer of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
(e) The Trustee shall not be required to exchange or register the
transfer of any Notes selected, called or being called for redemption (including
Notes, if any, redeemable at the option of the Holder provided such Notes are
then redeemable at such Holder's option) except, in the case of any Note to be
redeemed in part, the portion thereof not to be so redeemed.
(f) If the principal amount, and any applicable premium, of part, but
not all, of a Note is paid, then upon surrender to the Trustee of such Note, the
Company shall execute, and the Trustee shall authenticate, deliver and register,
a Note in an authorized denomination in aggregate principal amount equal to, and
having the same terms, Original Issue Date, Stated Maturity and series or
tranche as, the unpaid portion of such Note.
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Section 2.07 Mutilated, Destroyed, Lost Or Stolen Notes. (a) If any
Note shall become mutilated or be destroyed, lost or stolen, the Company shall
execute, and upon its written request the Trustee shall authenticate and
deliver, a new Note of like form and principal amount, series or tranche and
Stated Maturity and having the same terms and Original Issue Date and bearing a
number not contemporaneously Outstanding, in exchange and substitution for the
mutilated Note, or in lieu of and in substitution for the Note so destroyed,
lost or stolen. In every case the applicant for a substituted Note shall furnish
to the Company, the Trustee and any paying agent or Authenticating Agent such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft of a Note, the applicant shall
also furnish to the Company and to the Trustee evidence to their satisfaction of
the destruction, loss or theft of such Note and of the ownership thereof.
(b) The Trustee shall authenticate any such substituted Note and
deliver the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Note, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith.
If any Note which has matured, is about to mature, has been redeemed or called
for redemption shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substituted Note, pay or authorize the payment
of the same (without surrender thereof except in the case of a mutilated Note)
if the applicant for such payment shall furnish to the Company, the Trustee and
any paying agent or Authenticating Agent such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction, loss
or theft, evidence satisfactory to the Company and the Trustee of the
destruction, loss or theft of such Note and of the ownership thereof.
(c) Every substituted Note issued pursuant to this Section 2.07 by
virtue of the fact that any Note is mutilated, destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
such destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Notes duly issued hereunder. All Notes shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or
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payment of mutilated, destroyed, lost or stolen Notes and shall preclude to the
full extent permitted by applicable law any and all other rights or remedies
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
Section 2.08 Temporary Notes. Pending the preparation of definitive
Notes, the Company may execute and the Trustee shall authenticate and deliver
temporary Notes (printed, lithographed or otherwise reproduced). Temporary Notes
shall be issuable in any authorized denomination and substantially in the form
of the definitive Notes but with such omissions, insertions and variations as
may be appropriate for temporary Notes, all as may be determined by the Company.
Every such temporary Note shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Notes. Without unreasonable delay the Company shall execute and
shall deliver to the Trustee definitive Notes and thereupon any or all temporary
Notes shall be surrendered in exchange therefor at the Corporate Trust Office of
the Trustee, and the Trustee shall authenticate, deliver and register in
exchange for such temporary Notes an equal aggregate principal amount of
definitive Notes. Such exchange shall be made by the Company at its own expense
and without any charge therefor to the Noteholders. Until so exchanged, the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as definitive Notes authenticated and delivered hereunder.
Section 2.09 Cancellation Of Notes Paid, Etc. All Notes surrendered for
the purpose of payment, redemption, exchange or registration of transfer shall
be surrendered to the Trustee for cancellation and promptly canceled by it and
no Notes shall be issued in lieu thereof except as expressly permitted by this
Indenture. The Company shall surrender to the Trustee any Notes so acquired by
it and such Notes shall be canceled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes so canceled.
Section 2.10 Interest Rights Preserved. Each Note delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Note shall
carry all the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note, and each such Note shall be so dated that neither
gain nor loss of interest shall result from such transfer, exchange or
substitution.
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Section 2.11 Special Record Date. If and to the extent that the Company
fails to make timely payment or provision for timely payment of interest on any
series or tranche of Notes on an Interest Payment Date (other than on an
Interest Payment Date that is a Maturity Date), that interest shall cease to be
payable to the Persons who were the Noteholders of such series or tranche at the
applicable Regular Record Date. In that event, when moneys become available for
payment of the interest, the Trustee shall (a) establish a date of payment of
such interest and a Special Record Date for the payment of that interest, which
Special Record Date shall be not more than 15 or fewer than 10 days prior to the
date of the proposed payment and (b) mail notice of the date of payment and of
the Special Record Date not fewer than 10 days preceding the Special Record Date
to each Noteholder of such series or tranche at the close of business on the
15th day preceding the mailing at the address of such Noteholder, as it appeared
on the register for the Notes. On the day so established by the Trustee the
interest shall be payable to the Holders of the applicable Notes at the close of
business on the Special Record Date.
Section 2.12 Payment Of Notes. Payment of the principal, interest and
premium, if any, on all Notes shall be payable as follows:
(a) On or before 9:30 a.m., New York City time, or such other time as
shall be agreed upon between the Trustee and the Company, of the day on which
payment of principal, interest and premium, if any, is due on any Global Note
pursuant to the terms thereof, the Company shall deliver to the Trustee funds
available on such date sufficient to make such payment, by wire transfer of
immediately available funds or by instructing the Trustee to withdraw sufficient
funds from an account maintained by the Company with the Trustee or such other
method as is acceptable to the Trustee. On or before 12:00 noon, New York City
time, or such other time as shall be agreed upon between the Trustee and the
Depositary, of the day on which any payment of interest is due on any Global
Note (other than at Maturity), the Trustee shall pay to the Depositary such
interest in same day funds. On or before 1:00 p.m., New York City time, or such
other time as shall be agreed upon between the Trustee and the Depositary, of
the day on which principal, interest payable at Maturity and premium, if any, is
due on any Global Note, the Trustee shall deposit with the Depositary the amount
equal to the principal, interest payable at Maturity and premium, if any, by
wire transfer into the account specified by the Depositary. As a condition to
the payment, at Maturity or upon redemption,
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of any part of the principal of, interest on and any applicable premium of any
Global Note, the Depositary shall surrender, or cause to be surrendered, such
Global Note to the Trustee, whereupon a new Global Note shall be issued to the
Depositary pursuant to Section 2.06(f) hereof.
(b) With respect to any Note that is not a Global Note, principal, any
applicable premium and interest due at the Maturity of the Note shall be payable
in immediately available funds when due upon presentation and surrender of such
Note at the Corporate Trust Office of the Trustee or at the authorized office of
any paying agent. Interest on any Note that is not a Global Note (other than
interest payable at Maturity) shall be paid by check payable in clearinghouse
funds mailed to the Holder thereof at such Holder's address as it appears on the
register; provided that if the Trustee receives a written request from any
Holder of Notes, the aggregate principal amount of which having the same
Interest Payment Date equals or exceeds $10,000,000, on or before the applicable
Regular Record Date for such Interest Payment Date, interest on such Note shall
be paid by wire transfer of immediately available funds to a bank within the
continental United States designated by such Holder in its request or by direct
deposit into the account of such Holder designated by such Holder in its request
if such account is maintained with the Trustee or any paying agent.
(c) The Trustee shall receive the Senior Note First Mortgage Bonds from
the Company as provided in this Indenture and shall hold the Senior Note First
Mortgage Bonds, and any and all sums payable thereon or with respect thereto or
realized therefrom, in trust for the benefit of the holders of the Notes, as
herein provided. Subject to Article XIII hereof, all payments made by or on
behalf of the Company to the Trustee on any Senior Note First Mortgage Bonds
shall be deemed to be a payment by the Company pursuant to this Section 2.12 and
shall be applied by the Trustee to pay, when due, principal of, premium, if any,
and/or interest on the Related Notes and, to the extent so applied, shall
satisfy the Company's obligations on such Notes.
Section 2.13 Notes Issuable In The Form Of A Global Note.
(a) If the Company shall establish pursuant to Section 2.05 hereof that
the Notes of a particular series or tranche are to be issued in whole or in part
in the form of one or more Global Notes, then the Company shall execute and the
Trustee shall, in accordance with Section 2.05 hereof and the Company Order
delivered to the Trustee thereunder, authenticate and
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deliver such Global Note or Notes, which (i) shall represent, shall be
denominated in an amount equal to the aggregate principal amount of, and shall
have the same terms as, the Outstanding Notes of such series or tranche to be
represented by such Global Note or Notes, (ii) shall be registered in the name
of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "This Note is a Global Note
registered in the name of the Depositary (referred to herein) or a nominee
thereof and, unless and until it is exchanged in whole or in part for the
individual Notes represented hereby, this Global Note may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary. Unless this Global Note is presented by an
authorized representative of The Depository Trust Company (55 Water Street, New
York, New York), to the Trustee for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., any transfer, pledge or
other use hereof for value or otherwise by or to any Person is wrongful since
the registered owner hereof, Cede & Co., has an interest herein" or such other
legend as may be required by the rules and regulations of the Depositary.
(b) Notwithstanding any other provision of Section 2.06 hereof or of
this Section 2.13, unless the terms of a Global Note expressly permit such
Global Note to be exchanged in whole or in part for individual Notes, a Global
Note may be transferred, in whole but not in part, only as described in the
legend thereto.
(c) (i) If at any time the Depositary for a Global Note notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Note or if at any time the Depositary for the Global Note shall no longer be
eligible or in good standing under the Securities Exchange Act of 1934 or other
applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to such Global Note. If a successor Depositary for such
Global Note is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 2.05(c)(vi) hereof shall no longer
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be effective with respect to the series or tranche of Notes evidenced by such
Global Note and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Notes of such
series or tranche in exchange for such Global Note, shall authenticate and
deliver, individual Notes of such series or tranche of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Note in exchange for such Global Note. The Trustee shall not be
charged with knowledge or notice of the ineligibility of a Depositary unless a
Responsible Officer assigned to and working in its corporate trustee
administration department shall have actual knowledge thereof.
(ii) (A) The Company may at any time and in its sole
discretion determine that all Outstanding (but not less than all) Notes of a
series or tranche issued or issuable in the form of one or more Global Notes
shall no longer be represented by such Global Note or Notes. In such event the
Company shall execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Notes in exchange for such Global Note
or Notes, shall authenticate and deliver individual Notes of like tenor and
terms in definitive form in an aggregate principal amount equal to the principal
amount of such Global Note or Notes in exchange for such Global Note or Notes.
(B) Within seven days after the occurrence of an
Event of Default, the Company shall execute, and the Trustee shall authenticate
and deliver, Notes of such series or tranche in definitive registered form in
any authorized denominations and in aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(iii) In any exchange provided for in any of the preceding two
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Notes in definitive registered form in authorized
denominations. Upon the exchange of a Global Note for individual Notes, such
Global Note shall be canceled by the Trustee. Notes issued in exchange for a
Global Note pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such Global Note, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Notes to the Depositary for
delivery to the Persons in whose names such Notes are so registered, or if the
Depositary shall refuse or be unable to
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deliver such Notes, the Trustee shall deliver such Notes to the Persons in whose
names such Notes are registered, unless otherwise agreed upon between the
Trustee and the Company, in which event the Company shall cause the Notes to be
delivered to the Persons in whose names such Notes are registered.
(d) Neither the Company, the Trustee, any Authenticating Agent nor any
paying agent shall have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests of a Global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
(e) Pursuant to the provisions of this subsection, at the option of the
Trustee and upon 30 days' written notice to the Depositary but not prior to the
first Interest Payment Date of the respective Global Notes, the Depositary shall
be required to surrender any two or more Global Notes which have identical
terms, including, without limitation, identical Maturities, interest rates and
redemption provisions (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depositary a Global Note in principal
amount equal to the aggregate principal amount of, and with all terms identical
to, the Global Notes surrendered thereto and that shall indicate each applicable
Original Issue Date and the principal amount applicable to each such Original
Issue Date. The exchange contemplated in this subsection shall be consummated at
least 30 days prior to any Interest Payment Date applicable to any of the Global
Notes surrendered to the Trustee. Upon any exchange of any Global Note with two
or more Original Issue Dates, whether pursuant to this Section or pursuant to
Section 2.06 or Section 3.03 hereof, the aggregate principal amount of the Notes
with a particular Original Issue Date shall be the same before and after such
exchange, after giving effect to any retirement of Notes and the Original Issue
Dates applicable to such Notes occurring in connection with such exchange.
Section 2.14 CUSIP Numbers.
The Company in issuing Notes may use "CUSIP" numbers (if then generally
in use) and, if so used, the Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to holders of Notes; provided, that any such notice
may state no representation is made as to the correctness of such numbers either
as printed on the Notes or contained in any notice of
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redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company shall promptly notify the
Trustee of any changes in the "CUSIP" numbers.
ARTICLE III
REDEMPTION OF NOTES
Section 3.01 Applicability Of Article. Such of the Notes as are, by
their terms, redeemable prior to their Stated Maturity date at the option of the
Company, may be redeemed by the Company at such times, in such amounts and at
such prices as may be specified therein and in accordance with the provisions of
this Article III.
Section 3.02 Notice Of Redemption; Selection Of Notes.
(a) The election of the Company to redeem any Notes shall be evidenced
by an Officer's Certificate which shall be given with notice of redemption to
the Trustee at least 45 days (or such shorter period acceptable to the Trustee
in its sole discretion) prior to the redemption date specified in such notice.
(b) Notice of redemption to each Holder of Notes to be redeemed as a
whole or in part shall be given by the Trustee, in the manner provided in
Section 15.10 hereof, no less than 30 or more than 60 days prior to the date
fixed for redemption. Any notice which is given in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Noteholder receives such notice. In any case, failure duly to give such notice,
or any defect in such notice, to the Holder of any Note designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Note.
(c) Each such notice shall identify the Notes to be redeemed (including
CUSIP numbers) and shall specify the date fixed for redemption, the places of
redemption and the redemption price (or the method for calculation thereof) at
which such Notes are to be redeemed, and shall state that (subject to subsection
(e) of this Section) payment of the redemption price of such Notes or portion
thereof to be redeemed will be made upon surrender of such Notes at such places
of
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redemption, that interest accrued to the date fixed for redemption will be paid
as specified in such notice, and that from and after such date interest thereon
shall cease to accrue. If less than all of a series or tranche of Notes having
the same terms are to be redeemed, the notice shall specify the Notes or
portions thereof to be redeemed. If any Note is to be redeemed in part only, the
notice which relates to such Note shall state the portion of the principal
amount thereof to be redeemed, and shall state that, upon surrender of such
Note, a new Note or Notes having the same terms in aggregate principal amount
equal to the unredeemed portion thereof will be issued.
(d) Unless otherwise provided by a supplemental indenture or Company
Order under Section 2.05 hereof, if less than all of a series or tranche of
Notes is to be redeemed, the Trustee shall select in such manner as it shall
deem appropriate and fair in its discretion the particular Notes to be redeemed
in whole or in part and shall thereafter promptly notify the Company in writing
of the Notes so to be redeemed. If less than all of a series or tranche of Notes
represented by a Global Note is to be redeemed, the particular Notes or portions
thereof of such series or tranche to be redeemed shall be selected by the
Depositary for such series or tranche of Notes in such manner as the Depositary
shall determine. Notes shall be redeemed only in denominations of $1,000,
provided that any remaining principal amount of a Note redeemed in part shall be
a denomination authorized under this Indenture.
(e) If at the time of the mailing of any notice of redemption at the
option of the Company, the Company shall not have irrevocably directed the
Trustee to apply funds then on deposit with the Trustee or held by it and
available to be used for the redemption of Notes to redeem all the Notes called
for redemption, such notice shall state that it is conditional and subject to
the receipt of the redemption moneys by the Trustee on or before the date fixed
for redemption and that such notice shall be of no effect unless such moneys are
so received on or before such date.
Section 3.03 Payment Of Notes On Redemption; Deposit Of Redemption
Price.
(a) If notice of redemption for any Notes shall have been given as
provided in Section 3.02 hereof and such notice shall not contain the language
permitted at the Company's option under Section 3.02(e) hereof, such Notes or
portions of Notes called for redemption shall become due and payable on the date
and at
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the places stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption of such Notes. Interest
on the Notes or portions thereof so called for redemption shall cease to accrue
and such Notes or portions thereof shall be deemed not to be entitled to any
benefit under this Indenture except to receive payment of the redemption price
together with interest accrued thereon to the date fixed for redemption. Upon
presentation and surrender of such Notes at the place of payment specified in
such notice, such Notes or the specified portions thereof shall be paid and
redeemed at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption.
(b) If notice of redemption shall have been given as provided in
Section 3.02 hereof and such notice shall contain the language permitted at the
Company's option under Section 3.02(e) hereof, such Notes or portions of Notes
called for redemption shall become due and payable on the date and at the places
stated in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption of such Notes, and interest on the
Notes or portions thereof so called for redemption shall cease to accrue and
such Notes or portions thereof shall be deemed not to be entitled to any benefit
under this Indenture except to receive payment of the redemption price together
with interest accrued thereon to the date fixed for redemption; provided that,
in each case, the Company shall have deposited with the Trustee or a paying
agent on or prior to 11:00 a.m. New York City time on such redemption date an
amount sufficient to pay the redemption price together with interest accrued to
the date fixed for redemption. Upon the Company making such deposit and, upon
presentation and surrender of such Notes at such a place of payment in such
notice specified, such Notes or the specified portions thereof shall be paid and
redeemed at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption. If the Company shall not make such
deposit on or prior to the redemption date, the notice of redemption shall be of
no force and effect and the principal on such Notes or specified portions
thereof shall continue to bear interest as if the notice of redemption had not
been given.
(c) No notice of redemption of Notes shall be mailed during the
continuance of any Event of Default, except (1) that, when notice of redemption
of any Notes has been mailed, the Company shall redeem such Notes but only if
funds sufficient for that purpose have prior to the occurrence of such Event of
Default been deposited with the Trustee or a paying agent for
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such purpose, and (2) that notices of redemption of all Outstanding Notes may be
given during the continuance of an Event of Default.
(d) Upon surrender of any Note redeemed in part only, the Company shall
execute, and the Trustee shall authenticate, deliver and register, a new Note or
Notes of authorized denominations in aggregate principal amount equal to, and
having the same terms, Original Issue Date or Dates and series or tranche as,
the unredeemed portion of the Note so surrendered.
ARTICLE IV
SENIOR NOTE FIRST MORTGAGE BONDS
Section 4.01 Senior Note First Mortgage Bonds Held By The Trustee. The
Trustee shall, as the holder of Senior Note First Mortgage Bonds, attend such
meeting or meetings of bondholders under the First Mortgage or, at its option,
deliver its proxy in connection therewith, as relate to matters with respect to
which it is entitled to vote or consent. The Trustee shall vote all Senior Note
First Mortgage Bonds then held by it, or consent with respect thereto,
proportionally with the vote or consent of the holders of all other First
Mortgage Bonds which are outstanding under the First Mortgage, the holders of
which are eligible to vote or consent; provided, however, that the Trustee shall
not so vote in favor of, or so consent to, any amendment or modification of the
First Mortgage which, if it were an amendment or modification of this Indenture,
would require the consent of the Holders, without the prior consent, obtained in
the manner prescribed in Section 13.02 hereof, of the Holders of Outstanding
Notes which would be required under said Section 13.02 for such an amendment or
modification of this Indenture.
Section 4.02 No Transfer Of Senior Note First Mortgage Bonds;
Exceptions. Except (i) as required to effect an assignment to a successor
trustee under this Indenture, (ii) pursuant to Section 4.03 or Section 4.06
hereof, or (iii) in compliance with a final order of a court of competent
jurisdiction in connection with any bankruptcy or reorganization proceeding of
the Company, the Trustee shall not sell, assign or transfer the Senior Note
First Mortgage Bonds and the Company shall issue stop transfer instructions to
the Mortgage Trustee and any transfer agent under the First Mortgage to effect
compliance with this Section 4.02.
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Section 4.03 Delivery To The Company Of All Senior Note First Mortgage
Bonds. When the obligation of the Company to make payment with respect to the
principal of and premium, if any, and interest on all Senior Note First Mortgage
Bonds shall be satisfied or deemed satisfied pursuant to Section 4.09 or Section
5.01(b) hereof, the Trustee shall, upon written request of the Company and
receipt of the certificate of the Expert described in Section 4.04(b) hereof (if
such certificate is then required by Section 4.04(b) hereof), deliver to the
Company without charge therefor all of the Senior Note First Mortgage Bonds,
together with such appropriate instruments of transfer or release as may be
reasonably requested by the Company. All Senior Note First Mortgage Bonds
delivered to the Company in accordance with this Section 4.03 shall be delivered
by the Company to the Mortgage Trustee for cancellation.
Section 4.04 Fair Value Certificate. (a) If required by applicable law,
upon the delivery by the Company to the Trustee of the Senior Note First
Mortgage Bonds pursuant to Section 4.07 hereof, the Company shall simultaneously
therewith deliver to the Trustee a certificate of an Expert (1) stating that he,
she or it is familiar with the provisions of such Senior Note First Mortgage
Bonds and of this Indenture; (2) stating the principal amount of such Senior
Note First Mortgage Bonds so delivered, the stated interest rate (or method of
calculation of interest) of such Senior Note First Mortgage Bonds (if any) and
the Stated Maturity date of such Senior Note First Mortgage Bonds; (3)
identifying the Notes being issued contemporaneously therewith, and (4) stating
the fair value to the Company of such Senior Note First Mortgage Bonds. If the
fair value to the Company of the Senior Note First Mortgage Bonds so delivered,
as described in the certificate to be delivered pursuant to this Section
4.04(a), both (l) is equal to or exceeds (A) $25,000 and (B) 1% of the principal
amount of the Notes Outstanding at the date of delivery of such Senior Note
First Mortgage Bonds and (2) together with the fair value to the Company, as
described in the certificates to be delivered pursuant to this Section 4.04(a),
of all other Senior Note First Mortgage Bonds delivered to the Trustee since the
commencement of the then current calendar year, is equal to or exceeds 10% of
the principal amount of the Notes Outstanding at the date of delivery of such
Senior Note First Mortgage Bonds, then the certificate required by this Section
4.04(a) shall (1) be delivered by an Expert who shall be independent of the
Company and (2) in addition to the certifications described above, state the
fair value to the Company of all Senior Note First Mortgage Bonds delivered to
the Trustee pursuant to Section 4.07 hereof since the commencement
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of the then current year as to which a certificate was not delivered by an
Expert independent of the Company.
(b) If Senior Note First Mortgage Bonds are delivered or
surrendered to the Company pursuant to Section 4.03 or 4.06 hereof, the Company
shall simultaneously therewith deliver to the Trustee a certificate of an Expert
(1) stating that it is familiar with the provisions of such Senior Note First
Mortgage Bonds and of this Indenture, (2) stating the principal amount of such
Senior Note First Mortgage Bonds so delivered, the stated interest rate (or
method of calculation of interest) of such Senior Note First Mortgage Bonds (if
any) and the Stated Maturity date of such Senior Note First Mortgage Bonds, (3)
if applicable, identifying the Notes, the payment of the interest on and
principal of which has been discharged hereunder, and (4) stating that such
delivery and release will not impair the lien of this Indenture in contravention
of the provisions of this Indenture. If, prior to the Release Date, the fair
value of the Senior Note First Mortgage Bonds so delivered and released, as
described in the certificate to be delivered pursuant to this Section 4.04(b),
both (l) is equal to or exceeds (A) $25,000 and (B) 1% of the principal amount
of the Outstanding Notes at the date of release of such Senior Note First
Mortgage Bonds and (2) together with the fair value, as described in the
certificates to be delivered pursuant to this Section 4.04(b), of all other
Senior Note First Mortgage Bonds released from the lien of this Indenture since
the commencement of the then current calendar year, is equal to or exceeds 10%
of the principal amount of the Notes Outstanding at the date of release of such
Senior Note First Mortgage Bonds, then the certificate required by this Section
4.04(b) shall be delivered by an Expert who shall be independent of the Company.
If, in connection with a delivery or release of outstanding Senior Note
First Mortgage Bonds, the Company provides to the Trustee an Opinion of Counsel
stating that the certificate described by this Section 4.04 is not required by
law, such certificate shall not be required to be delivered thereunder in
connection with such delivery or release.
Section 4.05 Further Assurances. The Company, at its own expense, shall
do such further lawful acts and things, and execute and deliver such additional
conveyances, assignments, assurances, agreements, financing statements and
instruments, as may be necessary in order to better assign, assure and confirm
to the Trustee its interest in the Senior Note First Mortgage
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Bonds and for maintaining, protecting and preserving such interest.
Section 4.06 Exchange And Surrender Of Senior Note First Mortgage
Bonds. At any time a Note shall cease to be entitled to any lien, benefit or
security under this Indenture pursuant to Section 5.01(b) hereof and the Company
shall have provided the Trustee with notice thereof, the Trustee shall surrender
an equal principal amount of the Related Senior Note First Mortgage Bonds,
subject to the limitations of this Section 4.06, to the Company for
cancellation. The Trustee shall, together with such Senior Note First Mortgage
Bonds, deliver to the Company such appropriate instruments of transfer or
release as the Company may reasonably request. Prior to the surrender required
by this paragraph, the Trustee shall receive from the Company the following, and
(subject to Section 9.01 hereof) shall be fully protected in relying upon, (1)
an Officers' Certificate stating (i) the aggregate outstanding principal amount
of the Senior Note First Mortgage Bonds of the series or tranche surrendered by
the Trustee, after giving effect to such surrender, (ii) the aggregate
Outstanding principal amount of the Related Notes and (iii) that the surrender
of the Senior Note First Mortgage Bonds will not result in any default under
this Indenture; and (2) the Officers' Certificate and Opinion of Counsel
required pursuant to Section 15.05 hereof.
The Company shall not be permitted to cause the surrender or exchange
of all or any part of a series or tranche of Senior Note First Mortgage Bonds
contemplated in this Section, if, after such surrender or exchange, the
aggregate Outstanding principal amount of the Related Notes would exceed the
aggregate Outstanding principal amount of such series or tranche of Senior Note
First Mortgage Bonds held by the Trustee. Any Senior Note First Mortgage Bonds
received by the Company pursuant to this Section 4.06 shall be delivered to the
Mortgage Trustee for cancellation. Notwithstanding anything herein to the
contrary, until the Release Date, the Company shall preserve and maintain the
Lien of this Indenture, and shall not permit, at any time prior to the Release
Date, the aggregate principal amount of Senior Note First Mortgage Bonds held by
the Trustee to be less than the aggregate amount of Notes Outstanding.
Section 4.07 Acceptance Of Senior Note First Mortgage Bonds. Upon the
issuance of Notes hereunder at any time prior to the Release Date, the Company
shall deliver to the Trustee in trust for the benefit of the Holders of the
Notes as described in Section 4.09 hereof, and the Trustee shall accept
therefor,
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and acknowledge receipt of, Related Senior Note First Mortgage Bonds registered
in the name of the Trustee conforming to the requirements of Section 4.08
hereof.
Section 4.08 Terms Of Senior Note First Mortgage Bonds. Senior Note
First Mortgage Bonds delivered to the Trustee pursuant to Section 4.07 hereof
shall have the same Stated Maturity and shall be in the same aggregate principal
amount as the Related Notes being issued, and shall not be redeemable at the
option of the Company; it being expressly understood that such Senior Note First
Mortgage Bonds may, but need not, bear interest, any such interest to be payable
on the same Interest Payment Dates as the Related Notes being issued.
Section 4.09 Senior Note First Mortgage Bonds As Security For Notes.
Until the Release Date and subject to Article V hereof, Senior Note First
Mortgage Bonds delivered to the Trustee, for the benefit of the Holders of the
Notes, shall constitute part of the trust estate and security for any and all
obligations of the Company under the Notes, including, but not limited to (1)
the full and prompt payment of the principal of and premium, if any, on such
Notes when and as the same shall become due and payable in accordance with the
terms and provisions of this Indenture or the Notes, either at the Stated
Maturity thereof, upon acceleration of the Maturity thereof or upon redemption,
and (2) the full and prompt payment of any interest on such Notes when and as
the same shall become due and payable in accordance with the terms and
provisions of this Indenture or the Notes.
Notwithstanding anything in this Indenture to the contrary,
from and after the Release Date, the obligation of the Company to make payment
with respect to the principal of and premium, if any, and interest on the Senior
Note First Mortgage Bonds shall be deemed satisfied and discharged as provided
in the supplemental trust indenture or indentures to the First Mortgage creating
such Senior Note First Mortgage Bonds and the Senior Note First Mortgage Bonds
shall cease to secure in any manner Notes theretofore or subsequently issued.
From and after the Release Date, any conditions to the issuance of Notes that
refer or relate to Senior Note First Mortgage Bonds or the First Mortgage shall
be inapplicable.
After the issuance of the first series or tranche of Notes
hereunder, the Company shall not issue any additional First Mortgage Bonds under
the First Mortgage other than Senior Note First Mortgage Bonds. The Company
shall notify the Trustee
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promptly of the occurrence of the Release Date. Notice of the occurrence of the
Release Date shall be given by the Trustee to the Holders of the Notes in the
manner provided in Section 15.10 hereof not later than 30 days after the Release
Date.
ARTICLE V
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
Section 5.01 Satisfaction And Discharge.
(a) If at any time:
(1) the Company shall have paid or caused to be paid the
principal of and premium, if any, and interest on all the Outstanding
Notes, as and when the same shall have become due and payable,
(2) the Company shall have delivered to the Trustee for
cancellation all Outstanding Notes, or
(3) the Company shall have irrevocably deposited or caused to
be irrevocably deposited with the Trustee as trust funds the entire
amount in (A) cash, (B) U.S. Government Obligations maturing as to
principal and interest in such amounts and at such times as will insure
the availability of cash, or (C) a combination of cash and U.S.
Government Obligations, in any case sufficient, without reinvestment,
as certified by an independent public accounting firm of national
reputation in a written certification delivered to the Trustee, to pay
at Maturity or the applicable redemption date (provided that notice of
redemption shall have been duly given or irrevocable provision
satisfactory to the Trustee shall have been duly made for the giving of
any notice of redemption) all Outstanding Notes, including principal
and any premium on, and interest due or to become due to such date of
Maturity, as the case may be, and, unless all Outstanding Notes are to
be due within 90 days of such deposit by redemption or otherwise, shall
also deliver to the Trustee an Opinion of Counsel expert in federal
income tax matters to the effect that the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or
similar pronouncement by the Internal Revenue Service or that there has
been a change of law (collectively, an "External Tax Pronouncement"),
in either case to the effect
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that the Holders of the Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such defeasance or
discharge of this Indenture, and if, in any such case, (x) the Company
shall also pay or cause to be paid all other sums payable hereunder by
the Company and (y) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with, then this
Indenture shall cease to be of further effect (except as to (i) rights
of registration of transfer and exchange of Notes, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Notes, (iii) rights of
Noteholders to receive payments of principal thereof, and premium, if
any, and interest thereon, upon the original stated due dates therefor
or upon the applicable redemption date (but not upon acceleration of
Maturity) from the moneys and U.S. Government Obligations held by the
Trustee pursuant to Section 5.02 hereof, (iv) the rights and immunities
of the Trustee hereunder, (v) the rights of the Holders of the Notes as
beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them, (vi) the obligations of the
Company under Sections 6.02 and 6.03 hereof, (vii) the obligations and
rights of the Trustee and the Company under Section 5.04 hereof, and
(viii) the duties of the Trustee with respect to any of the foregoing),
and the Company shall be deemed to have paid and discharged the entire
indebtedness represented by, and its obligations under, the Notes, and
the Trustee, on demand of the Company and at the cost and expense of
the Company, shall execute proper instruments acknowledging such
satisfaction and discharge of this Indenture and the Trustee shall at
the request of the Company release the lien of this Indenture and
return to the Company all Senior Note First Mortgage Bonds and all
other property and money held by it under this Indenture and determined
by it from time to time in accordance with the certification pursuant
to this Section 5.01(a)(3) to be in excess of the amount required to be
held under this Section.
If the Notes are deemed to be paid and discharged pursuant to
Section 5.01(a)(3) hereof, within 60 days after those Notes are so deemed to be
paid and discharged, the Trustee shall cause a written notice to be given to
each Holder in the manner provided by Section 15.10 hereof. The notice shall:
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(i) state that the Notes are deemed to be paid and
discharged;
(ii) set forth a description of any U.S. Government
Obligations and cash held by the Trustee as described above; and
(iii) if any Notes will be called for redemption, specify the
date or dates on which those Notes are to be called for redemption.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 9.06
hereof shall survive.
If the Notes are deemed paid and discharged pursuant to this
Section 5.01(a), the obligation of the Company to make payment with respect to
the principal of, premium, if any, and interest on the Senior Note First
Mortgage Bonds shall be satisfied and discharged and the Senior Note First
Mortgage Bonds shall cease to secure the Notes in any manner.
(b) If the Company shall have paid or caused to be paid the principal
of and premium, if any, and interest on any Note, as and when the same shall
have become due and payable or the Company shall have delivered to the Trustee
for cancellation any Outstanding Note, such Note shall cease to be entitled to
any lien, benefit or security under this Indenture. Upon any Note ceasing to be
entitled to any lien, benefit or security under this Indenture, the obligation
of the Company to make payment with respect to principal of and premium, if any,
and interest on a principal amount of the Related Senior Note First Mortgage
Bonds equal to the principal amount of such Note shall be satisfied and
discharged and such portion of the principal amount of such Senior Note First
Mortgage Bonds shall cease to secure the Notes in any manner.
(c) If the Company makes the deposit of cash and/or U.S. Government
Obligations with respect to one or more series or tranche of Notes described in
Section 5.01(a) hereof and otherwise complies with the requirements of such
Section for the satisfaction and discharge of this Indenture (except that the
opinion of counsel referred to in Section 5.01(a)(3) need not be based on an
External Tax Pronouncement, and shall be to the effect that the Holders of the
Notes will not recognize income, gain or loss for federal income tax purposes as
a result of such deposit and the release of the Company from its obligations
referred to in this Section 5.01(c) under this Indenture), then
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the provisions of this Indenture shall remain in full force and effect and the
indebtedness represented by, and the Company's obligations under, such Notes
shall be deemed satisfied, and the Company shall be released with respect to
such series or tranche of Notes from its obligations under Sections 4.09 6.07,
6.08, 6.09 and Article XII hereof.
Section 5.02 Deposited Moneys To Be Held In Trust By Trustee. Subject
to Section 5.04, all moneys and U.S. Government Obligations deposited with the
Trustee pursuant to Section 5.01 hereof, shall be held in trust and applied by
it to the payment, either directly or through any paying agent (including the
Company if acting as its own paying agent), to the Holders of the particular
Notes for the payment or redemption of which such moneys and U.S. Government
Obligations have been deposited with the Trustee of all sums due and to become
due thereon for principal and premium, if any, and interest.
Section 5.03 Paying Agent To Repay Moneys Held. Upon the satisfaction
and discharge of this Indenture all moneys then held by any paying agent for the
Notes (other than the Trustee) shall, upon written demand by the Company, be
repaid to the Company or paid to the Trustee, and thereupon such paying agent
shall be released from all further obligations with respect to such moneys.
Section 5.04 Return Of Unclaimed Moneys. Any moneys deposited with or
paid to the Trustee for payment of the principal of or any premium, if any, or
interest on any Notes and not applied but remaining unclaimed by the Holders of
such Notes for two years after the date upon which the principal of or any
premium, if any, or interest on such Notes, as the case may be, shall have
become due and payable, shall be repaid to the Company, subject to applicable
abandoned property laws, by the Trustee on written demand by the Company; and
any Holder of any of such Notes shall thereafter look only to the Company for
any payment which such Holder may be entitled to collect.
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ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01 Payment Of Principal And Interest. The Company covenants
and agrees for the benefit of the Holders of the Notes that it will duly and
punctually pay or cause to be paid the principal of and premium, if any, and
interest, if any, on, each of the Notes at the places, at the respective times
and in the manner provided in such Notes or in this Indenture.
Section 6.02 Offices For Payments, Etc. So long as any Notes are
Outstanding hereunder, the Company will maintain in the Borough of Manhattan,
The City of New York, State of New York an office or agency where the Notes may
be presented for payment, for exchange as in this Indenture provided and for
registration of transfer as in this Indenture provided. The Corporate Trust
Office of the Trustee shall serve as the initial location of such office.
The Company will maintain in the Borough of Manhattan, The City of New
York, State of New York an office or agency where notices and demands to or upon
the Company in respect of the Notes or this Indenture may be served. The
Corporate Trust Office of the Trustee shall serve as the initial location of
such office.
In case the Company shall fail to maintain any office or agency
required by this Section to be located in the Borough of Manhattan, The City of
New York, State of New York or shall fail to give such notice of the location or
of any change in the location of any of the above offices or agencies,
presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Trustee, and, in such event, the Trustee shall act as the
Company's agent to receive all such presentations, surrenders, notices and
demands.
The Company may from time to time designate one or more additional
offices or agencies where the Notes may be presented for payment, for exchange
as in this Indenture provided and for registration of transfer as in this
Indenture provided, and the Company may from time to time rescind any such
designation; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain any office or
agency provided for in this Section. The Company will give to the Trustee prompt
written notice of any such
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designation or rescission thereof and of any change in the location of any such
other office or agency.
Section 6.03 Appointment To Fill A Vacancy In Office Of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 9.11, a Trustee, so that there
shall at all times be a Trustee hereunder.
Section 6.04 Provision As To Paying Agent. The Trustee shall be the
paying agent for the Notes and, at the option of the Company, the Company may
appoint additional paying agents (including without limitation itself). Whenever
the Company shall appoint a paying agent other than the Trustee with respect to
the Notes, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that such paying agent will hold all sums received by it
as such agent for the payment of the principal of, premium, if any, or
interest, on the Notes (whether such sums have been paid to it by the
Company or by any other obligor on the Notes) in trust for the benefit
of the Holders of the Notes, or of the Trustee until such sums shall be
paid to such Holders or otherwise disposed of as herein provided;
(2) that such paying agent will give the Trustee notice of any
failure by the Company (or by any other obligor on Notes) to make any
payment of the principal of, premium, if any, or interest on the Notes
when the same shall be due and payable; and
(3) that such paying agent will at any time during the
continuance of any such failure, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by such
paying agent.
The Company will, on or prior to each due date of the
principal of and any premium, if any, or interest on the Notes, deposit with the
paying agent a sum sufficient to pay such principal and premium, if any, or
interest so becoming due, such sum to be held in trust for the benefit of the
Holders of the Notes entitled to such principal of and any premium, if any, or
interest, and (unless such paying agent is the Trustee) the
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Company will promptly notify the Trustee of any failure to take such action.
If the Company shall act as its own paying agent with respect
to the Notes, it will, on or before each due date of the principal of (and
premium, if any,) or interest, if any, on the Notes, set aside, segregate and
hold in trust for the benefit of the Holders of the Notes, a sum sufficient to
pay such principal (and premium, if any,) or interest, if any, so becoming due
until such sums shall be paid to such Holders or otherwise disposed of as herein
provided. The Company will promptly notify the Trustee of any failure to take
such action.
The Company may at any time pay or cause to be paid to the
Trustee all sums held in trust by it or any paying agent hereunder, as required
by this Section, such sums to be held by the Trustee upon the trusts herein
contained, and, upon such payment by any paying agent to the Trustee, such
paying agent shall be released from all further liability with respect to such
money.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 5.03 and 5.04.
Section 6.05 Opinions Of Counsel. The Company will cause this
Indenture, any indentures supplemental to this Indenture, and any financing or
continuation statements to be promptly recorded and filed and rerecorded and
refiled in such a manner and in such places, as may be required by law in order
fully to preserve, protect and perfect the security interest of the Noteholders
and all rights of the Trustee, and shall deliver to the Trustee:
(a) promptly after the execution and delivery of this
Indenture and of any indentures supplemental to this Indenture but prior to the
Release Date, an Opinion of Counsel either stating that, in the opinion of such
counsel, this Indenture or such supplemental indentures and any financing or
continuation statements have been properly recorded and filed so as to make
effective and to perfect the security interest of the Trustee intended to be
created by this Indenture for the benefit of the Holders from time to time of
the Notes in the Senior Note First Mortgage Bonds, and reciting the details of
such action, or stating that, in the opinion of such counsel, no such action is
necessary to perfect or make such security interest effective
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and stating what, if any, action of the foregoing character may reasonably be
expected to become necessary prior to the next succeeding April 30 to perfect,
maintain and make such security interest effective; and
(b) on or before April 30 of each year, commencing April 30,
2000, and prior to the Release Date, an Opinion of Counsel either stating that
in the opinion of such counsel such action has been taken, since the date of the
most recent Opinion of Counsel furnished pursuant to this Section 6.05(b) or the
first Opinion of Counsel furnished pursuant to Section 6.05(a) hereof, with
respect to the recording, filing, rerecording, or refiling of this Indenture,
each supplemental indenture and any financing or continuation statements, as is
necessary to maintain and perfect the security interest of the Trustee intended
to be created by this Indenture for the benefit of the Holders from time to time
of the Notes in the Senior Note First Mortgage Bonds, and reciting the details
of such action, or stating that in the opinion of such counsel no such action is
necessary to maintain and perfect such security interest and stating what, if
any, action of the foregoing character may reasonably be expected to become
necessary prior to the next succeeding April 30 to maintain, perfect and make
such security interest effective.
Section 6.06 Certificates And Notice To Trustee. The Company shall, on
or before April 30 of each year, commencing April 30, 2000, deliver to the
Trustee a certificate from its principal executive officer, principal financial
officer or principal accounting officer covering the preceding calendar year and
stating whether or not, to the knowledge of such Person, the Company has
complied with all conditions and covenants under this Indenture, and, if not,
describing in reasonable detail any failure by the Company to comply with any
such conditions or covenants. For purposes of this Section, compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture. Upon the occurrence of a completed default (as
defined in the First Mortgage) prior to the Release Date, the Company shall
promptly notify the Trustee of such event.
Section 6.07 Restrictions On Liens (a) So long as any Notes are
Outstanding, the Company will not issue, assume, guarantee or permit to exist
after the Release Date any Debt secured by any Lien on any Operating Property of
the Company, whether owned at the date of this Indenture or thereafter acquired,
without in any such case effectively securing the
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Outstanding Notes (together with, if the Company shall so determine, any other
Debt of or guaranteed by the Company ranking equally with, the Notes) equally
and ratably with such Debt (but only so long as such Debt is so secured);
provided, however, that the foregoing restriction shall not apply to Debt
secured by any of the following:
(i Liens on any Operating Property existing at the time
of acquisition thereof (which Liens may also extend to subsequent repairs,
alterations and improvements to such Operating Property);
(ii) Liens on operating property of a corporation existing
at the time such corporation is merged into or consolidated with the Company, or
at the time of a sale, lease, or other disposition of the properties of such
corporation or a division thereof as an entirety or substantially as an entirety
to the Company;
(iii) Liens on Operating Property to secure all or part of
the cost of acquiring, constructing, developing, or substantially repairing,
altering, or improving such property, or to secure any Debt incurred to provide
funds for any such purpose or for reimbursement of funds previously expended for
any such purpose, provided such Liens are created or assumed contemporaneously
with, or within eighteen (18) months after, such acquisition or the completion
of construction, development, or substantial repair, alteration or improvement;
(iv) Liens in favor of any State, or any department,
agency, or instrumentality or political subdivision of any State, or for the
benefit of holders of securities issued by any such entity (or providers of
credit enhancement with respect to such securities), to secure any Debt
(including, without limitation, obligations of the Company with respect to
industrial development, pollution control or similar revenue bonds) incurred for
the purpose of financing all or any part of the purchase price or the cost of
constructing, developing, or substantially repairing, altering, or improving
Operating Property of the Company;
(v) Liens under the First Mortgage subject to Section
4.09 hereof;
(vi) Liens under Section 9.06 hereof; or
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(vii) Any extension, renewal or replacement (or successive
extensions, renewals, or replacements), in whole or in part, of any Lien
referred to in the foregoing clauses (i) to (vi), inclusive; provided, however,
that the principal amount of Debt secured thereby and not otherwise authorized
by said clauses (i) to (vi), inclusive, shall not exceed the principal amount of
Debt, plus any premium or fee payable in connection with any such extension,
renewal, or replacement, so secured at the time of such extension, renewal, or
replacement.
(b) Notwithstanding the provisions of Section 6.07(a), the Company may
issue, assume, or guarantee Debt, or permit to exist after the Release Date any
Debt, in each case, secured by Liens which would otherwise be subject to the
restrictions of Section 6.07(a) up to an aggregate principal amount that,
together with the principal amount of all other Debt of the Company secured by
Liens (other than Liens permitted by Section 6.07(a) that would otherwise be
subject to any of the foregoing restrictions) and the Value of all Sale and
Lease-Back Transactions in existence at such time (other than any Sale and
Lease-Back Transaction that, if such Sale and Lease-Back Transaction had been a
Lien, would have been permitted by Section 6.07(a), other than Sale and
Lease-Back Transactions permitted by Section 6.08 because the commitment by or
on behalf of the purchaser was obtained no later than eighteen (18) months after
the later of events described in (i) or (ii) of Section 6.08, and other than
Sale and Lease-Back Transactions as to which application of amounts have been
made in accordance with clause (z) of Section 6.08), does not at the time exceed
the greater of fifteen percent (15%) of Tangible Assets and fifteen percent
(15%) of Capitalization.
(c) If the Company shall issue, assume, or guarantee any Debt secured
by any Lien and if Section 6.07(a) requires that the Outstanding Notes be
secured equally and ratably with such Debt, the Company will promptly execute,
at its expense, any instruments necessary to so equally and ratably secure the
Outstanding Notes and deliver the same to the Trustee along with:
(i) An Officers' Certificate stating that the covenant of the
Company contained in Section 6.07(a) has been complied with; and
(ii) An Opinion of Counsel to the effect that the Company has
complied with the covenant contained in Section 6.07(a), and that any
instruments executed by the Company in the
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performance of such covenant comply with the requirements of such covenant.
In the event that the Company shall hereafter secure
Outstanding Notes equally and ratably with any other obligation or indebtedness
pursuant to the provisions of this Section 6.07, the Company will, upon the
request of the Trustee, enter into an indenture or agreement supplemental hereto
and take such other action, if any, as the Trustee may reasonably request to
enable it to enforce effectively the rights of the Holders of Outstanding Notes
so secured, equally and ratably with such other obligation or indebtedness.
Section 6.08 Restrictions On Sale And Lease-Back Transactions. So long
as any Notes are Outstanding, the Company will not enter into or permit to exist
after the Release Date any Sale and Lease-Back Transaction with respect to any
Operating Property if, in any case, the commitment by or on behalf of the
purchaser is obtained more than eighteen (18) months after the later of (i) the
completion of the acquisition, construction, or development of such Operating
Property or (ii) the placing in operation of such Operating Property or of such
Operating Property as constructed, developed, or substantially repaired,
altered, or improved, unless (x) the Company would be entitled pursuant to
Section 6.07(a) to issue, assume, guarantee or permit to exist Debt secured by a
Lien on such Operating Property without equally and ratably securing the Notes
or (y) the Company would be entitled pursuant to Section 6.07(b), after giving
effect to such Sale and Lease-Back Transaction, to incur $1.00 of additional
Debt secured by Liens (other than Liens permitted by Section 6.07(a)) or (z) the
Company shall apply or cause to be applied, in the case of a sale or transfer
for cash, an amount equal to the net proceeds thereof (but not in excess of the
net book value of such Operating Property at the date of such sale or transfer)
and, in the case of a sale or transfer otherwise than for cash, an amount equal
to the fair value (as determined by the Board of Directors) of the Operating
Property so leased, to the retirement, within one hundred eighty (180) days
after the effective date of such Sale and Lease-Back Transaction, of Notes (in
accordance with their terms) or other Debt of the Company ranking senior to, or
equally with, the Notes; provided, however, that the amount to be applied to
such retirement of Debt shall be reduced by an amount equal to the principal
amount, plus any premium or fee paid in connection with any redemption in
accordance with the terms of Debt voluntarily retired by the Company within such
one hundred eighty (180) day period, excluding retirement pursuant to
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mandatory sinking fund or prepayment provisions and payments at Maturity.
Section 6.09 Corporate Existence. Subject to the rights of the Company
under Article XII, the Company shall do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence; provided,
however, that the Company shall not be required to preserve any such right or
franchise if, in the judgment of the Company, the preservation thereof is no
longer desirable in the conduct of the business of the Company.
ARTICLE VII
NOTEHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 7.01 Company To Furnish Noteholder Lists. The Company and any
other obligor on the Notes shall furnish or cause to be furnished to the Trustee
a list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Notes:
(a) semi-annually and not more than 15 days after each Regular Record
Date for each Interest Payment Date that is not a Maturity Date, as of such
Regular Record Date, and such list need not include information received after
such date; and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Company of any such request, as of a date not more
than 15 days prior to the time such information is furnished, and such list need
not include information received after such date;
provided that if and so long as the Trustee shall be the registrar for the
Notes, such list shall not be required to be furnished.
Section 7.02 Preservation And Disclosure Of Noteholder Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of the
Notes (i) contained in the most recent lists furnished to it as provided in
Section 7.01, (ii) received by it in the capacity of registrar for the Notes, if
so
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acting, and (iii) filed with it within the two preceding years pursuant to
Section 7.04(d)(2). The Trustee may destroy any list furnished to it as provided
in Section 7.01 upon receipt of a new list so furnished.
(b) In case three or more Holders of Notes (hereinafter referred to as
"applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Note for a period of at
least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of Notes
with respect to their rights under this Indenture or under the Notes and such
application is accompanied by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section; or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved at the
time by the Trustee. in accordance with the provisions of such subsection (a)
and as to the approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Notes, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of such subsection (a) a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to
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sustain any of such objections or if, after the entry of an order sustaining one
or more of such objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met, and
shall enter an order so declaring, the Trustee shall mail copies of such
material to all such Holders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee shall be relieved of
any obligation or duty to such applicants respecting their application.
(c) Each and every Holder of a Note, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of the Company or the Trustee shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders of Notes in accordance with the provisions of subsection (b) of this
Section, regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under such subsection (b).
Section 7.03 Reports By The Company. The Company shall:
(a) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such
rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
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(c) transmit by mail to all Holders of Notes, within 30 days after the
filing thereof with the Trustee in the manner and to the extent provided in
Section 7.04(d), such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (a) and (b) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
Section 7.04 Reports By The Trustee.
(a) Annually, not later than August 15 of each year, the Trustee shall
transmit by mail a brief report dated as of such date that complies with Section
313(a) of the TIA (to the extent required by such Section).
(b) The Trustee shall from time to time transmit by mail brief reports
that comply, both in content and date of delivery, with Section 313(b) of the
TIA (to the extent required by such Section).
(c) A copy of each such report filed pursuant to this section shall, at
the time of such transmission to such Holders, be filed by the Trustee with each
stock exchange upon which any Notes are listed and also with the Commission. The
Company will notify the Trustee promptly in writing upon the listing of such
Notes on any stock exchange.
(d) Reports pursuant to this Section shall be transmitted
(1) by mail to all Holders of Notes, as their names and
addresses appear in the register for the Notes;
(2) by mail to such Holders of Notes as have, within the two
years preceding such transmission, filed their names and addresses with
the Trustee for such purpose;
(3) by mail, except in the case of reports pursuant to Section
7.04(b) and (c) hereof, to all Holders of Notes whose names and
addresses have been furnished to or received by the Trustee pursuant to
Section 7.01 and 7.02(a)(ii) hereof; and
(4) at the time such report is transmitted to the Holders of
the Notes, to each exchange on which Notes are listed and also with the
Commission.
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ARTICLE VIII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENTS OF DEFAULT
Section 8.01 Events Of Default.
(a) If one or more of the following Events of Default shall have
occurred and be continuing:
(1) default in the payment of any installment of interest upon
any of the Notes as and when the same shall become due and payable, and
continuance of such default for a period of sixty (60) days;
(2) default in the payment of the principal of or any premium
on any of the Notes as and when the same shall become due and payable;
(3) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company contained in the Notes or in this Indenture for a period of
ninety (90) days after the date on which written notice specifying such
failure, stating that such notice is a "Notice of Default" hereunder
and demanding that the Company remedy the same, shall have been given
to the Company by the Trustee by registered mail, or to the Company and
the Trustee by the Holders of not less than 33% in aggregate principal
amount of the Notes at the time Outstanding;
(4) prior to the Release Date, a completed default (as defined in
the First Mortgage) has occurred and is continuing; provided, however,
that anything in this Indenture to the contrary notwithstanding, the
waiver or cure of such default under the First Mortgage and the
rescission and annulment of the consequences thereof under the First
Mortgage shall constitute a waiver of the corresponding Event of
Default hereunder and a rescission and annulment of the consequences
thereof hereunder;
(5) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition
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seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable law, or appointing a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Company or for any substantial part of the
property of the Company, or ordering the winding up or liquidation of
the affairs of the Company, and such decree or order shall remain
unstayed and in effect for a period of 90 consecutive days; or
(6) the Company shall commence a voluntary case or proceeding
under any applicable bankruptcy, insolvency, reorganization or other
similar law now or hereafter in effect or any other case or proceeding
to be adjudicated a bankrupt or insolvent, or consent to the entry of a
decree or order for relief in an involuntary case under any such law,
or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable law, or
consent to the filing of such petition or to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or for any
substantial part of the property of the Company, or make any general
assignment for the benefit of creditors, or the notice by it in writing
of its inability to pay its debts generally as they become due, or the
taking of any corporate action by the Company in furtherance of any
such action;
then, unless the principal of all of the Notes shall have already become due and
payable, either the Trustee or the Holders of a majority in aggregate principal
amount of the Notes then Outstanding, by notice in writing to the Company (and
to the Trustee if given by such Holders), may declare the principal of and
interest on all the Notes to be due and payable immediately and upon any such
declaration the same shall become immediately due and payable, anything in this
Indenture or in the Notes contained to the contrary notwithstanding and, upon
the Notes being declared to be due and payable, the Trustee shall immediately
file with the Mortgage Trustee a written demand for redemption of all Senior
Note First Mortgage Bonds to the extent provided in the applicable provisions of
the supplemental indentures to the First Mortgage.
The foregoing paragraph, however, is subject to the condition
that if, at any time after the principal of the Notes
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shall have been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, and prior to the acceleration of all of the first mortgage
bonds issued and outstanding under the First Mortgage the Company shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured installments
of interest upon all of the Notes and the principal of and any premium on any
and all Notes which shall have become due otherwise than by acceleration (with
interest on overdue installments of interest, to the extent that payment of such
interest is enforceable under applicable law, and on such principal and any
applicable premium at the rate borne by the Notes to the date of such payment or
deposit) and all sums paid or advanced by the Trustee hereunder, the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 9.06 hereof,
and any and all defaults under this Indenture, other than the non-payment of
principal of and accrued interest on Notes which shall have become due solely by
acceleration of Maturity, shall have been cured or waived (including any
defaults under the First Mortgage, as evidenced by notice thereof from the
Mortgage Trustee to the Trustee) -- then and in every such case such payment or
deposit shall cause an automatic waiver of the Event of Default and its
consequences (including, if given, the written demand for redemption of all
Senior Note First Mortgage Bonds) and shall cause an automatic rescission and
annulment of the acceleration of the Notes; but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon.
(b) If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company and
the Trustee shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceeding had been taken.
Section 8.02 Collection Of Indebtedness By Trustee; Trustee May Prove
Debt.
(a) The Company covenants that if an Event of Default described in
clause (a)(1) or (a) (2) of Section 8.01 shall have occurred and be continuing,
then, upon demand of the Trustee,
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the Company shall pay to the Trustee, for the benefit of the Holders of the
Notes, the whole amount that then shall have so become due and payable on all
such Notes for principal or interest, as the case may be, with interest upon the
overdue principal and any premium and (to the extent that payment of such
interest is enforceable under applicable law) upon the overdue installments of
interest at the rate borne by the Notes; and, in addition thereto, such further
amounts as shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee, its agents, attorneys and
counsel, any expenses or liabilities incurred by the Trustee hereunder other
than through its negligence or bad faith. Until such demand is made by the
Trustee, the Company may pay the principal of and interest on the Notes to the
Holders, whether or not the Notes be overdue.
(b) In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at law
or in equity for the collection of the sums so due and unpaid, including, prior
to the Release Date, to exercise any rights to that end it may have as a holder
of Senior Note First Mortgage Bonds, and may enforce any such judgment or final
decree against the Company or any other obligor on the Notes and collect in the
manner provided by law out of the property of the Company or any other obligor
on such Notes wherever situated, the moneys adjudged or decreed to be payable.
(c) In case there shall be pending proceedings relative to the Company
or any other obligor upon the Notes under Title 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or its property or such other obligor, or in
case of any other comparable judicial proceedings relative to the Company or
such other obligor, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Notes shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise:
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(1) to file and prove a claim or claims for the whole amount
of the principal and interest owing and unpaid in respect of the Notes,
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including, prior
to the Release Date, any claims of the Trustee as holder of Senior Note
First Mortgage Bonds and including any amounts due to the Trustee under
Section 9.06 hereof) and of the Noteholders allowed in any judicial
proceedings relative to the Company or such other obligor, or to the
creditors or property of the Company or such other obligor; and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Noteholders and of
the Trustee on their behalf; and any trustee, receiver, liquidator,
custodian or other similar official is hereby authorized by each of the
Noteholders to make payments to the Trustee, and, in the event that the
Trustee shall consent to the making of the payments directly to the
Noteholders, to pay to the Trustee such amounts due pursuant to Section
9.06 hereof.
(d) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes of any series or tranche or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding except to vote for the election of a trustee in
bankruptcy or similar Person.
(e) All rights of action and of asserting claims under this Indenture,
or under any of the Notes may be prosecuted and enforced by the Trustee without
the possession of any of the Notes or the production thereof at any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee and its agents,
attorneys and counsel, shall be for the ratable benefit of the Holders of the
Notes in respect of which such action was taken.
(f) In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the
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Trustee shall be held to represent all the Holders of the Notes in respect to
which action as taken, and it shall not be necessary to make any Holders of such
Notes parties to any such proceedings.
Section 8.03 Application Of Proceeds. Any moneys collected by the
Trustee with respect to any of the Notes pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee for
the distribution of such moneys, upon presentation of the several Notes, and
stamping thereon the payment, if only partially paid, and upon surrender thereof
if fully paid.
FIRST: To the payment of all amounts due to the Trustee pursuant to
Section 9.06 hereof;
SECOND: In case the principal of the Outstanding Notes in respect of
which such moneys have been collected shall not have become due and be unpaid,
to the payment of interest on the Notes, in the order of the Maturity of the
installments of such interest, with interest (to the extent allowed by law) upon
the overdue installments of interest at the rate borne by the Notes, such
payments to be made ratably to the Persons entitled thereto, and then to the
payment to the Holders entitled thereto of the unpaid principal of and any
applicable premium on any of the Notes which shall have become due (other than
Notes previously called for redemption for the payment of which moneys are held
pursuant to the provisions of this Indenture), whether at Stated Maturity or by
redemption, in the order of their due dates, beginning with the earliest due
date, and if the amount available is not sufficient to pay in full all Notes due
on any particular date, then to the payment thereof ratably, according to the
amounts of principal and any applicable premium due on that date, to the Holders
entitled thereto, without any discrimination or privilege;
THIRD: In case the principal of the Outstanding Notes in respect of
which such moneys have been collected shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon the
Notes for principal and any premium, if any, and interest thereon, with interest
on the overdue principal and any premium and (to the extent allowed by law) upon
overdue installments of interest at the rate borne by the Notes; and in case
such moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Notes, then to the payment of such principal and premium, if
any, and interest without preference or priority of principal and any
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premium over interest, or of interest over principal and any premium or of any
installment of interest over any other installment of interest, or of any Note
over any other Note, ratably to the aggregate of such principal and premium, if
any, and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company or its
successors or assigns, or to whomsoever may lawfully be entitled to the same, or
as a court of competent jurisdiction may determine.
Section 8.04 Limitations On Suits By Noteholders.
(a) No Holder of any Note shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of an Event of Default with respect to such Note and of the continuance
thereof, as hereinabove provided, and unless also Noteholders of a majority in
aggregate principal amount of the Notes then Outstanding affected by such Event
of Default shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted by
the taker and Holder of every Note with every other taker and Holder and the
Trustee, that no one or more Holders of Notes shall have any right in any manner
whatever by virtue of or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holder of Notes, or to
obtain or seek to obtain priority over or preference to any other such Holder or
to enforce any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all Holders of Notes. For the
protection and enforcement of the provisions of this Section, each and every
Noteholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
(b) Notwithstanding any other provision in this Indenture, however,
the rights of any Holder of any Note to receive payment
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of the principal of and premium, if any, and interest on such Note, on or after
the respective due dates expressed in such Note or on the applicable redemption
date, or to institute suit for the enforcement of any such payment on or after
such respective dates are absolute and unconditional, and shall not be impaired
or affected without the consent of such Holder.
Section 8.05 Suits For Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture, including, prior to the Release Date, its rights as holder of the
Senior Note First Mortgage Bonds, by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights,
either by suit in equity or by action at law or by proceeding in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted to it
under this Indenture, or to enforce any other legal or equitable right vested in
the Trustee by this Indenture or by law.
Section 8.06 Powers And Remedies Cumulative; Delay Or Omission Not
Waiver Of Default. No right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Notes is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
No delay or omission of the Trustee or of any Holder of Notes to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 8.04, every right and power given by this
Indenture or by law to the Trustee or to the Holders of Notes may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Holders of Notes, as the case may be.
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Section 8.07 Direction Of Proceedings And Waiver Of Defaults By
Majority Of Noteholders.
(a) The Holders of a majority in aggregate principal amount of the
Notes at the time Outstanding shall have the right to direct the time, method,
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee; provided that such
direction shall not be otherwise than in accordance with law and the provisions
of this Indenture; and provided further that (subject to Section 9.01 hereof)
the Trustee shall have the right to decline to follow any such direction if the
Trustee being advised by counsel determines that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith by its board
of directors or trustees, executive committee, or a trust committee of directors
or trustees or Responsible Officers shall determine that the action or
proceeding so directed would involve the Trustee in personal liability. Nothing
in this Indenture shall impair the right of the Trustee in its discretion to
take any action deemed proper by the Trustee and which is not inconsistent with
such direction or directions by Noteholders.
(b) The Holders of a majority in aggregate principal amount of the
Notes at the time Outstanding may on behalf of all of the Holders of the Notes
waive any past default or Event of Default hereunder and its consequences except
a default in the payment of principal of or premium, if any, or interest on the
Notes. Upon any such waiver the Company, the Trustee and the Holders of the
Notes shall be restored to their former positions and rights hereunder,
respectively, but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Upon any such
waiver, such default shall cease to exist and be deemed to have been cured and
not to be continuing, and any Event of Default arising therefrom shall be deemed
to have been cured and not to be continuing, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
Section 8.08 Notice Of Default. The Trustee shall, within 90 days after
the occurrence of a default with respect to the Notes, give to all Holders of
the Notes, in the manner provided in Section 15.10, notice of such default known
to the Trustee, unless such default shall have been cured or waived before the
giving of such notice, the term "default" for the purpose of this Section 8.08
being hereby defined to be any event which is
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or after notice or lapse of time or both would become an Event of Default;
provided that, except in the case of default in the payment of the principal of
or premium, if any, or interest on any of the Notes, the Trustee shall be
protected in withholding such notice if and so long as its board of directors or
trustees, executive committee, or a trust committee of directors or trustees or
Responsible Officers in good faith determines that the withholding of such
notice is in the interests of the Holders of the Notes.
Section 8.09 Undertaking To Pay Costs. All parties to this Indenture
agree, and each Holder of any Note by acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but this Section 8.09 shall not apply to any suit
instituted by the Trustee, or to any suit instituted by any Noteholder, or group
of Noteholders, holding in the aggregate more than 10% in principal amount of
the Notes Outstanding, or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal of or premium, if any, or interest
on any Note on or after the due date expressed in such Note or the applicable
redemption date.
Section 8.10 Restoration Of Rights On Abandonment Of Proceedings. In
case the Trustee or any Holder shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to the Trustee or to
such Holder, then, and in every such case, the Company, the Trustee and the
Holders shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company, the Trustee and
the Holders shall continue as though no such proceedings had been taken.
Section 8.11 Defaults Under The First Mortgage. In addition to every
other right and remedy provided herein, the Trustee may exercise any right or
remedy available to the Trustee in its capacity as owner and holder of Senior
Note First Mortgage Bonds which arises as a result of a completed default
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under the First Mortgage whether or not an Event of Default under this Indenture
shall then have occurred and be continuing.
Section 8.12 Waiver Of Usury, Stay Or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 Duties And Responsibilities Of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. If an Event of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) No provisions of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(1) prior to the occurrence of any Event of Default and
after the curing or waiving of all Events of Default which may have
occurred
(A) the duties and obligations of the
Trustee shall be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable except
for the performance of such
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duties and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and
(B) in the absence of bad faith or actual
knowledge on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction, pursuant to this Indenture, of the Holders of a majority in
principal amount of the Notes, including, but not limited to, Section
8.07 hereof relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Indenture.
Section 9.02 Reliance On Documents, Opinions, Etc. Except as otherwise
provided in Section 9.01 hereof:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, note or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof is herein specifically prescribed); and any Board
Resolution may be
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evidenced to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Noteholders, pursuant to this Indenture, unless such
Noteholders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred by such
exercise;
(e) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, note or other paper or document, unless requested in writing to
do so by the Holders of at least a majority in principal amount of the then
Outstanding Notes; provided that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by this Indenture, the
Trustee may require reasonable indemnity against such expense or liability as a
condition to so proceeding; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through agents or attorneys;
provided that the Trustee shall not be liable for the conduct or acts of any
such agent or attorney that shall have been appointed in accordance herewith
with due care.
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Section 9.03 No Responsibility For Recitals, Etc. The recitals
contained herein and in the Notes (except in the certificate of authentication)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with this Indenture.
Section 9.04 Trustee, Authenticating Agent, Paying Agent Or Registrar
May Own Notes. The Trustee and any Authenticating Agent, paying agent or
registrar, in its individual or other capacity, may become the owner or pledgee
of Notes with the same rights it would have if it were not Trustee,
Authenticating Agent or paying agent.
Section 9.05 Moneys To Be Held In Trust. Subject to Section 5.04
hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
law. The Trustee may allow and credit to the Company interest on any money
received hereunder at such rate, if any, as may be agreed upon by the Company
and the Trustee from time to time as may be permitted by law.
Section 9.06 Compensation And Expenses Of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any
law in regard to the compensation of a trustee of an express trust), and the
Company shall pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with this Indenture (including the reasonable compensation and the
reasonable expenses and disbursements of its counsel and agents, including any
Authenticating Agents, and of all Persons not regularly in its employ) except
any such expense, disbursement or advance as may arise from its negligence or
bad faith. The Company also covenants to indemnify the Trustee for, and to hold
it harmless against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim or liability. The obligations of the
Company
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under this Section 9.06 to compensate the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by a lien
prior to that of the Notes upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the Holders of
any particular Notes.
Section 9.07 Officers' Certificate As Evidence. Whenever in the
administration of this Indenture, the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to the taking, suffering
or omitting of any action hereunder, such matter (unless other evidence in
respect thereof is herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee, and
such Officers' Certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under this Indenture in reliance thereon.
Section 9.08 Conflicting Interest Of Trustee. The Trustee shall be
subject to and shall comply with the provisions of Section 310(b) of the TIA.
Nothing in this Indenture shall be deemed to prohibit the Trustee or the Company
from making any application permitted pursuant to such section.
Section 9.09 Existence And Eligibility Of Trustee. There shall at all
times be a Trustee hereunder which Trustee shall at all times be a corporation
organized and doing business under the laws of the United States or any State
thereof or of the District of Columbia having a combined capital and surplus of
at least $50,000,000 and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal
or State authorities. Such corporation shall have its principal place of
business in the Borough of Manhattan, The City of New York, State of New York,
if there be such a corporation in such location willing to act upon reasonable
and customary terms and conditions. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid authority, then for the purposes of this Section 9.09, the combined
capital and surplus shall be deemed to be as set forth in its most recent report
of condition so published. No obligor upon the Notes or Person directly or
indirectly controlling, controlled by, or under common control with such obligor
shall
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serve as Trustee. If at any time the Trustee shall cease to be eligible in
accordance with this Section 9.09, the Trustee shall resign immediately in the
manner and with the effect specified in Section 9.10 hereof.
Section 9.10 Resignation Or Removal Of Trustee.
(a) Pursuant to the provisions of this Article, the Trustee may at any
time resign and be discharged of the trusts created by this Indenture by giving
at least 30 days prior written notice to the Company specifying the day upon
which such resignation shall take effect, and such resignation shall take effect
immediately upon the later of the appointment of a successor trustee and such
day.
(b) Any Trustee may be removed at any time by an instrument or
concurrent instruments in writing filed with such Trustee and signed and
acknowledged by the Holders of a majority in principal amount of the then
Outstanding Notes or by their attorneys in fact duly authorized.
(c) So long as no Event of Default has occurred and is continuing, and
no event has occurred and is continuing that, with the giving of notice or the
lapse of time or both, would become an Event of Default, the Company may remove
any Trustee upon written notice to the Holder of each Note Outstanding and the
Trustee and appoint a successor Trustee meeting the requirements of Section
9.09. The Company or the successor Trustee shall give notice to the Holders, in
the manner provided in Section 15.10, of such removal and appointment within 30
days of such removal and appointment.
(d) If at any time (i) the Trustee shall cease to be eligible in
accordance with Section 9.09 hereof and shall fail to resign after written
request therefor by the Company or by any Holder who has been a bona fide Holder
for at least six months, (ii) the Trustee shall fail to comply with Section 9.08
hereof after written request therefor by the Company or any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Trustee may be removed forthwith by an instrument or
concurrent instruments in writing filed with the Trustee and either:
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(1) signed by the Chairman, President or any Vice President of
the Company and attested by the Secretary or an Assistant Secretary of the
Company; or
(2) signed and acknowledged by the Holders of a majority in
principal amount of Outstanding Notes or by their attorneys in fact
duly authorized.
(e) Any resignation or removal of the Trustee shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 9.12 hereof.
Section 9.11 Appointment Of Successor Trustee.
(a) If at any time the Trustee shall resign or be removed, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee.
(b) The Company shall provide written notice of its appointment of a
successor Trustee to the Holder of each Note Outstanding following any such
appointment.
(c) If no appointment of a successor Trustee shall be made pursuant to
Section 9.11(a) hereof within 60 days after appointment shall be required, any
Noteholder or the resigning Trustee may apply to any court of competent
jurisdiction to appoint a successor Trustee. Said court may thereupon after such
notice, if any, as such court may deem proper and prescribe, appoint a successor
Trustee.
(d) Any Trustee appointed under this Section 9.11 as a successor
Trustee shall be a bank or trust company eligible under Section 9.09 hereof and
qualified under Section 9.08 hereof.
Section 9.12 Acceptance By Successor Trustee.
(a) Any successor Trustee appointed as provided in Section 9.11 hereof
shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee
herein; but nevertheless, on the written request of the Company or of the
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successor Trustee, the Trustee ceasing to act shall, upon payment of any amounts
then due it pursuant to Section 9.06 hereof, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act, including all right, title, and interest in the Senior Note
First Mortgage Bonds. Upon request of any such successor Trustee, the Company
shall execute any and all instruments in writing in order more fully and
certainly to vest in and confirm to such successor Trustee all such rights and
powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon all
property or funds held or collected by such Trustee to secure any amounts then
due it pursuant to Section 9.06 hereof.
(b) No successor Trustee shall accept appointment as provided in this
Section 9.12 unless at the time of such acceptance such successor Trustee shall
be qualified under Section 9.08 hereof and eligible under Section 9.09 hereof.
(c) Upon acceptance of appointment by a successor Trustee as provided
in this Section 9.12, the successor Trustee shall mail notice of its succession
hereunder to all Holders of Notes as the names and addresses of such Holders
appear on the registry books.
Section 9.13 Succession By Merger, Etc.
(a) Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, provided such corporation shall be otherwise qualified and
eligible under this Article.
(b) If at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor
Trustee;
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and in all such cases such certificates shall have the full force which it is
anywhere in the Notes or in this Indenture provided that the certificates of the
Trustee shall have; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Notes in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 9.14 Limitations On Rights Of Trustee As A Creditor. The
Trustee shall be subject to, and shall comply with, the provisions of Section
311 of the TIA.
Section 9.15 Authenticating Agent.
(a) There may be one or more Authenticating Agents appointed by the
Trustee with the written consent of the Company, with power to act on its behalf
and subject to the direction of the Trustee in the authentication and delivery
of Notes in connection with transfers and exchanges under Sections 2.06, 2.07,
2.08, 2.13, 3.03, and 13.04 hereof, as fully to all intents and purposes as
though such Authenticating Agents had been expressly authorized by those
Sections to authenticate and deliver Notes. For all purposes of this Indenture,
the authentication and delivery of Notes by any Authenticating Agent pursuant to
this Section 9.15 shall be deemed to be the authentication and delivery of such
Notes "by the Trustee." Any such Authenticating Agent shall be a bank or trust
company or other Person of the character and qualifications set forth in Section
9.09 hereof.
(b) Any corporation into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 9.15, without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent or such successor
corporation.
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company. Upon receiving
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such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible under this Section 9.15, the
Trustee may, with the written consent of the Company, appoint a successor
Authenticating Agent, and upon so doing shall give written notice of such
appointment to the Company and shall mail, in the manner provided in Section
15.10, notice of such appointment to the Holders of Notes.
(d) The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services, and the Trustee shall be entitled
to be reimbursed for such payments, in accordance with Section 9.06 hereof.
(e) Sections 9.02, 9.03, 9.06, 9.07 and 9.09 hereof shall be applicable
to any Authenticating Agent.
ARTICLE X
CONCERNING THE NOTEHOLDERS
Section 10.01 Action By Noteholders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Notes may take any action, the fact that at the time of taking any
such action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Noteholders in Person or by agent or proxy appointed in
writing, (b) by the record of such Noteholders voting in favor thereof at any
meeting of Noteholders duly called and held in accordance with Article XI
hereof, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Noteholders.
Section 10.02 Proof Of Execution By Noteholders.
(a) Subject to Sections 9.01, 9.02 and 11.05 hereof, proof of the
execution of any instruments by a Noteholder or the agent or proxy for such
Noteholder shall be sufficient if made in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as shall
be satisfactory to the Trustee. The ownership of Notes shall be proved by the
register for the Notes maintained by the Trustee.
(b) The record of any Noteholders' meeting shall be proven in the
manner provided in Section 11.06 hereof.
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Section 10.03 Persons Deemed Absolute Owners. Subject to Sections
2.04(f) and 10.01 hereof, the Company, the Trustee, any paying agent and any
Authenticating Agent shall deem the Person in whose name any Note shall be
registered upon the register for the Notes to be, and shall treat such Person
as, the absolute owner of such Note (whether or not such Note shall be overdue)
for the purpose of receiving payment of or on account of the principal and
premium, if any, and interest on such Note, and for all other purposes; and
neither the Company nor the Trustee nor any paying agent nor any Authenticating
Agent shall be affected by any notice to the contrary. All such payments shall
be valid and effectual to satisfy and discharge the liability upon any such Note
to the extent of the sum or sums so paid.
Section 10.04 Company-Owned Notes Disregarded. In determining whether
the Holders of the requisite aggregate principal amount of Outstanding Notes
have concurred in any direction, consent or waiver under this Indenture, Notes
which are owned by the Company or any other obligor on the Notes or by any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Notes shall
be disregarded and deemed not to be Outstanding for the purpose of any such
determination; provided that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Notes which the Trustee knows are so owned shall be so disregarded. Notes
so owned which have been pledged in good faith to third parties may be regarded
as Outstanding for the purposes of this Section 10.04 if the pledgee shall
establish the pledgee's right to take action with respect to such Notes and that
the pledgee is not a Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any such other
obligor. In the case of a dispute as to such right, the Trustee may rely upon an
Opinion of Counsel and an Officers' Certificate to establish the foregoing.
Section 10.05 Revocation Of Consents; Future Holders Bound. Except as
may be otherwise required in the case of a Global Note by the applicable rules
and regulations of the Depositary, at any time prior to the taking of any action
by the Holders of the percentage in aggregate principal amount of the Notes
specified in this Indenture in connection with such action, any Holder of a
Note, which has been included in the Notes the Holders of which have consented
to such action may, by filing written notice with the Trustee at the Corporate
Trust Office of the Trustee and upon proof of ownership as provided in Section
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10.02(a) hereof, revoke such action so far as it concerns such Note. Except as
aforesaid, any such action taken by the Holder of any Note shall be conclusive
and binding upon such Holder and upon all future Holders and owners of such Note
and of any Notes issued in exchange, substitution or upon registration of
transfer therefor, irrespective of whether or not any notation thereof is made
upon such Note or such other Notes.
Section 10.06 Record Date For Noteholder Acts. If the Company shall
solicit from the Noteholders any request, demand, authorization, direction,
notice, consent, waiver or other act, the Company may, at its option, by Board
Resolution, fix in advance a record date for the determination of Noteholders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other act may be given before or after the record
date, but only the Noteholders of record at the close of business on the record
date shall be deemed to be Noteholders for the purpose of determining whether
Holders of the requisite aggregate principal amount of Outstanding Notes have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other act, and for that purpose the
Outstanding Notes shall be computed as of the record date; provided that no such
request, demand, authorization, direction, notice, consent, waiver or other act
by the Noteholders on the record date shall be deemed effective unless it shall
become effective pursuant to this Indenture not later than six months after the
record date. Any such record date shall be at least 30 days prior to the date of
the solicitation to the Noteholders by the Company.
ARTICLE XI
NOTEHOLDERS' MEETING
Section 11.01 Purposes Of Meetings. A meeting of Noteholders may be
called at any time and from time to time pursuant to this Article XI for any of
the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any Event of Default
hereunder and its consequences, or to take any other action authorized to be
taken by Noteholders pursuant to Article XIII;
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(b) to remove the Trustee pursuant to Article IX;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Section 13.02 hereof; or
(d) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Notes, as the
case may be, under any other provision of this Indenture or under applicable
law.
Section 11.02 Call Of Meetings By Trustee. The Trustee may at any time
call a meeting of Holders of Notes to take any action specified in Section 11.01
hereof, to be held at such time and at such place as the Trustee shall
determine. Notice of every such meeting of Noteholders, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given to Holders of the Notes that may be
affected by the action proposed to be taken at such meeting in the manner
provided in Section 15.10 hereof. Such notice shall be given not less than 20
nor more than 90 days prior to the date fixed for such meeting.
Section 11.03 Call Of Meetings By Company Or Noteholders. If at any
time the Company, pursuant to a Board Resolution, or the Holders of at least 10%
in aggregate principal amount of the Notes then Outstanding, shall have
requested the Trustee to call a meeting of Noteholders, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting within
20 days after receipt of such request, then the Company or such Noteholders may
determine the time and the place for such meeting and may call such meeting to
take any action authorized in Section 11.01 hereof, by giving notice thereof as
provided in Section 11.02 hereof.
Section 11.04 Qualifications For Voting. To be entitled to vote at any
meetings of Noteholders a Person shall (a) be a Holder of one or more Notes
affected by the action proposed to be taken or (b) be a Person appointed by an
instrument in writing as proxy by a Holder of one or more such Notes. The only
Persons who shall be entitled to be present or to speak at any meeting of
Noteholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives (including employees) of the Trustee and its
counsel and any representatives (including employees) of the Company and its
counsel.
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Section 11.05 Regulations.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Noteholders in regard to proof of the holding of Notes and of the appointment of
proxies, and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall think fit.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by the Noteholders as provided in Section 11.03 hereof, in which case
the Company or Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by the Holders of a majority in
aggregate principal amount of the Notes present in Person or by proxy at the
meeting.
(c) Subject to Section 10.04 hereof, at any meeting each Noteholder or
proxy shall be entitled to one vote for each $1,000 principal amount of Notes
held or represented by such Noteholder; provided that no vote shall be cast or
counted at any meeting in respect of any Note determined to be not Outstanding.
The chairman of the meeting shall have no right to vote other than by virtue of
Notes held by such chairman or instruments in writing as aforesaid duly
designating such chairman as the Person to vote on behalf of other Noteholders.
At any meeting of Noteholders duly called pursuant to Section 11.02 or 11.03
hereof, the presence of Persons holding or representing Notes in an aggregate
principal amount sufficient to take action on any business for the transaction
for which such meeting was called shall constitute a quorum. Any meeting of
Noteholders duly called pursuant to Section 11.02 or 11.03 hereof may be
adjourned from time to time by the Holders of a majority in aggregate principal
amount of the Notes present in Person or by proxy at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
Section 11.06 Voting. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballots on which shall be subscribed
the signatures of the Holders of Notes or of their representatives by proxy and
the
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principal amount of Notes held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of such
meeting of Noteholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was given as provided in Section 11.02 hereof. The
record shall show the aggregate principal amount of the Notes voting in favor of
or against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee and the Trustee shall have the ballots taken at the
meeting attached to such duplicate. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
Section 11.07 Rights Of Trustee Or Noteholders Not Delayed. Nothing in
this Article XI shall be deemed or construed to authorize or permit, by reason
of any call of a meeting of Noteholders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to the Holders
of Notes under any of the provisions of this Indenture or of the Notes.
ARTICLE XII
CONSOLIDATION, MERGER, SALE, TRANSFER OR CONVEYANCE
Section 12.01 Company May Consolidate, Etc. Only On Certain Terms. The
Company shall not consolidate with or merge into any other corporation or entity
or sell, or otherwise dispose of its properties as or substantially as an
entirety to any Person unless the Company has delivered to the Trustee the
supplemental indenture referred to in (b) below and an Officers' Certificate and
an Opinion of Counsel each stating that such consolidation, merger, conveyance
or transfer and such supplemental indenture comply with this Article XII and
that all conditions precedent herein provided for have been complied with, and
the corporation formed by such consolidation or into which the Company is merged
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or the Person which receives such properties pursuant to such sale, transfer or
other disposition (a) shall be a corporation or other entity organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia; (b) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the principal of
and premium, if any, and interest on all of the Notes and the performance of
every covenant of this Indenture on the part of the Company to be performed or
observed and (c) if such consolidation, merger, sale, transfer or other
disposition occurs prior to the Release Date, shall expressly assume, by an
indenture supplemental to the First Mortgage, executed and delivered to the
Mortgage Trustee, the due and punctual payment of the principal of and premium,
if any, and interest on all of the Senior Note First Mortgage Bonds and the
performance of every covenant of the First Mortgage on the part of the Company
to be performed or observed.
Anything in this Indenture to the contrary notwithstanding, the
conveyance or other transfer by the Company of (a) all or any portion of its
facilities for the generation of electric energy, or (b) all of its facilities
for the transmission of electric energy, in each case considered alone or in any
combination with properties described in any other clause, shall in no event be
deemed to constitute a conveyance or other transfer of all the properties of the
Company, as or substantially as an entirety. The character of particular
facilities shall be determined in accordance with the Uniform System of Accounts
prescribed for public utilities and licensees subject to the Federal Power Act,
as amended, to the extent applicable.
Section 12.02 Successor Corporation Substituted. Upon any consolidation
or merger, or any sale, transfer or other disposition of the properties of the
Company substantially as an entirety in accordance with Section 12.01 hereof,
the successor corporation formed by such consolidation or into which the Company
is merged or to which such sale, transfer or other disposition is made shall
succeed to, and be substituted for and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein and the Company shall be
released from all obligations hereunder.
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ARTICLE XIII
SUPPLEMENTAL INDENTURES
Section 13.01 Supplemental Indentures Without Consent Of Noteholders.
(a) The Company, when authorized by Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
(1) to make such provision in regard to matters or questions
arising under this Indenture as may be necessary or desirable, and not
inconsistent with this Indenture or prejudicial to the interests of the
Holders in any material respect, for the purpose of supplying any
omission, curing any ambiguity, or curing, correcting or supplementing
any defective or inconsistent provision;
(2) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Note Outstanding created prior to the
execution of such supplemental indenture which is entitled to the
benefit of such provision or such change or elimination is applicable
only to Notes issued after the effective date of such change or
elimination;
(3) to establish the form of Notes as permitted by Section
2.01 hereof or to establish or reflect any terms of any Note determined
pursuant to Section 2.05 hereof;
(4) to evidence the succession of another corporation to the
Company as permitted hereunder, and the assumption by any such
successor of the covenants of the Company herein and in the Notes;
(5) to grant to or confer upon the Trustee for the benefit of
the Holders any additional rights, remedies, powers or authority;
(6) to permit the Trustee to comply with any duties imposed
upon it by law;
(7) to specify further the duties and responsibilities of,
and to define further the
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relationships among the Trustee, any Authenticating Agent and any
paying agent;
(8) to add to the covenants of the Company for the benefit of
the Holders of one or more series or tranches of Notes, to add to the
security for the Notes, to surrender a right or power conferred on the
Company herein or to add any Event of Default with respect to one or
more series or tranches of Notes;
(9) to comply with the Company's obligations under Section
6.07; and
(10) to make any other change that is not prejudicial to the
Holders in any material respect.
(b) The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
(c) Any supplemental indenture authorized by this Section 13.01 may be
executed by the Company and the Trustee without the consent of the Holders of
any of the Notes at the time Outstanding, notwithstanding any of the provisions
of Section 13.02 hereof.
Section 13.02 Supplemental Indentures With Consent Of Noteholders.
(a) With the consent (evidenced as provided in Section 10.01 hereof) of
the Holders of a majority in aggregate principal amount of the Notes at the time
Outstanding, the Company, when authorized by Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
Noteholders; provided that no such supplemental indenture shall:
(1) change the Stated Maturity Date of any Note, or reduce
the rate (or change the method of calculation
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thereof) or extend the time of payment of interest thereon, or reduce the
principal amount thereof or premium, if any, thereon, or change the coin or
currency in which the principal of any Note or premium, if any, or interest
thereon is payable, or change the date on which any Note may be redeemed or
adversely affect the rights of the Noteholders to institute suit for the
enforcement of any payment of principal of or premium, if any, or interest on
any Note, or impair the interest hereunder of the Trustee in the Senior Note
First Mortgage Bonds, or prior to the Release Date, reduce the principal amount
of any series or tranche of Senior Note First Mortgage Bonds to an amount less
than the principal amount of the Related Notes or alter the payment provisions
of such Senior Note First Mortgage Bonds in a manner adverse to the Holders of
the Notes, in each case without the consent of the Holder of each Note so
affected; or
(2) modify this Section 13.02(a) or reduce the aforesaid
percentage of Notes, the Holders of which are required to consent to
any such supplemental indenture or to reduce the percentage of Notes,
the Holders of which are required to waive Events of Default, in each
case, without the consent of the Holders of all of the Notes then
Outstanding.
(b) Upon the request of the Company, accompanied by a copy of the Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Noteholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
(c) A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture (or any supplemental indenture) which has
expressly been included solely for the benefit of one or more series or tranches
of Notes, or which modifies the rights of the Holders of Notes of such series or
tranche with respect to such covenant or provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Notes of any other
series or tranche.
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(d) It shall not be necessary for the consent of the Holders of Notes
under this Section 13.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
(e) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to this Section 13.02, the Trustee shall give
notice in the manner provided in Section 15.10 hereof, setting forth in general
terms the substance of such supplemental indenture, to all Noteholders. Any
failure of the Trustee to give such notice or any defect therein shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
Section 13.03 Compliance With Trust Indenture Act; Effect Of
Supplemental Indentures. Any supplemental indenture executed pursuant to this
Article XIII shall comply with the TIA. Upon the execution of any supplemental
indenture pursuant to this Article XIII, the Indenture shall be and be deemed to
be modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the Noteholders shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 13.04 Notation On Notes. Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article XIII
may bear a notation in form approved by the Trustee as to any matter provided
for in such supplemental indenture. If the Company shall so determine, new Notes
so modified as approved by the Trustee and the Board of Directors with respect
to any modification of this Indenture contained in any such supplemental
indenture may be prepared and executed by the Company, authenticated by the
Trustee and delivered in exchange for the Notes then Outstanding.
Section 13.05 Evidence Of Compliance Of Supplemental Indenture To Be
Furnished Trustee. The Trustee, subject to Sections 9.01 and 9.02 hereof, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article XIII.
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ARTICLE XIV
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01 Indenture And Notes Solely Corporate Obligations. No
recourse for the payment of the principal of or premium, if any, or interest on
any Note, or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company,
contained in this Indenture, the First Mortgage or in any supplemental
indenture, or in any Note or in any Senior Note First Mortgage Bond, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of the Notes.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01 Provisions Binding On Company's Successors. All the
covenants, stipulations, promises and agreements made by the Company in this
Indenture shall bind its successors and assigns whether so expressed or not.
Section 15.02 Official Acts By Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful successor of the
Company.
Section 15.03 Notices. Any notice or demand which by any provision of
this Indenture is required or permitted to be given or served by the Trustee or
by the Noteholders on the Company may be given or served by being deposited
postage prepaid in a
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post office letter box addressed (until another address is filed by the Company
with the Trustee) at the principal executive offices of the Company, to the
attention of the Secretary. Any notice, direction, request or demand by any
Noteholder, the Company or the Mortgage Trustee to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the Corporate Trust Office of the Trustee, Attention:
Corporate Trust Department.
SECTION 15.04 GOVERNING LAW. THIS INDENTURE AND EACH NOTE SHALL BE
GOVERNED BY AND DEEMED TO BE A CONTRACT UNDER, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES THEREOF, EXCEPT AS MAY OTHERWISE BE REQUIRED BY MANDATORY PROVISIONS
OF LAW.
Section 15.05 Evidence Of Compliance With Conditions Precedent.
(a) Upon any application or demand by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenants compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificates delivered pursuant
to Section 6.06 hereof) shall include (1) a statement that each Person making
such certificate or opinion has read such covenant or condition and the
definitions relating thereto; (2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the
opinion of each such Person, such Person has made such examination or
investigation as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and (4) a statement as to whether or not, in the opinion of each such Person,
such condition or covenant has been complied with.
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(c) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(d) Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel delivered under the
Indenture may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such Person knows, or in the exercise of
reasonable care should know, that the certificate or opinion of representations
with respect to such matters are erroneous. Any Opinion of Counsel delivered
hereunder may contain standard exceptions and qualifications reasonably
satisfactory to the Trustee.
(e) Any certificate, statement or opinion of any officer of the
Company, or of counsel, may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an independent
public accountant or firm of accountants, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which the certificate, statement or
opinion of such officer or counsel may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous. Any
certificate or opinion of any firm of independent public accountants filed with
the Trustee shall contain a statement that such firm is independent.
(f) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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Section 15.06 Business Days. Unless otherwise provided pursuant to
Section 2.05(c) hereof, in any case where the date of Maturity of the principal
of or premium, if any, or interest on any Note or the date fixed for redemption
of any Note is not a Business Day, then payment of such principal or premium, if
any, or interest need not be made on such date but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
Maturity or the date fixed for redemption, and, in the case of timely payment
thereof, no interest shall accrue for the period from and after such Interest
Payment Date or the date on which the principal or premium, if any, of the Note
is required to be paid.
Section 15.07 Trust Indenture Act To Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by the TIA, such required provision of the TIA shall govern.
Section 15.08 Table Of Contents, Headings, Etc. The table of contents
and the titles and headings of the articles and sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 15.09 Execution In Counterparts. This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 15.10 Manner Of Mailing Notice To Noteholders.
(a) Any notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or the Company to or on the
Holders of Notes, as the case may be, shall be given or served by first-class
mail, postage prepaid, addressed to the Holders of such Notes at their last
addresses as the same appear on the register for the Notes referred to in
Section 2.06, and any such notice shall be deemed to be given or served by being
deposited in a post office letter box in the form and manner provided in this
Section 15.10. In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give notice to any Holder
by mail, then such notification to such Holder as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.
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(b) The Company shall also provide any notices required under this
Indenture by publication, but only to the extent that such publication is
required by the TIA, the rules and regulations of the Commission or any
securities exchange upon which any series of Notes is listed.
Section 15.11 Approval By Trustee Of Expert Or Counsel. Wherever the
Trustee is required to approve an Expert or counsel who is to furnish evidence
of compliance with conditions precedent in this Indenture, such approval by the
Trustee shall be deemed to have been given upon the taking of any action by the
Trustee pursuant to and in accordance with the certificate or opinion so
furnished by such Expert or counsel.
IN WITNESS WHEREOF, the undersigned, being duly authorized,
have executed this Indenture on behalf of the respective parties hereto as of
the date first above written.
METROPOLITAN EDISON COMPANY
By:____________________________
Name:
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK
AS TRUSTEE
By:____________________________
Name:
Title:
84
Exhibit C-214
GPU International, Inc.
Annual Performance Award Plan
As Amended and Restated Effective as of January 1, 1999
1. Purpose
The purpose of the GPU International, Inc. Annual Performance Award Plan is
to create incentives for achieving annual business goals, to attract and
retain highly qualified Employees, to obtain from each the best possible
performance, and to underscore the importance of teamwork in the achievement
of business results.
2. Definitions
As used herein, the following terms shall have the following meanings:
"Affiliated Company" shall mean any corporation other than GPUI, all of the
common stock of which is owned, directly or indirectly, by GPU, Inc.
"Award" shall mean an award made to an Employee pursuant to the provisions
of the Plan.
"Base Salary" shall mean, for any Employee with respect to any Performance
Period, the annual rate of Base Salary in effect for such Employee on the
last day of such Period.
"Board" shall mean the Board of Directors of GPUI.
"Change in Control" shall mean a "Change in Control" of GPU, Inc., as
defined in the 1990 Stock Plan for Employees of GPU, Inc. and
Subsidiaries.
"Employee" shall mean, with respect to any Performance Period, any
individual who at any time during such period is employed on a regular full
time salaried basis by GPUI. For purposes of the foregoing, an individual
shall be treated as employed on a full time basis only if he or she is
regularly scheduled to work at least 30 hours a week. Any individual who is
hired after November 30 of any Performance Period shall not be treated as
an "Employee" for such Period.
<PAGE>
"GPU Board" shall mean the Board of Directors of GPU, Inc.
"GPUI" shall mean GPU International, Inc.
"Performance Period" shall mean each calendar year.
"Plan" shall mean the GPU International, Inc. Annual Performance Award
Plan, as set forth herein and as amended from time to time.
"President" shall mean the President of GPUI.
3. Eligibility for Awards
(a) Except as otherwise provided in (d) below, the President shall be
eligible to receive an Award for each Performance Period.
(b) The President shall determine the Employees, if any, who shall be
eligible to receive Awards for each Performance Period.
(c) Any Employee who has been designated by the President as eligible
to receive an Award for a Performance Period but who terminates
employment for any reason prior to the end of such Period may
receive such portion of an Award, if any, for such Period (based
on the Employee's Base Salary in effect immediately prior to the
date of the Employee's termination of employment) as the
President, in his discretion, may determine. If the President is
eligible to receive an Award for a Performance Period but
terminates employment for any reason prior to the end of such
Period, the President may receive such portion of an Award, if
any, for such Period (based on his Base Salary in effect
immediately prior to the date of his termination of employment)
as the Board, in its discretion, may determine.
(d) Any officer of GPUI who is eligible to receive an award for any year
under any annual incentive compensation plan maintained by any
Affiliated Company shall not be eligible to receive an Award under
this Plan for the Performance Period corresponding to such year.
However, if any such officer is entitled to receive only a prorated
award for such year under the plan so maintained
<PAGE>
by an Affiliated Company because of the transfer of such officer's
employment from such Affiliated Company to GPUI during such year,
the officer shall be eligible to receive an Award under this Plan
for the Performance Period corresponding to such year, if the
officer has been designated by the President as eligible to receive
an award for such Performance Period as provided in (b) above.
4. Determination of Amount of Awards
(a) Subject to the provisions of (e) below, the Award payable to an
Employee for any Performance Period shall be the amount determined
by multiplying (i) the sum of (A) the Company Performance Component
of the Employee's Award for such Period, as determined in accordance
with (b) below, and (B) the Employee Performance Component of the
Employee's Award for such Period,
(b) as determined in accordance with (c) below, by (ii) the Employee's
Target Award Percentage for such Period, as determined in accordance
with (d) below.
(c) The Company Performance Component of an Employee's Award for any
Performance Period shall be based on the level of achievement of
corporate goals established for such Period, and shall be determined
in accordance with the following provisions:
(i) As soon as practicable after the start of the Performance
Period, the Board, subject to the approval of the GPU
Board, shall establish the corporate goals that will be
applicable for such Period, and the values associated
with achieving those goals, which values shall be
expressed as percentages (the "Corporate Performance
Percentages") that will apply based on the level of
achievement of such corporate goals. The Board, with the
approval of the GPU Board, may establish different
Corporate Performance Percentages for different
categories of Employees, and such percentages may be
greater than 100% if the corporate goals are exceeded and
less than 100% if the corporate goals have not been fully
achieved.
<PAGE>
(ii) As of the end of the Performance Period, the Board, with the
approval of the GPU Board, shall determine the extent to
which the corporate goals for such Period have been met and,
based thereon, the Corporate Performance Percentages that
will apply in determining the Company Performance Component
of Awards for such period.
(iii) The Company Performance Component of an Employee's Award for
the Performance Period shall be an amount equal to 50% of
the product of (A) the Employee's Base Salary for such
Period, multiplied by (B) the Corporate Performance
Percentage applicable to the Employee for such Period, as
determined in accordance with (i) and (ii) above.
(d) The Employee Performance Component of an Employee's Award for any
Performance Period shall be an amount equal to 50% of the product of
(A) of the Employee's Base Salary for such Period, multiplied by (B)
the Individual Performance Percentage applicable to the Employee for
such Period, as determined in accordance with the following
provisions:
(i) Except as otherwise provided in (ii) and (iii) below, an
Employee's Individual Performance Percentage for any
Performance Period shall be determined from Table 1 appended
hereto, on the basis of the performance rating determined
for the Employee for such Period by the President based upon
the recommendation of the Employee's immediate supervisor.
(ii) If the President in his discretion so determines, the
Individual Performance Percentage applicable to any
Employee or group of Employees for any Performance Period
shall be determined on the basis of the level of
achievement of individual goals established for such
Employee or Employees for such Period, instead of on the
basis of the performance ratings and percentages set
forth in Table 1. In such case, each affected Employee
shall be furnished, as soon as practicable after the
<PAGE>
start of the Performance Period, with a written notice
describing the individual goals established for the Employee
and the Individual Performance Percentages that will apply
based on the level of the Employee's achievement of such
goals. The goals so established shall represent goals that
support the achievement of GPUI corporate goals, including
its financial, organizational development and diversity
objectives. The extent to which the individual goals so
established for an Employee have been achieved shall be
determined as of the end of the Performance Period by the
President upon the recommendation of the Employee's
immediate supervisor.
(iii) In the case of the President, his Individual Performance
Percentage shall be determined in the manner described in
(ii) above. For this purpose, the goals and
corresponding Individual Performance Percentages
applicable to the President, and the extent to which he
has achieved those goals, shall be determined by the
Executive Vice President of the GPU International
Operations Group.
(e) An Employee's Target Award Percentage for any Performance Period
shall be determined in accordance with the table set forth below
based on the position held by the Employee as of the last day of
such period:
<PAGE>
Position Held Target Award Percentage
Officers and Managing Directors 15% or such greater percentage
- ------------------------------- As the Executive Committee of
The Board of GPUI may determine
----------------------------------
Directors and Business 15%
Development Managers
Other Professional Staff (exempt 10%
Clerical Stall (nonexempt) 5%
<PAGE>
(f) Notwithstanding any other provision in this Section 4 to the
contrary, Awards under the Plan shall be subject to the following
provisions:
(i) If the Board or the GPU Board has specified a minimum level
of performance for the corporate goals that have been
established for purposes of determining the Company
Performance Component of Awards payable to any group of
Employees for any Performance Period, no Award shall be made
for such Period to any Employee in such group unless such
minimum level of performance has been achieved.
(ii) The Award payable to any Employee for the Performance
Period in which the Employee commences employment with
GPUI or any Affiliated Company shall be equal to (A) the
amount determined for the Employee in accordance with the
preceding provisions of this Section 4, multiplied by (B)
a fraction, the numerator of which is the number of days
in the period which begins on the Employee's date of hire
and ends on the last day of the Performance Period, and
the denominator of which is 365.
(iii) The amount of the Award payable to an Employee for any
Performance Period, as otherwise determined in accordance
with the preceding provisions of this Section 4, shall be
rounded to the nearest one hundred ($100) dollars.
5. Change in Control
Notwithstanding any other provision herein to the contrary, if a Change in
Control occurs, then in respect of the Performance Period in which the
Change in Control occurs (and in respect of the previous Performance
Period if the Change in Control occurs prior to the time Awards for such
Performance Period have been made), the following provisions shall apply:
(a) For purposes of determining the Company Performance Component and
the Employee Performance Component of Awards for each such Period,
the Corporate Performance Percentage and the
<PAGE>
Individual Performance Percentage applicable to each Employee who,
prior to the occurrence of such Change in Control, was designated as
eligible for an Award for such Period shall be no lower than 100%
for each such Period.
(b) In the case of any Employee who, prior to the occurrence of such
Change in Control, was designated as eligible for an Award for
the Performance Period in which such Change in Control occurs and
whose employment is terminated by GPUI or any Affiliated Company
without "Cause" (as defined below) prior to the end of such
Performance Period, the amount of the Award to be made to such
Employee in respect of that Performance Period shall be the
amount determined under Section 4 and Section 5(a), multiplied by
a fraction, the numerator of which is the number of days that
have elapsed since the end of the immediately preceding
Performance Period through the date of the Employee's termination
and the denominator of which is 365.
A termination is for Cause if the Employee is convicted of a felony
or where the Employee (1) intentionally and continually failed
substantially to perform his or her reasonably assigned duties
(other than a failure resulting from the Employee's incapacity due
to physical or mental illness) which failure continued for a period
of at least 30 days after a written notice of demand for substantial
performance, signed by a duly authorized officer, has been delivered
to the Employee specifying the manner in which he or she has failed
substantially to perform, or (2) intentionally engaged in conduct
which is demonstrably and materially injurious to GPU, GPUI or any
Affiliated Company. No act, nor failure to act, on the Employee's
part, shall be considered "intentional" unless he or she has acted,
or failed to act, with a lack of good faith and with a lack of
reasonable belief that the Employee's action or failure to act was
in the best interest of GPU, GPUI and its Affiliated Companies.
6. Payment of Awards
The amount of the Award otherwise payable to an Employee for any
Performance Period, as reduced by the amount of all federal, state and
local taxes required by law to be withheld therefrom, shall be paid to the
Employee in a single lump sum cash payment as soon as practicable after
the close of such Period, except to the extent that the Employee (i) has
elected, under the applicable provisions of the GPU Companies Employee
Savings Plan for Nonbargaining Employees (the "Savings Plan"), to have any
part of such Award reduced, and to have an amount equal to such part
contributed to the Savings Plan on the Employee's behalf and/or (ii) has
elected, under the applicable provisions of the GPU Companies Deferred
Compensation Plan (the "Deferred Compensation Plan"), to defer any part of
such Award.
With respect to that part of any Award that is subject to an Employee's
election under the Savings Plan, an amount equal to such part of the Award
shall be contributed to the Savings Plan on behalf of the Employee; and
thereupon, the obligation of GPUI under this Plan with respect to payment
of such part of the Award shall be fully discharged. However, no such
contribution shall be made to the extent it would cause any limitation
applicable under the Savings Plan to be exceeded.
With respect to that part of any Award that is subject to an Employee's
election under the Deferred Compensation Plan, the obligation of GPUI
under this Plan with respect to payment of such part of the Award shall be
fully discharged upon the crediting of such part of the Award to the
Employee's account under the Deferred Compensation Plan in accordance with
the applicable provisions of such plan.
7. Administration
The Plan shall be administered by the President. In addition to the
responsibilities and powers assigned to the President elsewhere in the
Plan, the President shall have the authority, in his discretion, to
establish from time to time guidelines or regulations for the
administration of the Plan and to make all determinations necessary or
advisable for the administration of the Plan, and to interpret the Plan
and decide in his discretion all issues relating to the entitlement of any
person to benefits under the Plan.
<PAGE>
The President may delegate any ministerial or nondiscretionary function
pertaining to the administration of the Plan to any one or more Employees
or to any one or more employees of any Affiliated Company.
Notwithstanding the provisions of the preceding paragraph, the Board shall
have the exclusive authority to determine, in its discretion any issue
arising hereunder that relates to the President's entitlement to benefits
under the Plan.
All decisions, determinations or interpretations of the President, or of
the Board, under the Plan shall be final, conclusive and binding upon all
parties. Notwithstanding the foregoing, any determination made by the
President, or by the Board, after the occurrence of a Change in Control
shall be subject to judicial review under a "de novo" rather than a
deferential standard.
8. Amendment or Termination
The Board may, with prospective or retroactive effect, amend, suspend or
terminate the Plan or any portion thereof at any time; provided, however,
that no amendment, suspension or termination of the Plan shall deprive any
Employee of any rights with respect to any Award previously made under the
Plan without his or her written consent.
9. Rights of Employees
An Employee's rights and interests under the Plan shall be subject to the
following provisions:
(a) An Employee'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 Employee or his or her beneficiary.
(b) Neither the Plan nor any action taken hereunder shall be construed
as giving any Employee any right to be retained in the employment of
GPUI or any Affiliated Company.
<PAGE>
(c) No Employee shall have the right, by virtue of having received an
Award for any Performance Period, to be automatically eligible to
receive an Award for any subsequent Performance Period.
(d) No Award shall be considered as compensation under any employee
benefit plan of GPUI or any Affiliated Company, except as
specifically provided in any such plan.
10. Successor Corporation
The obligations of GPUI under the Plan shall be binding upon any successor
corporation or organization resulting from the merger, consolidation or
other reorganization of GPUI, or upon any successor corporation or
organization succeeding to substantially all of the assets and business of
GPUI.
<PAGE>
Table I
Employee's Individual
Performance Performance
Rating Rating Criteria Percentage
0 Employee has made no 0%
contribution to the Company
1- Employee has made a minimal 0%
contribution to the Company
1 Employee has made minimal 25%
contribution but is making
an effort to improve
1+ Employee has made some 50%
contribution to the Company
but has fallen short of
expectations
2- Employee has met most job 75%
expectations but has fallen
short in some areas
2 Employee has met job expectations 100%
2+ Employee has met all job 115%
expectations and has exceeded
expectations in some areas
3- Employee has met all job 130%
expectations and has exceeded
expectation in key performance
areas
3 Employee has exceeded job 150%
expectations in most performance
areas
3+ Employee has exceeded job 165%
expectations in most performance
areas and has taken over
significant additional responsi-
bilities during the year
4- Employee has exceeded job 180%
expectations in all performance
areas including new
responsibilities assumed during
the year
4 Employee has exceeded job 200%
expectations in all performance
areas including new responsi-
bilities assumed during the year
made significant contribution to
a special project
Exhibit D-1
Amendment to Agreement of
GPU, Inc. and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
-----------------------------------------------------
WHEREAS, GPU, Inc. ("GPU") and certain of its subsidiaries have
entered into the Agreement of GPU, Inc. and its Subsidiaries related to
Consolidated Federal Income Tax Returns, dated May 26, 1983 ("Tax Allocation
Agreement");
WHEREAS, subsequent to the execution of the Tax Allocation
Agreement, additional GPU subsidiary corporations have been organized; and
WHEREAS, it is appropriate and desirable that such additional
subsidiaries formally become parties to the Tax Allocation Agreement to evidence
their agreement to the allocation of consolidated federal income taxes as
therein provided.
NOW THEREFORE, in consideration of the provisions, and other good
and valuable consideration, receipt of which is hereby acknowledged, the
undersigned has hereby executed the Tax Allocation Agreement as of August 20,
1998.
ATTEST Penelec Preferred Capital II, Inc.
By:/s/ M. E. Gramlich /s/ T. G. Howson
------------------------ ---------------------------
M. E. Gramlich T. G. Howson
Assistant Secretary Vice President and Treasurer
<PAGE>
Exhibit D-1
Amendment to Agreement of
GPU, Inc. and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
---------------------------------------------------
WHEREAS, GPU, Inc. ("GPU") and certain of its subsidiaries have
entered into the Agreement of GPU, Inc. and its Subsidiaries related to
Consolidated Federal Income Tax Returns, dated May 26, 1983 ("Tax Allocation
Agreement");
WHEREAS, subsequent to the execution of the Tax Allocation
Agreement, additional GPU subsidiary corporations have been organized; and
WHEREAS, it is appropriate and desirable that such additional
subsidiaries formally become parties to the Tax Allocation Agreement to evidence
their agreement to the allocation of consolidated federal income taxes as
therein provided.
NOW THEREFORE, in consideration of the provisions, and other good
and valuable consideration, receipt of which is hereby acknowledged, the
undersigned has hereby executed the Tax Allocation Agreement as of September 1,
1998.
ATTEST Met-Ed Preferred Capital II, Inc.
By:/s/ M. E. Gramlich /s/ T. G. Howson
------------------------ ---------------------------
M. E. Gramlich T. G. Howson
Assistant Secretary Vice President and Treasurer
<PAGE>
Exhibit D-1
Amendment to Agreement of
GPU, Inc. and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
--------------------------------------------------
WHEREAS, GPU, Inc. ("GPU") and certain of its subsidiaries have
entered into the Agreement of GPU, Inc. and its Subsidiaries related to
Consolidated Federal Income Tax Returns, dated May 26, 1983 ("Tax Allocation
Agreement");
WHEREAS, subsequent to the execution of the Tax Allocation
Agreement, additional GPU subsidiary corporations have been organized; and
WHEREAS, it is appropriate and desirable that such additional
subsidiaries formally become parties to the Tax Allocation Agreement to evidence
their agreement to the allocation of consolidated federal income taxes as
therein provided.
NOW THEREFORE, in consideration of the provisions, and other good
and valuable consideration, receipt of which is hereby acknowledged, the
undersigned has hereby executed the Tax Allocation Agreement as of December 31,
1999.
ATTEST GPU Generation Services -
Pasco, Inc.
By:/s/ S. Barish-Straus /s/ F. Dominguez
---------------------- ---------------------------
S. Barish-Straus F. Dominguez
Secretary Vice President and Comptroller
<PAGE>
Exhibit D-1
Amendment to Agreement of
GPU, Inc. and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
---------------------------------------------------
WHEREAS, GPU, Inc. ("GPU") and certain of its subsidiaries have
entered into the Agreement of GPU, Inc. and its Subsidiaries related to
Consolidated Federal Income Tax Returns, dated May 26, 1983 ("Tax Allocation
Agreement");
WHEREAS, subsequent to the execution of the Tax Allocation
Agreement, additional GPU subsidiary corporations have been organized; and
WHEREAS, it is appropriate and desirable that such additional
subsidiaries formally become parties to the Tax Allocation Agreement to evidence
their agreement to the allocation of consolidated federal income taxes as
therein provided.
NOW THEREFORE, in consideration of the provisions, and other good
and valuable consideration, receipt of which is hereby acknowledged, the
undersigned has hereby executed the Tax Allocation Agreement as of December 31,
1999.
ATTEST GPU Generation Services -
Lake, Inc.
By:/s/ S. Barish-Straus /s/ F. Dominguez
---------------------- ---------------------------
S. Barish-Straus F. Dominguez
Secretary Vice President and Comptroller
<PAGE>
Exhibit D-1
Amendment to Agreement of
GPU, Inc. and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
--------------------------------------------------
WHEREAS, GPU, Inc. ("GPU") and certain of its subsidiaries have
entered into the Agreement of GPU, Inc. and its Subsidiaries related to
Consolidated Federal Income Tax Returns, dated May 26, 1983 ("Tax Allocation
Agreement");
WHEREAS, subsequent to the execution of the Tax Allocation
Agreement, additional GPU subsidiary corporations have been organized; and
WHEREAS, it is appropriate and desirable that such additional
subsidiaries formally become parties to the Tax Allocation Agreement to evidence
their agreement to the allocation of consolidated federal income taxes as
therein provided.
NOW THEREFORE, in consideration of the provisions, and other good
and valuable consideration, receipt of which is hereby acknowledged, the
undersigned has hereby executed the Tax Allocation Agreement as of December 31,
1999.
ATTEST VicGas Holdings, Inc.
By:/s/ P. E. Maricondo /s/ M. A. Hughes
---------------------- ---------------------------
P. E. Maricondo M. A. Hughes
Vice President and President
Comptroller
Exhibit E-1
VENTURE DISCLOSURES
-------------------
Fiber Optic System Lease Agreements
with Nonassociated Companies
----------------------------
Pursuant to the provisions contained in the Securities and Exchange
Commission's (SEC) Order dated August 2, 1994 for SEC File No. 70-7850, neither
Jersey Central Power & Light Company, Metropolitan Edison Company nor
Pennsylvania Electric Company entered into any transactions nor recognized any
revenues during the calendar year 1999 for activity related to the fiber optic
system lease agreements with nonassociated companies.
Exhibit E-2
VENTURE DISCLOSURES
-------------------
Services to Non-Affiliated Utilities
------------------------------------
Pursuant to the provisions contained in the Securities and Exchange
Commission's (SEC) Order dated November 5, 1996 for SEC File No. 70-8805,
neither Jersey Central Power & Light Company, Metropolitan Edison Company nor
Pennsylvania Electric Company entered into any transactions nor recognized any
revenues during the calendar year 1999 for services provided to non-affiliated
utilities.
Exhibit E-3
Form U-13-60
Mutual and Subsidiary Service Companies
Revised February 7, 1980
ANNUAL REPORT
FOR THE PERIOD
Beginning January 1, 1999 and Ending December 31, 1999
--------------------- --------------------
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
R. P. Lantzy, 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
DEPRECIATION AND AMORTIZATION Account 403 32
TAXES OTHER THAN INCOME TAXES Account 408 33
DONATIONS Account 426.1 34
OTHER DEDUCTIONS Account 426.5 35
NOTES TO STATEMENT OF INCOME Schedule XVIII 36
<PAGE>
3
LISTING OF INSTRUCTIONAL FILING REQUIREMENTS
- -------------------------------------------- Page
Number
- -------------------------------------------------------------------------------
Description of Reports or Statements
- -------------------------------------------------------------------------------
ORGANIZATION CHART 37
- ------------------
METHODS OF ALLOCATION 38
- ---------------------
ANNUAL STATEMENT OF COMPENSATION FOR USE 39
- ----------------------------------------
OF CAPITAL BILLED
- -----------------
EXHIBIT 40
- -------
NOTE: Dollar figures in this report are shown in thousands unless otherwise
noted.
<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) $106,777 $107,312
107 Construction work in progress (Schedule II) - -
------- -------
Total Property 106,777 107,312
108 Less accumulated provision for depreciation
and amortization of service company
property (Schedule III) 29,425 20,470
------- -------
Net Service Company Property 77,352 86,842
------- -------
INVESTMENTS
-----------
123 Investments in assoc. companies (Schedule IV) 54,229 63,373
124 Other investments (Schedule IV) 29,756 33,125
------- -------
Total Investments 83,985 96,498
------- -------
CURRENT AND ACCRUED ASSETS
--------------------------
131 Cash 12,273 4,589
134 Special deposits 12,937 11,643
135 Working funds - -
136 Temporary cash investments (Schedule IV) 6,682 20,846
141 Notes receivable 15,957 20,389
143 Accounts receivable 14,692 20,752
144 Accumulated provision for uncollectible
accounts (5,056) (5,012)
146 Accounts receivable from associate
companies (Schedule V) 7,407 24,392
152 Fuel stock expenses undistributed
(Schedule VI) 208 228
154 Materials and supplies 699 675
163 Stores expense undistributed (Schedule VII) - -
165 Prepayments 1,338 1,922
171 Interest Receivable 433 1,826
174 Miscellaneous current and accrued
assets (Schedule VIII) - 71,716
------- -------
Total Current and Accrued Assets 67,570 173,966
------- -------
DEFERRED DEBITS
---------------
181 Unamortized debt expense - -
184 Clearing accounts - -
186 Miscellaneous deferred debits (Schedule IX) 59,308 -
188 Research, development, or demonstration
expenditures (Schedule X) - -
190 Accumulated deferred income taxes 64,411 40,217
------- -------
Total Deferred Debits 123,719 40,217
------- -------
TOTAL ASSETS AND OTHER DEBITS $352,626 $397,523
======= =======
<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 $ 100
211 Miscellaneous paid-in-capital (Schedule XI) 127,966 144,466
215 Appropriated retained earnings (Schedule XI) - -
216 Unappropriated retained earnings (deficit)
(Schedule XI) 1,105 (11,622)
------- -------
Total Proprietary Capital 129,171 132,944
------- -------
LONG-TERM DEBT
223 Advances from assoc. companies (Schedule XII) - -
224 Other long-term debt (Schedule XII) - -
225 Unamortized premium on long-term debt - -
226 Unamortized discount on long-term debt-debit - -
------- -------
Total Long-term Debt - -
------- -------
CURRENT AND ACCRUED LIABILITIES
231 Notes payable - 11,600
232 Accounts payable 5,810 8,736
233 Notes payable to associate
companies (Schedule XIII) - -
234 Accounts payable to associate
companies (Schedule XIII) 1,769 19,365
236 Taxes accrued - -
237 Interest accrued - -
238 Dividends declared - -
241 Tax collections payable 115 -
242 Miscellaneous current and accrued
liabilities (Schedule XIII) 14,946 16,942
------- -------
Total Current and Accrued Liabilities 22,640 56,643
------- -------
DEFERRED CREDITS
253 Other deferred credits 174,855 198,646
255 Accumulated deferred investment tax credits - -
------- -------
Total Deferred Credits 174,855 198,646
------- -------
282 ACCUMULATED DEFERRED INCOME TAXES 25,960 9,290
---------------------------------
TOTAL LIABILITIES AND PROPRIETARY
CAPITAL $352,626 $397,523
======= =======
<PAGE>
6
<TABLE>
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
------------------------
For the Year Ended December 31, 1999
-----------------
<CAPTION>
- -------------------------------------------------------------------------------
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
- -------
<S> <C> <C> <C> <C> <C> <C>
301 ORGANIZATION
303 MISCELLANEOUS
INTANGIBLE PLANT
304 LAND & LAND RIGHTS $ 901 $ - $ - $ - $ 901
305 STRUCTURES AND
IMPROVEMENTS
306 LEASEHOLD
IMPROVEMENTS 840 18 - (315)1/ 543
-
307 EQUIPMENT 2/ 109 18 - - 127
-
308 OFFICE FURNITURE
AND EQUIPMENT 2,271 108 (16) - 2,363
309 AUTOMOBILES, OTHER
VEHICLES AND
RELATED GARAGE
EQUIPMENT 32 - - - 32
310 AIRCRAFT AND
AIRPORT EQUIPMENT
311 OTHER SERVICE
COMPANY PROPERTY 3/ 103,159 179 (527) 102,811
- ------- ------ ------- -------- -------
SUB-TOTAL 107,312 323 (16) (842) 106,777
------- ------ ------- -------- -------
107 CONSTRUCTION WORK
IN PROGRESS 4/ - - - - -
-
TOTAL $ 107,312 $ 323 $ (16) $ (842) $ 106,777
======= ======= ======= ======= =======
</TABLE>
1/ PROVIDE AN EXPLANATION OF THOSE CHANGES CONSIDERED MATERIAL:
-
REFURBISHMENT ALLOWANCE FROM LANDLORD
<PAGE>
7
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
------------------------
For the Year Ended December 31, 1999
-----------------
- -------------------------------------------------------------------------------
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:
- -
THE SERVICE COMPANY PROPERTY ACCOUNT REPRESENTS A 80 MEGAWATT COGENERATION
FACILITY LOCATED IN GEDDES, NEW YORK WHICH WAS PLACED INTO COMMERCIAL OPERATION
IN DECEMBER 1993. THE FACILITY SELLS SUBSTANTIALLY ALL OF ITS STEAM OUTPUT TO
CRUCIBLE SPECIALTY METALS FOR USE IN AN ADJACENT INDUSTRIAL FACILITY AND ITS
ELECTRICAL OUTPUT TO NIAGARA MOHAWK CORPORATION.
- -------------------------------------------------------------------------------
4/ DESCRIBE CONSTRUCTION WORK IN PROGRESS:
- -
N/A
<PAGE>
8
<TABLE>
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
------------------------
For the Year Ended December 31, 1999
-----------------
<CAPTION>
- -------------------------------------------------------------------------------
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
- -------
<S> <C> <C> <C> <C> <C> <C>
301 ORGANIZATION
303 MISCELLANEOUS
INTANGIBLE PLANT
304 LAND & LAND RIGHTS
305 STRUCTURES AND
IMPROVEMENTS
306 LEASEHOLD
IMPROVEMENTS $ 95 $ 40 $ - $ - $ 135
307 EQUIPMENT 89 15 - - 104
308 OFFICE FURNITURE
AND FIXTURES 1,428 240 - - 1,668
309 AUTOMOBILES, OTHER
VEHICLES AND
RELATED GARAGE
EQUIPMENT 16 4 - - 20
310 AIRCRAFT AND
AIRPORT EQUIPMENT
311 OTHER SERVICE
COMPANY PROPERTY 18,842 8,656 - - 27,498
$20,470 $ 8,955 $ - $ - $29,425
====== ===== ==== ==== ======
</TABLE>
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, 1999
-----------------
- -------------------------------------------------------------------------------
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 136 - TEMPORARY CASH INVESTMENTS
MARKETABLE SECURITIES $20,846 $ 6,682
====== ======
ACCOUNT 123 - INVESTMENT IN ASSOCIATE COMPANIES
PRIME ENERGY LIMITED PARTNERSHIP $11,234 $10,369
ONONDAGA COGENERATION LIMITED PARTNERSHIP 213 -
LAKE COGEN LIMITED PARTNERSHIP 9,024 2,066
PASCO COGEN LIMITED 15,128 14,980
SELKIRK CORPORATION PARTNERS, L.P. 9,040 7,758
Syracuse Orange Partners (180) -
Mid-Georgia Cogeneration Limited Partnership 18,914 19,056
------- -------
TOTAL $63,373 $54,229
======= =======
ACCOUNT 124 - OTHER INVESTMENTS
GPU SOLAR (INVESTMENT 50% OWNERSHIP) $ 166 $ 575
CO. OWNED LIFE INSURANCE -
CASH SURRENDER VALUE 93 99
BALLARD GENERATION SYSTEMS, INC. (EQUITY
INVESTMENT 10.65% OWNERSHIP) 14,030 13,400
CARRIED INTEREST - SYRACUSE ORANGE PARTNERS 1,125 -
INTANGIBLE ASSETS - NCP ACQUISITION 15,792 13,023
ENVIROTECH INVESTMENT FUND 1,822 2,659
BALLARD POWER SYSTEMS, INC. (WARRANTS TO
ACQUIRE 300,000 COMMON SHARES) 97 -
------ ------
TOTAL $33,125 $29,756
====== ======
<PAGE>
10
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- -------------------------------------------------------------------------------
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 $24,392 $7,407
------ -----
TOTAL $24,392 $7,407
====== =====
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, 1999
-----------------
- -------------------------------------------------------------------------------
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 $ - $ 208 $208
---- ----- -----
TOTAL $ - $ 208 $ 208
==== ===== =====
SUMMARY: ONONDAGA COGENERATION LIMITED PARTNERSHIP $ 208
<PAGE>
12
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
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, 1999
-----------------
- -------------------------------------------------------------------------------
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
PREPAYMENT FOR FUEL CELLS (1) $ 4,250 $ -
Swap Contract - Onondaga cogen (1) 62,395 -
SECURITY DEPOSITS - ONONDAGA COGEN (2) 5,071 -
TOTAL $71,716 -
====== ======
(1) Balance reclassed to account 186 in 1999.
(2) Balance reclassed to account 134 in 1999.
<PAGE>
14
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
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
PREPAYMENT FOR FUEL CELLS (1) $ - $ 4,250
Swap Contract - Onondaga cogen (1) - 55,058
------ ------
TOTAL $ - $59,308
====== ======
(1) Balances were shown in Account 174 in 1998.
<PAGE>
15
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
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
<PAGE>
16
<TABLE>
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- ------------------------------------------------------------------------------------------------------------------------------------
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
- ------------------------------------------------------------------------------------------------------------------------------------
201 COMMON STOCK ISSUED 100 $1 000* 100 $100, 000*
- ------------------------------------------------------------------------------------------------------------------------------------
INSTRUCTIONS: Classify amounts in each account with brief explanation, disclosing the general nature of
transactions which gave rise to the reported amounts.
- ------------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION AMOUNT
- ------------------------------------------------------------------------------------------------------------------------------------
ACCOUNT 211 - MISCELLANEOUS PAID-IN CAPITAL $127,966
ACCOUNT 215 - APPROPRIATED RETAINED EARNINGS 0
--------
TOTAL $127,966
========
- ------------------------------------------------------------------------------------------------------------------------------------
INSTRUCTIONS: Give particulars concerning net income or (loss) during the year, distinguishing between
compensation for the use of capital owed or net loss remaining from servicing nonassociates per
the General Instructions of the Uniform System of Accounts. For dividends paid during the year
in cash or otherwise, provide rate percentage, amount of dividend, date declared and date paid.
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
BALANCE AT NET INCOME CUMULATIVE UNREALIZED BALANCE AT
DESCRIPTION BEGINNING OR TRANSLATION GAIN ON CLOSE OF
OF YEAR (LOSS) ADJUSTMENT MES YEAR
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ACCOUNT 216 - UNAPPROPRIATED RETAINED EARNINGS $(14,520) $11,337 $ 7 $ - $(3,176)
Unrealized gain on Marketable
Equity Securities (MES) 2,898 - - 1,383 4,281
------- ------ --- ------- -----
TOTAL $(11,622) $11,337 $ 7 $ 1,383 $ 1,105
======== ======= ==== ======== =======
</TABLE>
* In Whole Dollars
<PAGE>
17
<TABLE>
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- ------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE XII- LONG-TERM DEBT
- ------------------------------------------------------------------------------------------------------------------------------------
INSTRUCTIONS: Advances from associate companies should be reported
separately for advances on notes, and advances on open account.
Names of associate companies from which advances were received
shall be shown under the class and series of obligation column.
For Account 224 - Other long term debt provide the name of
creditor company or organization, terms of the obligation, date
of maturity, interest rate, and the amount authorized and
outstanding.
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
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
- ------------------------------------------------------------------------------------------------------------------------------------
ACCOUNT 223 - ADVANCES FROM ASSOCIATE
COMPANIES: NONE
ACCOUNT 224 - OTHER LONG-TERM DEBT: NONE
</TABLE>
1/ GIVE AN EXPLANATION OF DEDUCTIONS:
<PAGE>
18
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
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
BROOKLYN ENERGY LP $ - $ 9
GPU SERVICE CORPORATION 986 1,759
GPU ELECTRIC 18,379 -
MID-GEORGIA - 1
------ ------
TOTAL $19,365 $ 1,769
====== ======
ACCOUNT 242 - MISCELLANEOUS CURRENT AND ACCRUED
LIABILITIES
ACCRUALS - EMPLOYEE BONUS 1,283 1,008
- VACATION 810 285
- LEGAL FEES 1,345 580
- CONSULTING 202 175
- ACCRUED MANAGEMENT FEES - 66
- ACCRUED OVERHAUL 8,589 10,310
- OTHER 4,555 2,132 A
- DEFERRED LEASE PAYABLE - 156
- ACCRUED AUDIT FEES 158 206
- HEALTH SPENDING ACCT W/H - 20
- 5 ITEMS LESS THAN $10,000 - 8
------ ------
TOTAL $16,942 $14,946
====== ======
A OCLP 476 1,258
EI SERVICES, INC. 39 120
LAKE 28 25
EI SELKIRK 53 92
GPUI 3,910 381
EI FUELS 35 34
GEDDES 209
NCP HOUSTON POWER 10
OTHER 14 3
----- -------
$4,555 $ 2,132
===== =======
<PAGE>
19
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
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, 1999
-----------------
- --------------------------------------------------------------------------------
SCHEDULE XV
-----------
STATEMENT OF INCOME
-------------------
- --------------------------------------------------------------------------------
ACCOUNT DESCRIPTION CURRENT YEAR PRIOR YEAR
- --------------------------------------------------------------------------------
INCOME
- ------
457 Services rendered to associate companies $ 72,100 $ 72,256
458 Services rendered to nonassociate companies - -
421 Equity earnings (losses) 10,105 7,523
421 Interest and dividend income 2,496 3,489
421 Gain on sale of assets 14,781 9,146
------- -------
Total Income 99,482 92,414
------- --------
EXPENSE
920 Salaries and wages 2,593 7,251
921 Office supplies and expenses 150 137
922 Administrative expense transferred
credit - -
923 Outside services employed 3,551 7,593
924 Property insurance 80 149
925 Injuries and damages - -
926 Employee pensions and benefits 2,234 2,518
928 Regulatory commission expense - -
930.1 General advertising expenses - 5
930.2 Miscellaneous general expenses 63,318 52,683
931 Rents 773 759
932 Maintenance of structures and equipment - -
403 Depreciation and amortization expense 9,401 4,560
408 Taxes other than income taxes 328 492
409 Income taxes 15,382 (3,991)
410 Provision for deferred income taxes 13,094
411 Provision for deferred income taxes -
credit (5,904) -
411.5 Investment tax credit - -
426.1 Donations 29 7
426.5 Other deductions (4,834) (5,213)
427 Interest on long-term debt - 748
430 Interest on debt to associate
companies - -
431 Other interest expense 1,044 -
------- -------
Total Expense 88,145 80,792
------- -------
Net Income or (Loss) $ 11,337 $ 11,622
======= =======
<PAGE>
21
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
ANALYSIS OF BILLING
-------------------
ASSOCIATE COMPANIES
ACCOUNT 457
DIRECT INDIRECT COMPENSATION
NAME OF ASSOCIATE COMPANY COSTS FOR USE AMOUNT TOTAL
CHARGED CHARGE OF CAPITAL BILLED
--------------------------------------------
457-1 457-2 457-3
- --------------------------------------------------------------------------------
PRIME ENERGY LIMITED PARTNERSHIP $ 1,803 $ - $ - $ 1,803
CAMCHINO ENERGY CORPORATION 291 - - 291
ONONDAGA COGENERATION LIMITED
PARTNERSHIP 21,862 - - 21,862
ELMWOOD ENERGY CORPORATION 85 - - 85
LAKE COGEN LIMITED 44,681 - - 44,681
PROJECT ORANGE ASSOCIATES 343 - - 343
MID GEORGIA COGEN 612 - - 612
PASCO COGEN LIMITED 196 - - 196
EI SERVICES, INC. 49 - - 49
NCP ENERGY, INC. 1,371 - - 1,371
EI FUELS, INC. 783 - - 783
GPU INTERNATIONAL, INC. 24 - - 24
------ --- --- ------
TOTAL $72,100 $ - $ - $72,100
====== === === ======
<PAGE>
<TABLE>
22
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
------------------------
For the Year Ended December 31, 1999
-----------------
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
ANALYSIS OF BILLING
-------------------
NONASSOCIATE COMPANIES
ACCOUNT 458
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
DIRECT INDIRECT COMPENSATION EXCESS
COSTS COSTS FOR USE TOTAL OR TOTAL
NAME OF NONASSOCIATE COMPANY CHARGED CHARGED OF CAPITAL COST DEFICIENCY AMOUNT
------- ------- ---------- ----------
458-1 458-2 458-3 458-4 BILLED
- ------------------------------------------------------------------------------------------------------------------------------------
NOT APPLICABLE
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
INSTRUCTION: Provide a brief description of the services rendered to each
nonassociated company:
<PAGE>
23
<TABLE>
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
------------------------
For the Year Ended December 31, 1999
-----------------
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
</TABLE>
- --------------------------------------------------------------------------------
INSTRUCTION: Total cost of service will equal for associate and nonassociate
companies the total amount billed under their separate analysis of
billing schedules.
- --------------------------------------------------------------------------------
TOTAL EXPENSES =
COMPENSATION FOR USE OF EQUITY CAPITAL =
430 INTEREST ON DEBT TO ASSOCIATE
COMPANIES =
TOTAL COST OF SERVICE =
------------------------------
<PAGE>
24
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
------------------------
For the Year Ended December 31, 1999
-----------------
SCHEDULE XVII
-------------
SCHEDULE OF EXPENSE DISTRIBUTION
--------------------------------
BY
DEPARTMENT OR SERVICE FUNCTION
- --------------------------------------------------------------------------------
DEPARTMENT OR SERVICE FUNCTION
------------------------------
TOTAL OFFICE OF
D E S C R I P T I O N O F I T E M S AMOUNT OVERHEAD PRESIDENT
- -------------------------------------------------------------------------------
920 SALARIES AND WAGES
921 OFFICE SUPPLIES AND EXPENSES
922 ADMINISTRATIVE EXPENSE TRANSFERRED -
CREDIT
923 OUTSIDE SERVICES EMPLOYED
924 PROPERTY INSURANCE
925 INJURIES AND DAMAGES
926 EMPLOYEE PENSIONS AND BENEFITS NOT APPLICABLE
928 REGULATORY COMMISSION EXPENSE
930.1 GENERAL ADVERTISING EXPENSE
930.2 MISCELLANEOUS GENERAL EXPENSES
931 RENTS
932 MAINTENANCE OF STRUCTURES AND
EQUIPMENT
403 DEPRECIATION AND AMORTIZATION
EXPENSE
408 TAXES OTHER THAN INCOME TAXES
409 INCOME TAXES
410 PROVISION FOR DEFERRED INCOME TAXES
411 PROVISION FOR DEFERRED INCOME TAXES
- CREDIT
411.5 INVESTMENT TAX CREDIT
426.1 DONATIONS
426.5 OTHER DEDUCTIONS
427 INTEREST ON LONG-TERM DEBT
430 INTEREST ON DEBT TO ASSOCIATE
COMPANIES
431 OTHER INTEREST EXPENSE
- --------------------------------------------
INSTRUCTION: Indicate each department or
service function. (See Instruc-
tion 01-3 General Structure of
Accounting System: Uniform
System Account)
- --------------------------------------------
- --------------------------------------------------------------------------------
TOTAL EXPENSES =
- -----------------------------------
<PAGE>
25
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
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 NOT APPLICABLE
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, 1999
-----------------
- --------------------------------------------------------------------------------
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 ND OF
or service function. AMOUNT EXPENSE ASSOCIATES ASSOCIATES YEAR
- --------------------------------------------------------------------------------
GPU International, Inc. $ 5,660 $ 5,660 $ - $ - 53
------- ------- ------- ----- -----
TOTAL $ 5,660 $ 5,660 $ - $ - 53
======= ======= ====== ===== =====
<PAGE>
27
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
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.
ACCOUNTING SERVICES $ 50
GENERAL & ADMINISTRATIVE EXPENSES 2,322
CONSULTING EXPENSES 1,190
LEGAL EXPENSES (154)
OTHER DEVELOPMENT FEES 143
-------
TOTAL $ 3,551
=======
<PAGE>
28
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
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 $ 596
PENSION PLANS 85
EMPLOYEE SAVINGS PLAN 221
VACATION ACCRUAL (512)
DEFERRED COMPENSATION 188
BONUS 789
FICA 409
SUI 28
EDUCATIONAL ASSISTANCE 79
OTHER PAYROLL EXPENSES 351
-------
TOTAL $ 2,234
=======
<PAGE>
29
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
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
<PAGE>
30
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
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
FUEL EXPENSE $31,541
OPERATING EXPENSES - LAKE AND ONONDAGA 29,686
EMPLOYEE TRAINING EXPENSE 626
FINANCING FEES 240
TEMPORARY HELP 105
TELEPHONE 87
EMPLOYEE RECRUITING AND RELOCATION EXPENSE 82
EQUIPMENT AND FURNITURE RENTAL 78
SEMINARS AND TRAINING 66
POSTAGE 49
BANK SERVICE CHARGE 45
PUBLICATIONS 42
MEETINGS AND CONFERENCES 21
MISCELLANEOUS EXPENSES 650
-------
TOTAL $63,318
======
<PAGE>
31
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
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 $ 773
TOTAL $ 773
======
<PAGE>
32
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
DEPRECIATION AND AMORTIZATION EXPENSE
-------------------------------------
ACCOUNT 403
-----------
- --------------------------------------------------------------------------------
ONONDAGA COGENERATION LIMITED PARTNERSHIP $ 8,738
LAKE COGEN LIMITED 11
NCP ENERGY, INC. 61
NCP LAKE POWER, INC. 101
NCP DADE, INC. 71
OTHER 419
------
TOTAL $ 9,401
======
<PAGE>
33
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
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
---------------------
$ 0
Sub Total 0
------
(2) OTHER THAN U.S. GOVERNMENT TAXES
--------------------------------
NEW YORK GROSS RECEIPTS TAXES 314
SALES/USE TAX 14
------
Sub Total 328
------
TOTAL $ 328
======
<PAGE>
34
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------
GPU Foundation Education $ 20
United Way of Morris County Contribution to annual 4
campaign
8 Others (Under $3,000) 5
----
TOTAL $ 29
====
<PAGE>
35
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
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 LOSS $ (1)
INVESTMENT VALUATION ALLOWANCE (LAKE) 6,500
AMORTIZATION OF DEFERRED GAIN (11,333)
--------
Total $ (4,834)
========
<PAGE>
36
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
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>
37
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
For the Year Ended December 31, 1999
-----------------
- --------------------------------------------------------------------------------
ORGANIZATION CHART
------------------
- --------------------------------------------------------------------------------
------------------------------------------------------
- BOARD OF DIRECTORS -
- -
- Chairman -
- -
------------------------------------------------------
- -
- President & CEO -
- -
----------------------------------------------------
- -
- Legal Support -
- -
---------------------------------------------------
- -
- Vice President - Business Development -
- -
---------------------------------------------------
- -
- Vice President - Business Mgt. -
- -
---------------------------------------------------
- -
- Vice President & Comptroller -
- -
---------------------------------------------------
- -
- Director - Business Ops. and Technology -
- -
---------------------------------------------------
- -
- Director Midlands Projects -
- -
---------------------------------------------------
<PAGE>
38
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
-----------------------
- --------------------------------------------------------------------------------
METHODS OF ALLOCATION
---------------------
- --------------------------------------------------------------------------------
Not Applicable
<PAGE>
39
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
------------------------
ANNUAL STATEMENT OF COMPENSATION FOR USE OF CAPITAL BILLED
----------------------------------------------------------
NONE
<PAGE>
40
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
------------------------
- --------------------------------------------------------------------------------
EXHIBIT
-------
- --------------------------------------------------------------------------------
The following information is provided in accordance with an Amendment No. 3 to
the GPU International (GPUI) Application on Form U-1 dated December 13, 1996
(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 the previous year.
- -------------------------------------------
GPUI has committed to invest $23.25 million in Ballard Generation Systems, Inc.
(BGS) by mid-year 2000 for (1) up to a 13% equity interest in BGS; (2) two 250
KW fuel cell power plants for field trials; (3) non-transferable warrants to
purchase 300,000 common shares in BPS at a price of Canadian $9.15 per share;
and (4) an option to acquire 425,000 shares of BGS preferred stock.
Investments to date are:
1996 $ 6.00 million
1997 9.25 million
1998 4.00 million
-----
$19.25 million
(b) A general description of the activities of the Enterprise in the previous
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year.
- -----
BGS develops, manufactures and markets stationary fuel cell power plants
worldwide. The Ballard Fuel Cell is a proprietary zero-emission engine that
converts natural gas, methanol, or hydrogen fuel into electricity without
combustion. Through strategic alliances with global leaders in targeted markets,
BPS combines technology leadership in fuel cells and fuel cell systems with the
product engineering, manufacturing, marketing, distribution and service
capabilities of strategic partners.
(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 the previous year.
---------------------------------------------------------------------
There were $4.2 million in revenues and $17.6 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/ R. P. Lantzy
----------------------------------------
(Signature of Signing Officer)
R. P. Lantzy, President and CEO
-------------------------------------------
(Printed Name and Title of Signing Officer)
Date: 4/30/00
------------
ITEM 6. OFFICERS AND DIRECTORS Exhibit F-1
Part III.
The following pages consist of disclosures made in GPU, Inc.'s 2000
Proxy Statement as well as disclosures made in GPU, Inc.'s 1999 Annual Report on
Form 10-K.
GPU, Inc.
---------
REMUNERATION OF DIRECTORS
Non-employee directors receive an annual retainer of $20,000, a fee of
$1,000 for each Board meeting attended and a fee of $1,000 for each Committee
meeting attended. Committee Chairmen receive an additional retainer of $3,000
per year.
Admiral Trost also received approximately $68,000 in 1999 for serving
as a member of the Board of Directors of GPUN, a direct subsidiary of GPU, and
chairman of that Board's Nuclear Safety and Compliance Committee.
RELATED TRANSACTIONS
GPU and its subsidiaries have business arrangements with organizations
with which certain GPU directors and certain owners of 5% or more of GPU stock
are affiliated. These arrangements are conducted in the ordinary course of
business, at arms-length, and on standard commercial terms and conditions.
DEFERRED STOCK UNIT PLAN FOR OUTSIDE DIRECTORS
Under the Deferred Stock Unit Plan for Outside Directors of GPU, Inc.
("Deferred Stock Unit Plan"), each director who is not an employee of the
Corporation or any of its subsidiaries (an "Outside Director") receives an
annual grant of units representing shares of GPU Common Stock equal in value at
the time of grant to one and one-half times the value of the director's annual
cash retainer in effect at the time of grant. Each unit granted under the
Deferred Stock Unit Plan represents one share of GPU Common Stock. Dividend
equivalents paid on outstanding units are invested in additional units.
Outside Directors who have served at least 54 months will receive
payment of their deferred units upon their retirement from the Board. Payment of
units will be in the form of GPU Common Stock, or in cash if authorized by the
Personnel, Compensation and Nominating Committee. As of December 31, 1999, all
outside directors except Messrs. Townsend and Wolfe had completed 54 months of
service.
1
<PAGE>
RETIREMENT PLAN FOR OUTSIDE DIRECTORS
Under the Retirement Plan for Outside Directors of GPU, Inc.
("Retirement Plan"), as amended, an individual who completed 54 months of
service as of June 30, 1997 as a non-employee director is entitled to receive
retirement benefits equal to the product of (A) the number of months of service
completed and (B) the monthly compensation paid to the director at the date of
retirement. Benefits under the Retirement Plan are payable to the directors (or,
in the event of death, to designated beneficiaries) at their election in a lump
sum payment or in monthly installments of 1/12 of the sum of (x) the then annual
retainer paid at time of retirement plus (y) the cash value of the award under
the Restricted Stock Plan for Outside Directors for the year preceding
retirement, over a period equal to the director's service as of June 30, 1997,
unless otherwise directed by the Personnel, Compensation and Nominating
Committee, commencing at the later of age 60 or upon retirement. Service
following June 30, 1997 will be applied toward the 54-month vesting requirement
but will not increase the amount of benefits. No individual who first becomes an
Outside Director on or after July 1, 1997 will be entitled to receive any
benefits under the Retirement Plan.
As of December 31, 1999, the following Outside Directors were vested in
the Retirement Plan and are entitled to receive retirement benefits equal to the
number of months of service completed at June 30, 1997:
Months of Service
Director as of June 30, 1997
-------- -------------------
Theodore H. Black 112
Thomas B. Hagen 93
Henry F. Henderson, Jr. 101
John M. Pietruski 101
Catherine A. Rein 101
Carlisle A. H. Trost 78
Patricia K. Woolf 167
RESTRICTED STOCK PLAN FOR OUTSIDE DIRECTORS
Under the GPU, Inc. Restricted Stock Plan for Outside Directors
("Directors Plan"), each Outside Director is paid a portion of his or her annual
compensation in the form of 300 shares of GPU Common Stock.
A total of 40,000 shares of GPU Common Stock (subject to adjustment for
stock dividends, stock splits, recapitalizations and other specified events) has
been authorized for issuance under the Directors Plan. Any shares awarded which
are forfeited as provided by the Directors Plan will again be available for
issuance.
Shares of GPU Common Stock are awarded to Outside Directors on the
condition that the director serves or has served as an Outside Director until
(i) death or disability, (ii) retirement not earlier than the first day of the
month following the director's 72nd birthday, (iii) resignation or retirement
before the first day of the month following the director's 72nd
2
<PAGE>
birthday with the consent of the Board, which is defined in the Directors Plan
to mean approval thereof by at least 80% of the directors other than the
affected director or (iv) failure to be re-elected to the Board after being duly
nominated. Termination of service for any other reason, including any
involuntary termination effected by action or inaction of the Board, other than
that following a change in control (as defined) of GPU, will result in
forfeiture of all shares awarded.
Until termination of service, an Outside Director may not dispose of
any shares of GPU Common Stock awarded under the Directors Plan, but has all
other rights of a shareholder with respect to such shares, including voting
rights and the right to receive all cash dividends paid with respect to awarded
shares.
ESTATE ENHANCEMENT PROGRAM
The Corporation has adopted an estate enhancement program for the
benefit of outside directors of the Corporation and its subsidiaries and
executive officers of GPU. Under this program, an outside director or GPU
executive officer may, with approval of the Personnel, Compensation and
Nominating Committee, elect to enter into a split dollar life insurance
arrangement with the Corporation and forego a specified amount of payments to
which he or she is then entitled to receive in the future under the
Corporation's deferred compensation plans. If so elected, the Corporation will
pay the premiums on a split dollar life insurance policy on the life of the
director (or on the lives of the director and his or her spouse) or executive
officer (or on the lives of the executive officer and his or her spouse) up to
the amount of deferred compensation the director or executive officer has
elected to forego. As of March 21, 2000, none of the outside directors or GPU
executive officers was participating in this program. The Corporation expects
that it will not incur any significant additional costs as a result of entering
into split dollar insurance arrangements under this program.
3
<PAGE>
<TABLE>
SECURITY OWNERSHIP
SECURITY OWNERSHIP OF DIRECTORS, NOMINEES AND EXECUTIVE OFFICERS
The following table sets forth, as of February 1, 2000, the beneficial
ownership of equity securities (and stock-equivalent units) of the GPU Companies
of each of the GPU directors, nominees for director and each of the executive
officers named in the Summary Compensation Table, and of all directors and
executive officers of GPU as a group. The shares of Common Stock owned by all
directors and executive officers as a group constitute less than 1% of the total
shares outstanding.
<CAPTION>
Amount and Nature of Beneficial Ownership
-----------------------------------------
Shares (1) Stock-Equivalent
Name Title of Security Direct Indirect Units
---- ----------------- -------- -------- -----------------
<S> <C> <C> <C> <C>
Theodore H. Black GPU Common Stock 9,246 2,552 (3)
T. Gary Broughton GPU Common Stock 1,282 16,464 (2)
Fred D. Hafer GPU Common Stock 12,421 154 34,547 (2)
Thomas B. Hagen GPU Common Stock 13,034 2,552 (3)
Henry F. Henderson, Jr. GPU Common Stock 4,701 1,200 2,552 (3)
Ira H. Jolles GPU Common Stock 12,621 18,937 (2)
Bruce L. Levy GPU Common Stock 4,954 16,519 (2)
John M. Pietruski GPU Common Stock 5,200 2,552 (3)
Catherine A. Rein GPU Common Stock 4,401 2,552 (3)
Bryan S. Townsend GPU Common Stock 1,637 2,552 (3)
Carlisle A. H. Trost GPU Common Stock 3,944 2,552 (3)
Robert L. Wise GPU Common Stock 4,111 23,370 (2)
Kenneth L. Wolfe GPU Common Stock 1,600 0
Patricia K. Woolf GPU Common Stock 4,993 2,552 (3)
All GPU Directors and
Executive Officers
as a Group GPU Common Stock 91,012 2,179 151,417
- -------------------
</TABLE>
(1) The number of shares owned and the nature of such ownership, not being
within the knowledge of GPU, have been furnished by each individual.
(2) Restricted units, which do not have voting rights, represent rights
(subject to vesting) to receive shares of Common Stock under the 1990
Stock Plan for Employees of GPU, Inc. and Subsidiaries (the "1990 Stock
Plan"). These amounts also include restricted units which have vested
under the 1990 Stock Plan, but which were deferred pursuant to that
Plan by the following officers: Messrs. Wise - 6,765 units; Levy - 655
units; and Broughton - 2,722 units. See footnote 2 to the Summary
Compensation Table on page 9.
(3) Each Outside Director receives an annual grant of deferred stock units
which represents an equivalent number of shares of GPU Common Stock.
Outside Directors who have served at least 54 months will receive
payment of their deferred units upon retirement. See Deferred Stock
Unit Plan for Outside Directors on page 1.
4
<PAGE>
EXECUTIVE COMPENSATION
PERSONNEL, COMPENSATION AND NOMINATING COMMITTEE REPORT
In 1999, the Corporation continued to maintain a three part program for
executive compensation. The program consists of three interrelated components,
the Base Salary Program, the annual Incentive Compensation Plan and the
long-term stock-based program established in the 1990 Stock Plan. While each
component serves a distinct purpose, together they provide a balanced program
that supports the Corporation's specific business objectives. In recent years,
the program has increasingly made use of stock-based compensation to ensure the
proper emphasis on shareholder value.
Compensation Philosophy and Market Comparisons
The Corporation's compensation philosophy, unchanged in 1999, is to
provide an executive compensation program that allows the Corporation and its
individual business units to attract and retain the services of skilled,
experienced executives, to focus the attention of these executives on the
achievement of specific objectives that will drive the Corporation's success,
and to reward these executives to the extent these objectives are achieved.
The amount of compensation delivered each year varies based on business
results and changes in shareholder value as the major portion of compensation is
delivered through the two variable pay components. The program is designed,
however, to deliver pay approximately at the median of the chosen competitive
market when business objectives are achieved. When targeted business objectives
are exceeded, total pay levels should be above median and, if objectives are not
achieved, total pay should be below median.
In identifying the competitive market for executives, the Corporation
focuses primarily on companies within the industry, particularly those of
comparable size and complexity. These companies include all of the companies in
the S&P Electric Utility Index shown on page 8 for which data are available. To
a lesser extent, the Corporation also considers companies not included in the
Index because it may need to compete in a broader market for executive talent.
To ensure an objective analysis, the Committee is assisted by a major national
compensation consulting firm in developing appropriate comparisons, defining
median pay levels and assessing the overall competitiveness of the program.
Section 162(m) of the Internal Revenue Code of 1986 generally limits the amount
allowable as a tax deduction for compensation paid to the chief executive
officer and each of the other highest paid officers of any publicly held
corporation to $1 million per year for each such officer. Although the Committee
considers the effect of Section 162(m) in connection with the Corporation's
executive compensation program, the Committee considers it important to retain
the flexibility to design compensation programs it believes are in the best
interests of the Corporation and its shareholders, even though the expense may
not be fully deductible. The Committee continues to monitor the potential impact
of Section 162(m) and considers modifications to the executive compensation
program with this impact in mind.
5
<PAGE>
Base Salary Program
The Base Salary Program provides stable, ongoing compensation. Salaries
of individual executives, including Mr. Hafer, reflect competitive market data
as well as the experience and sustained performance of the executive. Salaries
are reviewed each year by the Committee to determine if any adjustments are
needed. The variable pay components of the overall program are considered the
most significant and, consequently, the Committee approved base salary increases
in 1999 only if an increase was necessary to maintain an appropriate competitive
position or if the executive assumed additional responsibilities.
Incentive Compensation Plan
The Incentive Compensation Plan is the Corporation's annual incentive
program for its executive officers and is designed to compensate the executive
officers based on the achievement of identified short-term business objectives
that are intended to support the Corporation's overall strategy and drive
increases in shareholder value.
As in previous years, the Incentive Compensation Plan in 1999
emphasized financial results. Awards to individual executives are based on the
achievement of objectives set for the Corporation and, in the cases of Messrs.
Wise and Broughton, for the specific GPU company to which the executive is
assigned, GPU Generation, Inc. in the case of Mr. Wise and GPUN in the case of
Mr. Broughton. Each executive's personal performance and contribution, assessed
by the Committee and the Board, are also factors in determining awards.
In 1999, the objectives for the Corporation were based on its return on
equity and its earnings. The "earnings test" ensures that non-financial measures
do not generate inappropriate total awards. Both the Corporation's return on
equity objective and earnings objective were achieved at levels above those
targeted.
Objectives at the various GPU companies included earnings and other
financial objectives, efficiency and cost management, safety, power production,
business development and acquisitions, and internal and operational performance.
Most of these objectives were achieved at or above the targeted levels.
Incentive Compensation Award for Mr. Hafer
In 1999, Mr. Hafer's Incentive Compensation Award was based 70% on the
Corporation's achievement of return on equity objectives which was well above
the targeted level. His award was also based on the Corporation's above-target
performance in nuclear safety and improvements in the internal functioning of
the organization through multiple projects focused on organizational design and
employee development. However, the Corporation's achievements with respect to on
certain strategic initiatives were not at expected levels.
6
<PAGE>
The 1990 Stock Plan
Long-term incentives for the Corporation's executives are provided via
the 1990 Stock Plan which was approved by shareholders and allows the Committee
and the Board to grant a variety of stock-based incentive awards. Compensation
opportunities provided under the Plan are directly linked to shareholder value.
Awards in 1999 were in the form of both restricted performance units and
non-qualified stock options.
Awards of restricted performance units and stock options to individual
executives are based on a determination of levels needed to maintain competitive
total compensation as well as on the Committee's and the Board's assessment of
the performance and contribution of the individual executive. Because the value
of both the units and stock options is linked directly to the value of the
Corporation's stock, these awards can provide compensation above or below the
targeted competitive median based on changes in shareholder value. Consideration
is also given to the executives' ownership levels in the Corporation.
Awards for Mr. Hafer
The 1999 awards of performance units and stock options to Mr. Hafer
reflect the factors outlined above as well as his unique role in guiding the
Corporation. The terms and conditions of his awards are the same as those
described for other executives.
Restricted Performance Units
Restricted performance units give executives the right to receive
shares of the Corporation's stock (or cash at the discretion of the Committee)
if specific performance measures are achieved. Each executive who receives an
award is granted a specific number of units. Dividend equivalents are paid on
these units and reinvested in additional units. The actual number of units that
will vest and be paid to the executive is determined at the end of the
performance period based on the achievement of the applicable performance
measures.
The performance measure included in the units granted to executives in
1999 is the Corporation's total shareholder return compared to the total return
of companies in the S&P Electric Utility Index. The percentile ranking of the
Corporation's total return among Index Companies is calculated quarterly over
the five-year performance period and averaged. The average ranking determines
how many shares of the Corporation's stock, if any, the executive will receive
at the end of the performance period. If the Corporation's total return is at
the 55th percentile of the Index companies, all of the originally awarded units
plus reinvested dividend equivalents will vest. If total return is higher than
the 75th percentile, additional units will vest up to a maximum of 200 percent.
If total return is lower, fewer units will vest. No units will vest if total
return is below the 40th percentile.
Stock Options
All stock options granted in 1999 have an exercise price equal to the
fair market value of the Corporation's stock on the date of grant and will
become exercisable over a three-year period. The options have a ten-year term.
7
<PAGE>
Stock Ownership Guidelines
Stock ownership guidelines for officers of the Corporation and its
subsidiaries were first implemented in 1998. Officers are expected to meet their
targeted ownership levels, expressed as a percent of base salary, within three
to five years of the implementation of the guidelines. Ownership levels are
calculated by including shares directly owned, vested and deferred restricted
performance units, and exercisable stock options.
Members of the Personnel, Compensation
and Nominating Committee
Thomas H. Hagen
John M. Pietruski
Carlisle A. H. Trost
Patricia K. Woolf
COMPARISON OF FIVE-YEAR CUMULATIVE TOTAL RETURN
The following graph compares the five-year cumulative total return,
including reinvested dividends, on GPU Common Stock, with the Standard & Poor's
500 Stock Index (the "S&P 500 Index") and the S&P Electric Utility Index:
[Tabular representation of Performance Graph is set forth below]
Amount
Invested
1/1/95* 1995 1996 1997 1998 1999
-------- ---- ---- ---- ---- ----
GPU $100 $138 $145 $192 $212 $151
S&P 500 100 138 169 226 290 351
S&P Electric Utility 100 131 131 165 191 154
* Assumes $100 invested in GPU Common Stock, S&P 500 Index and S&P Electric
Utility Index. Cumulative Total Return includes reinvestment of dividends.
REMUNERATION OF EXECUTIVE OFFICERS
The following tables present compensation information from the past
three years for the Chief Executive Officer and the four other most highly
compensated executive officers ("Named Executive Officers").
8
<PAGE>
Summary Compensation Table
<TABLE>
Annual Compensation Long-Term Compensation
------------------- ----------------------
Awards Payouts
------ -------
<CAPTION>
Other Securities
Name and Annual Underlying LTIP All Other
Principal Compensa- Options Payouts Compensa-
Position Year Salary($) Bonus($) tion($)(1) Granted(#) ($)(2) tion($)
- ------------- ---- --------- --------- ---------- ----------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Fred D. Hafer 1999 $685,288 $660,000 $3,129 30,000 $62,923 $136,454(3)
Chairman, President 1998 613,077 375,000 1,805 95,000 63,007 116,823
& Chief Executive 1997 526,923 275,000 2,123 -- 66,950 106,291
Officer, GPU
Ira H. Jolles 1999 360,000 315,000 3,693 6,000 82,522 67,922(3)
Sr. Vice President 1998 353,085 126,000 2,139 21,000 82,973 59,090
& General Counsel, 1997 331,000 100,000 2,455 -- 86,012 55,107
GPU
Robert L. Wise 1999 293,000 340,000 -- 5,000 66,224 108,057(3)
President, JCP&L, 1998 293,000 115,000 -- 17,000 65,808 69,501
Met-Ed and Penelec 1997 293,000 95,000 -- -- 69,042 58,053
Bruce L. Levy 1999 360,000 250,000 4,382(4) 6,000 28,470 82,539(3)
Sr. Vice President 1998 288,875 223,200 997(4) 37,000 21,002 55,748
& Chief Financial 1997 255,833 165,300 1,312(4) -- 20,922 49,123
Officer, GPU
T. Gary Broughton 1999 270,000 250,000 852(5) 4,500 25,582 65,612(3)
President, GPUN 1998 270,000 100,000 433(5) 17,000 23,336 58,491
1997 265,154 90,000 305(5) -- 31,383 51,562
</TABLE>
- ----------------
(1) Consists of earnings on Long-Term Incentive Plan ("LTIP") compensation
paid in the year the award vests.
(2) Consists of Performance Cash Incentive Awards paid on the 1992, 1993
and 1994 restricted stock awards which have vested under the 1990 Stock
Plan. These amounts are designed to compensate recipients of restricted
stock/unit awards for the amount of federal and state income taxes that
are payable upon vesting of the restricted stock/unit awards.
The restricted units issued each year since 1995 under the 1990 Stock
Plan are performance based. The 1999 awards are shown in Long-Term
Incentive Plans - Awards in Last Fiscal Year table (the "LTIP table").
Dividend equivalents are earned on the aggregate restricted units
awarded under the 1990 Stock Plan and reinvested in additional units.
The aggregate number and value (based on the stock price per share at
December 31, 1999) of unvested and deferred vested stock-equivalent
restricted units (including reinvested dividend equivalents) include
the amounts shown on the LTIP table, and at the end of 1999 were:
Aggregate Units Aggregate Value
--------------- ---------------
Fred D. Hafer 34,547 $1,027,773
Ira H. Jolles 18,937 563,376
Robert L. Wise 23,370 695,258
Bruce L. Levy 16,519 491,440
T. Gary Broughton 16,464 489,804
9
<PAGE>
(3) For 1999, (a) the Corporation's matching contributions under the
Savings Plan, (b) the Corporation's matching contributions under the
non-qualified deferred compensation plan, (c) the benefit of
interest-free use of the non-term portion of employer-paid premiums for
split-dollar life insurance, (d) above-market interest accrued on the
retirement portion of deferred compensation and (e) earnings on LTIP
compensation not paid in the current year, were as follows:
(a) (b) (c) (d) (e)
------ ------- ------- ------- -------
Fred D. Hafer $6,400 $35,908 $29,351 $ 3,612 $61,183
Ira H. Jolles 6,400 13,040 10,533 2,622 35,327
Robert L. Wise 6,400 9,920 22,813 24,199 44,725
Bruce L. Levy 6,400 16,928 25,814 3,020 30,377
T. Gary Broughton 6,400 8,400 16,441 3,325 31,046
NOTE: The split-dollar life insurance amounts reported in the "All
Other Compensation" column are equal to the present value of the
interest-free use of the current year Corporation-paid premiums to the
projected date the premiums will be refunded to the Corporation.
(4) In addition to the earnings on LTIP compensation noted in (1) above,
these amounts include the above-market interest accrued on the
pre-retirement portion of deferred compensation in the amounts of
$2,966, $997 and $648 for the years 1999, 1998 and 1997 respectively.
(5) In addition to the earnings on LTIP compensation noted in (1) above,
these amounts include the above-market interest accrued on the
pre-retirement portion of deferred compensation in the amounts of $852,
$433 and $305 for the years 1999, 1998 and 1997 respectively.
Option Grants In Last Fiscal Year
The following table summarizes option grants made during 1999 to the
Named Executive Officers. All of these options were granted with an exercise
price equal to the fair market value of GPU stock on the date of grant.
<TABLE>
Individual Grants
-----------------
<CAPTION>
Number of
Securities % of
Underlying Total Options Grant Date
Options Granted to Exercise or Present
Grant Granted(1) Employees in Base Price Expiration Value
Name Date (#) Fiscal Year ($/Sh) Date (2)($)
------------- -------- ---------- ------------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Fred D. Hafer 06/03/99 30,000 32.4 % $42.9375 06/03/09 $198,000
Ira H. Jolles 06/03/99 6,000 6.5 42.9375 06/03/09 39,600
Robert L. Wise 06/03/99 5,000 5.4 42.9375 06/03/09 33,000
Bruce L. Levy 06/03/99 6,000 6.5 42.9375 06/03/09 39,600
T. Gary Broughton 06/03/99 4,500 4.9 42.9375 06/03/09 29,700
</TABLE>
(1) Options become exercisable in three equal annual installments beginning
on the first anniversary of the date of the grant. These grants will
fully vest upon termination of employment resulting from death or
disability. Options may be exercised after retirement in accordance
with the terms of the 1999 Stock Option Agreement. In the event of a
change in control of GPU during the option term, all options will
immediately become exercisable.
10
<PAGE>
(2) Options are valued using a Black-Scholes option pricing model, a
mathematical formula widely used to value options. The model as applied
used the grant date and the exercise price shown on the table, and the
fair market value of Common Stock on the grant date, which was the same
as the exercise price. For the June 1999 grant, the model assumed (i) a
risk-free rate of return of 6.14%, which approximates the yield on
10-year U.S. Treasury zero coupon bonds on the grant date; (ii) a stock
price volatility of 20.21%, based on the average historical volatility
for the 36-month period ending on the grant date; (iii) an average
dividend yield of 5.42%, based on the average yield for a 36-month
period; (iv) the exercise of all options on the final day of their
10-year terms; and (v) 3% discount for risk of forfeiture prior to the
options becoming exercisable. No discount from the theoretical value
was taken to reflect the restrictions on the transfer of the options
and the likelihood of the options being exercised in advance of the
final day of their terms.
Aggregated Option Exercises In Last Fiscal Year and Fiscal Year-End Option Value
The following table summarizes the number and value of all unexercised
options held by the Named Executive Officers. In 1999, no options were exercised
by any Named Executive Officer.
Number of Securities Value of Unexercised
Underlying Unexercised Options In-the-Money Options
at Fiscal Year-End (#) at Fiscal Year-End ($)
---------------------- ----------------------
Name Exercisable Unexercisable Exercisable Unexercisable
---- ----------- ------------- ----------- -------------
Fred D. Hafer 31,667 93,333 $ 0 $ 0
Ira H. Jolles 7,000 20,000 0 0
Robert L. Wise 5,667 16,333 0 0
Bruce L. Levy 12,333 30,667 0 0
T. Gary Broughton 5,667 15,833 0 0
<TABLE>
Long-Term Incentive Plans - Awards In Last Fiscal Year
This table shows the LTIP awards made to the Named Executive Officers
for the performance period January 1, 1999 through December 31, 2003.
<CAPTION>
Performance
Number of or Other Estimated Future Payouts Under
Shares, Period Until Non-Stock Price-Based Plans(1)
Units or Maturation Threshold Target Maximum
Name Other Rights or Payout (#) (#) (#)
------------- ------------ -------------- --------- ------- -------
<S> <C> <C> <C> <C> <C>
Fred D. Hafer 9,150 5-year vesting 4,575 9,150 18,300
Ira H. Jolles 3,300 5-year vesting 1,650 3,300 6,600
Robert L. Wise 3,000 5-year vesting 1,500 3,000 6,000
Bruce L. Levy 3,300 5-year vesting 1,650 3,300 6,600
T. Gary Broughton 2,550 5-year vesting 1,275 2,550 5,100
</TABLE>
11
(1)
<PAGE>
The restricted units awarded in 1999 under the 1990 Stock Plan provide for
a performance adjustment to the aggregate number of units vesting for
the recipient, including the accumulated reinvested dividend
equivalents, based on the annualized GPU Total Shareholder Return (TSR)
percentile ranking against all companies in the Standard & Poor's
Electric Utility Index for the period between the award and vesting
dates. With a 55th percentile ranking, the performance adjustment would
be 100% as reflected in the "Target" column. In the event that the
percentile ranking is below the 55th percentile, the performance
adjustment would be reduced in steps reaching 0% below the 40th
percentile. The minimum payout or "Threshold" begins at the 40th
percentile, which results in a payout of 50% of target. A ranking below
the 40th percentile would result in no award. Should the TSR percentile
ranking exceed the 59th percentile, then the performance adjustment
would be increased in steps reaching 200% at the 90th percentile as
reflected in the "Maximum" column. Regular quarterly dividends are
reinvested in additional units that are subject to the vesting
restrictions of the award. Actual payouts, if any, under the Plan would
be based on the aggregate number of units awarded and the units
accumulated through dividend reinvestment at the time the restrictions
lapse.
RETIREMENT PLANS
The GPU Companies' pension plans provide for pension benefits, payable
for life after retirement, based upon years of creditable service with the GPU
Companies and the employee's career average compensation as defined below.
Federal law limits the amount of an employee's pension benefits that may be paid
from a qualified trust established pursuant to a qualified pension plan (such as
the GPU Companies' plans). The GPU Companies also have adopted non-qualified
plans providing that the portion of a participant's pension benefits which, by
reason of such limitations, cannot be paid from such a qualified trust shall be
paid directly on an unfunded basis by the participant's employer.
The following table illustrates the amount of aggregate annual pension
from funded and unfunded sources resulting from employer contributions to the
qualified trust and direct payments payable upon retirement in 2000 (computed on
a single life annuity basis) to persons in specified compensation and years of
service classifications:
12
<PAGE>
<TABLE>
ESTIMATED ANNUAL RETIREMENT BENEFITS (2) (3) (4) (5)
BASED UPON CAREER AVERAGE COMPENSATION
--------------------------------------
(2000 Retirement)
<CAPTION>
Years of Service
--------------------------------------------------------------------------------
Career Average
Compensation (1) 15 20 25 30 35 40
- ---------------- -------- ------- --------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
$ 50,000 $ 13,810 $ 18,413 $ 23,016 $ 27,620 $ 32,223 $ 36,585
100,000 28,810 38,413 48,016 57,620 67,223 76,185
150,000 43,810 58,413 73,016 87,620 102,223 115,785
200,000 58,810 78,413 98,016 117,620 137,223 155,385
250,000 73,810 98,413 123,016 147,620 172,223 194,985
300,000 88,810 118,413 148,016 177,620 207,223 234,585
350,000 103,810 138,413 173,016 207,620 242,223 274,185
400,000 118,810 158,413 198,016 237,620 277,223 313,785
450,000 133,810 178,413 223,016 267,620 312,223 353,385
500,000 148,810 198,413 248,016 297,620 347,223 392,985
550,000 163,810 218,413 273,016 327,620 382,223 432,585
600,000 178,810 238,413 298,016 357,620 417,223 472,185
650,000 193,810 258,413 323,016 387,620 452,223 511,785
700,000 208,810 278,413 348,016 417,620 487,223 551,385
750,000 223,810 298,413 373,016 447,620 522,223 590,985
800,000 238,810 318,413 398,016 477,620 557,223 630,585
- ---------------
</TABLE>
(1) Career Average Compensation is the average annual compensation received
from January 1, 1984 to retirement and includes Salary and Bonus. The
Career Average Compensation amounts for the following Named Executive
Officers differ by more than 10% from the three-year average annual
compensation set forth in the Summary Compensation Table and are as
follows: Messrs. Hafer - $414,320; Jolles - $433,679; Wise - $304,694;
Levy - $230,429; and Broughton - $196,390.
(2) Years of Creditable Service at December 31, 1999: Messrs.
Hafer - 37 years; Jolles - 20 years; Wise - 36 years; Levy - 19 years;
and Broughton - 28 years.
(3) Based on an assumed retirement at age 65 in 2000. To reduce the above
amounts to reflect a retirement benefit assuming a continual annuity to
a surviving spouse equal to 50% of the annuity payable at retirement,
multiply the above benefits by 90%. The estimated annual benefits are
not subject to any reduction for Social Security benefits or other
offset amounts.
(4) Annual retirement benefits under the basic pension per the above table
cannot exceed 55%, as defined in the pension plan, of the average
compensation during the highest paid 36 calendar months. As of December
31, 1999 none of the Named Executive Officers exceed the 55% limit.
(5) The estimated annual retirement benefits in this table do not reflect
the retirement benefits which may be provided under the Supplemental
Executive Retirement Plan, described below.
13
<PAGE>
Supplemental Pension
Mr. Wise
The Corporation has entered into a separate agreement with Mr. Wise
which will provide him with supplemental pension benefits in lieu of benefits to
which he would otherwise have been entitled under the Voluntary Enhanced
Retirement Program. Under the terms of this agreement, Mr. Wise will be entitled
to receive such additional monthly payment, if any, to ensure that the aggregate
monthly pension otherwise payable to him under GPU's retirement plans is not
less than (a) $19,858 for each month beginning after the later of his retirement
date and before the month beginning after his 62nd birthday or (b) $19,358 for
each month beginning after the later of his retirement date and his 62nd
birthday. These figures will be increased by 20% during his first year of
retirement. Mr. Wise will also receive (i) an extension of health insurance
benefits to the later of his 62nd birthday and the third anniversary of
retirement and (ii) an amended split-dollar life insurance supplement to provide
for eligibility for full benefits under his policy at age 55 with ten years of
service.
ESTATE ENHANCEMENT PROGRAM
As described on page 3 above, GPU executive officers are eligible to
participate in the Corporation's Estate Enhancement Program.
EMPLOYMENT, TERMINATION AND CHANGE IN CONTROL ARRANGEMENTS
Severance Arrangements
The Corporation has entered into Severance Protection Agreements with
the Named Executive Officers which provide certain severance benefits to the
executive if his employment is terminated following a change in control of GPU
(as defined). These agreements are intended to induce the executives to remain
in the employ of the Corporation and help ensure that the Corporation will have
the benefit of their services without distraction in the face of a potential
change in control.
Under the agreements, benefits are paid if, in connection with a change
in control, the executive's employment is terminated for reasons other than
cause, disability or death, or if the executive resigns following certain
actions (specified in the agreements) by the Corporation such as a reduction in
salary or change in position. In addition, Mr. Hafer receives severance benefits
if he resigns for any reason within six months following a change in control.
The benefits payable to all executives consist of, in general, (a) the
executive's base salary through the termination date and a pro rata portion of
the executive's target incentive bonus (or, if greater, the highest annual bonus
paid to the executive in any of the three full fiscal years prior to either
termination or the change in control); (b) severance compensation equal to three
times the sum of the executive's base salary and target incentive bonus,
provided that if the executive's normal retirement date is within three years of
the executive's termination date, the executive's benefits will be
proportionately reduced; (c) a continuation of insurance benefits for up to
three years; (d) reimbursement of certain expenses subject
14
<PAGE>
to specified limitations; and (e) such additional amount as is necessary to pay
any excise tax under Section 4999 of the Internal Revenue Code (and any related
interest and penalties) on amounts payable under the agreements.
The agreements have an initial term of two years and automatically
renew annually unless earlier terminated by the executive or GPU.
Mr. Wise's agreement provides that any severance compensation he may
receive under the agreement will be offset by the value of the supplemental
pension described above.
Under the Corporation's severance policy for employees, if the
employment of Messrs. Hafer, Jolles, Wise, or Levy is involuntarily terminated,
as defined, other than in connection with a change in control, he is entitled to
receive, in general, severance compensation equal to one week's pay for each
full year of service. Premium payments will also be made under the executive's
split-dollar life insurance policy for specified periods following the
executive's termination of employment and following a change in control of GPU.
Mr. Broughton is eligible for benefits under the Oyster Creek Retention
Program which was established for all employees of GPUN who are employed at the
Oyster Creek facility or at the company's offices in Parsippany, New Jersey.
Under the terms of this program, if Mr. Broughton's employment is involuntarily
terminated, he will be eligible to receive pension benefits calculated by adding
five years to his age and five years to his years of creditable service as well
as a $500 per month Social Security supplement until he reaches age 62.
Supplemental Executive Retirement Plan
The Corporation has established a supplemental executive retirement
plan ("SERP") for certain GPU senior executives, including the Named Executive
Officers, who retire on or after July 1, 1999. Subject to vesting, the SERP
provides a total retirement benefit equal to 60% of final average pay for
executives who have 30 years of service, with a benefit of 2% per year of
service paid to executives who have served for shorter periods. The benefits are
offset by other sources of retirement income, including social security
benefits, qualified and non-qualified pension benefits and any prior employer
benefits.
To vest in the SERP, executives must have reached age 55 and have 15
years of service; to receive full benefits, they must retire after age 62. An
executive would also be eligible for full benefits if he or she is at least 60
years of age and has had 25 years of service.
Lump Sum Distributions
An executive may, prior to retirement and in connection with a change
in control, elect to receive a lump sum distribution of all amounts payable to
the executive under GPU Companies' supplemental retirement and deferred
compensation plans and arrangements when such executive terminates employment
regardless of the circumstances, or when the executive terminates employment
within 24 months following a change in control. Additionally, prior to
termination, an executive may elect to receive such lump sum payment only in the
event of a change in control.
15
<PAGE>
Supplemental Agreement
Mr. Jolles
Retirement and Disability - If Mr. Jolles retires on or after his
normal retirement date (the last day of the month in which he attains age 65),
he will receive (in addition to his benefits under GPUS' employee retirement
plans) a supplemental retirement pension from the GPU Companies equal to the
additional pension he would have received under the GPUS employee retirement
plans as if he had an additional 20 years of past creditable service. If Mr.
Jolles reaches his normal retirement date while he is receiving disability
income under GPUS' disability income plans, he will thereafter receive a
supplemental retirement pension from the GPU Companies equal to the additional
pension he would have been paid under GPUS' employee retirement plans as if he
had an additional 20 years of past creditable service. Upon retirement, Mr.
Jolles will also receive an extension of his health insurance benefits to the
third anniversary of retirement.
Termination - (i) If Mr. Jolles' employment with the GPU Companies
terminates "involuntarily," as defined, under circumstances involving a "change
in control" of GPU, as defined, or without cause, he shall receive from the GPU
Companies a supplemental retirement pension which would have been paid to him
under GPUS' employee retirement plans as if he had an additional 20 years of
past creditable service. (ii) If, however, his employment terminates for any
other reason (except upon retirement or death), he will receive from the GPU
Companies a supplemental retirement pension equal to the additional pension he
would have been paid under GPUS' employee retirement plans as if he had
additional years of creditable service ranging, as of December 31, 1999, from
ten years up to a maximum of 20 years depending upon his years of actual
employment by GPUS at the time of termination.
Death - In the event of Mr. Jolles' death before he begins receiving
benefits under GPUS' employee retirement plans, his surviving spouse, if any,
shall receive such benefits during her lifetime, together with the supplemental
retirement pension benefits which would have been payable to him as described in
Termination (ii) above.
Other - To the extent relevant to the level of benefits payable to Mr.
Jolles under other benefit plans provided for senior GPU executives, he will be
treated as having the years of creditable service as described in Termination
(ii) above.
BENEFIT PROTECTION TRUSTS
The Corporation has entered into benefit protection trust agreements to
be used to fund the Corporation's obligations to executive officers and
directors under deferred compensation and incentive programs and agreements, and
with respect to certain retirement and termination benefits, in the event of a
change in control. The trusts may also be used for the purpose of paying legal
expenses incurred in pursuing benefit claims under such programs and agreements
following a change in control. The trusts are currently partially funded.
16
<PAGE>
Jersey Central Power & Light Company/
Metropolitan Edison Company/Pennsylvania Electric Company
EXECUTIVE COMPENSATION
The information required with respect to GPU, Inc. is included in the
EXECUTIVE COMPENSATION section of GPU, Inc.'s Proxy Statement for the 2000
Annual Meeting of Stockholders. The following table sets forth remuneration
paid, as required, to the Chief Executive Officer and the four other most highly
compensated executive officers of JCP&L, Met-Ed and Penelec for the year ended
December 31, 1999.
The managements of JCP&L, Met-Ed and Penelec were combined in a 1996
reorganization. Accordingly, the amounts shown below represent the aggregate
remuneration paid to such executive officers by JCP&L, Met-Ed and Penelec during
1999, 1998 and 1997.
Remuneration of Executive Officers
<TABLE>
SUMMARY COMPENSATION TABLE
Annual Compensation Long-Term Compensation
------------------- ----------------------
Awards Payouts
------ -------
<CAPTION>
Other Securities
Name and Annual Underlying LTIP All Other
Principal Compensa- Options Payouts Compensa-
Position Year Salary($) Bonus($) tion($)(1) Granted(#) ($)(2) tion ($)
- ----------- ---- --------- -------- ---------- ---------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
F. D. Hafer
Chairman of the
Board and Chief
Executive Officer (3) (3) (3) (3) (3) (3) (3)
R. L. Wise
President (4) (4) (4) (4) (4) (4) (4)
R. S. Zechman 1999 170,000 120,000 - 1,400 21,043 22,083 (5)
Vice President - 1998 170,000 60,000 538 4,850 18,669 17,623
Engineering & Operations 1997 162,538 32,000 637 - 20,085 15,843
C. A. Mascari 1999 170,000 112,000 - 1,400 20,218 27,090 (6)
Vice President - 1998 170,000 50,000 - 4,850 21,002 20,762
Power Services 1997 156,228 32,000 - - 18,727 16,997
D. J. Howe 1999 170,000 95,000 - 1,400 - 18,604 (7)
Vice President - 1998 170,000 55,000 - 4,850 - 14,033
Customer Services 1997 162,308 32,000 - - - 11,524
</TABLE>
(1) Consists of earnings on "Long-Term Incentive Plan" ("LTIP")
compensation paid in the year the award vests.
17
<PAGE>
(2) Consists of Performance Cash Incentive Awards paid on the 1992, 1993
and 1994 restricted stock awards, which have vested under the 1990
Stock Plan. These amounts are designed to compensate recipients of
restricted stock/unit awards for the amount of federal and state income
taxes that are payable upon vesting of the restricted stock/unit
awards. The restricted units issued each year since 1995 under the 1990
Stock Plan are performance based. The 1999 awards are shown in
"Long-Term Incentive Plans - Awards in Last Fiscal Year" table (the
"LTIP table"). Dividend equivalents are earned on the aggregate
restricted units awarded under the 1990 Stock Plan and reinvested in
additional units.
The aggregate number and value (based on the stock price per share at
December 31, 1999) of unvested and deferred vested stock-equivalent
restricted units (including reinvested dividend equivalents) includes
the amounts shown on the LTIP table, and at the end of 1999 were:
Aggregate Units Aggregate Value
--------------- ---------------
F. D. Hafer see note (3) see note (3)
R. L. Wise see note (4) see note (4)
R. S. Zechman 6,722 $199,980
C. A. Mascari 7,926 235,799
D. J. Howe 4,811 143,127
(3) Mr. Hafer was compensated by GPUS for his overall service on behalf of
GPU and accordingly was not compensated directly by the other
subsidiary companies for his services. Information with respect to Mr.
Hafer's compensation is included in the EXECUTIVE COMPENSATION section
of GPU, Inc.'s Proxy Statement for the 2000 Annual Meeting of
Stockholders.
(4) Information with respect to Mr. Wise's compensation is included in the
EXECUTIVE COMPENSATION section of GPU, Inc.'s Proxy Statement for the
2000 Annual Meeting of Stockholders.
(5) Consists of GPU's matching contributions under the Savings Plan
($6,400), matching contributions under the non-qualified deferred
compensation plan ($2,800), above-market interest accrued on the
retirement portion of deferred compensation ($351), and earnings on
LTIP compensation not paid in the current year ($12,532).
(6) Consists of GPU's matching contributions under the Savings Plan
($6,400), matching contributions under the non-qualified deferred
compensation plan ($2,400), above-market interest accrued on the
retirement portion of deferred compensation ($3,314), and earnings on
LTIP compensation not paid in the current year ($14,976).
(7) Consists of GPU's matching contributions under the Savings Plan
($6,400), matching contributions under the non-qualified deferred
compensation plan ($2,600), above-market interest accrued on the
retirement portion of deferred compensation ($901), and earnings on
LTIP compensation not paid in the current year ($8,703).
18
<PAGE>
Option Grants In Last Fiscal Year
<TABLE>
The following table summarizes option grants made during 1999 to the
Named Executive Officers. All of these options were granted with an exercise
price equal to the fair market value of GPU stock on the date of grant.
<CAPTION>
Individual Grants
Number of
Securities % of Total
Underlying Options Grant Date
Options Granted to Present
Grant Granted Employees in Base Price Expiration Value
Name Date (1)(#) Fiscal Year ($/Sh) Date (2)($)
------------- -------- ---------- ------------ ----------- ---------- --------
<S> <C> <C> <C> <C> <C> <C>
F. D. Hafer (3) (3) (3) (3) (3) (3)
R. L. Wise (4) (4) (4) (4) (4) (4)
R. S. Zechman 06/03/99 1,400 1.5 % $42.9375 06/03/09 $9,240
C. A. Mascari 06/03/99 1,400 1.5 42.9375 06/03/09 9,240
D. J. Howe 06/03/99 1,400 1.5 42.9375 06/03/09 9,240
</TABLE>
(1) Options become exercisable in three equal annual installments beginning
on the first anniversary of the date of the grant. These grants will
fully vest upon termination of employment resulting from death or
disability. Options may be exercised after retirement in accordance
with the terms of the 1999 Stock Option Agreement. In the event of a
change in control during the option term, all options will immediately
become exercisable.
(2) Options are valued using a Black-Scholes option pricing model, a
mathematical formula widely used to value options. The model as applied
used the applicable grant dates and the exercise prices shown on the
table, and the fair market value of Common Stock on the respective
grant dates, which was in each case the same as the exercise price. For
the June 1999 grant, the model assumed (i) a risk-free rate of return
of 6.14%, which approximates the rate on 10-year U.S. Treasury zero
coupon bonds on the grant date; (ii) a stock price volatility of
20.21%, based on the average historical volatility for the 36-month
period ending on the grant date; (iii) an average dividend yield of
5.42%, based on the average yield for a 36-month period; (iv) the
exercise of all options on the final day of their 10-year terms; and
(v) 3% discount for risk of forfeiture prior to the options becoming
exercisable. No discount from the theoretical value was taken to
reflect the restrictions on the transfer of the options and the
likelihood of the options being exercised in advance of the final day
of their terms.
(3) Information with respect to Mr. Hafer's options is included in the
EXECUTIVE COMPENSATION section of GPU, Inc.'s Proxy Statement for the
2000 Annual Meeting of Stockholders.
(3) Information with respect to Mr. Wise's options is included in the
EXECUTIVE COMPENSATION section of GPU, Inc.'s Proxy Statement for the
2000 Annual Meeting of Stockholders.
19
<PAGE>
<TABLE>
Aggregated Option Exercises In Last Fiscal Year And Fiscal Year-End Option Value
The following table summarizes the number and value of all unexercised
options held by the Named Executive Officers. In 1999, no options were exercised
by any Named Executive Officer.
Number of Securities Underlying Value of Unexercised
Unexercised Options at In-the-Money Options
Fiscal Year-End (#) at Fiscal Year-End ($)
------------------------------- --------------------------
<CAPTION>
Name Exercisable Unexercisable Exercisable Unexercisable
- ---- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C>
F. D. Hafer (3) (3) (3) (3)
R. L. Wise (4) (4) (4) (4)
R. S. Zechman 1,617 4,633 0 0
C. A. Mascari 1,617 4,633 0 0
D. J. Howe 1,617 4,633 0 0
</TABLE>
LONG-TERM INCENTIVE PLANS - AWARDS IN LAST FISCAL YEAR
<TABLE>
This table shows the LTIP awards made to the Named Executive Officers
for the performance period January 1, 1999 through December 31, 2003.
<CAPTION>
Performance Estimated future payouts
Number of or other under non-stock price-
shares, period until based plans(1)
units or maturation Threshold Target Maximum
Name other rights or payout (#) (#) (#)
---- ------------- -------------- --------- -------- -----
<S> <C> <C> <C> <C> <C>
F. D. Hafer (2) (2) (2) (2) (2)
R. L. Wise (2) (2) (2) (2) (2)
R. S. Zechman 1,100 5 year vesting 550 1,100 2,200
C. A. Mascari 1,100 5 year vesting 550 1,100 2,200
D. J. Howe 1,100 5 year vesting 550 1,100 2,200
</TABLE>
(1) The restricted units awarded in 1999 under the 1990 Stock Plan provide
for a performance adjustment to the aggregate number of units vesting
for the recipient, including the accumulated reinvested dividend
equivalents, based on the annualized GPU Total Shareholder Return (TSR)
percentile ranking against all companies in the Standard & Poor's
Electric Utility Index for the period between the award and vesting
dates. With a 55th percentile ranking, the performance adjustment would
be 100% as reflected in the "Target" column. In the event that the
percentile ranking is below the 55th percentile, the performance
adjustment would be reduced in steps reaching 0% below the 40th
percentile. The minimum payout or "Threshold" begins at the 40th
percentile, which results in a payout of 50% of target. A ranking below
the 40th percentile would result in no award. Should the TSR percentile
ranking exceed the 59th percentile, then the performance adjustment
would be increased in steps reaching 200% at the 90th percentile as
reflected in the "Maximum" column. Under the 1990 Stock Plan, regular
quarterly dividends are reinvested in additional units that are subject
to the vesting restrictions of the award. Actual payouts under the Plan
would be based on the aggregate number of units
20
<PAGE>
awarded and the units accumulated through dividend reinvestment at the
time the restrictions lapse.
(2) Information with respect to Mr. Hafer's and Mr. Wise's long-term
incentive plans is included in the EXECUTIVE COMPENSATION section of
GPU, Inc.'s Proxy Statement for the 2000 Annual Meeting of
Stockholders.
Proposed Remuneration of Executive Officers
None of the Named Executive Officers in the Summary Compensation Table
has an employment contract. The compensation of executive officers is determined
from time to time by the Personnel, Compensation and Nominating Committee of the
GPU, Inc. Board of Directors.
Retirement Plans
The GPU Companies' pension plans provide for pension benefits, payable
for life after retirement, based upon years of creditable service with the GPU
Companies and the employee's career average compensation as defined below.
Federal law limits the amount of an employee's pension benefits that may be paid
from a qualified trust established pursuant to a qualified pension plan (such as
the GPU Companies' plans). The GPU Companies also have adopted non-qualified
plans providing that the portion of a participant's pension benefits which, by
reason of such limitations, cannot be paid from such a qualified trust shall be
paid directly on an unfunded basis by the participant's employer.
The following table illustrates the amount of aggregate annual pension
from funded and unfunded sources resulting from employer contributions to the
qualified trust and direct payments payable upon retirement in 2000 (computed on
a single life annuity basis) to persons in specified compensation and years of
service classifications:
ESTIMATED ANNUAL RETIREMENT BENEFITS (2) (3) (4)
BASED UPON CAREER AVERAGE COMPENSATION
--------------------------------------
(2000 Retirement)
Years of Service
--------------------------------------------------------------
Career Average
Compensation (1) 15 20 25 30 35 40
- ---------------- -------- -------- --------- -------- -------- -------
$ 50,000 $ 13,810 $ 18,413 $ 23,016 $ 27,620 $ 32,223 $ 36,585
100,000 28,810 38,413 48,016 57,620 67,223 76,185
150,000 43,810 58,413 73,016 87,620 102,223 115,785
200,000 58,810 78,413 98,016 117,620 137,223 155,385
250,000 73,810 98,413 123,016 147,620 172,223 194,985
300,000 88,810 118,413 148,016 177,620 207,223 234,585
350,000 103,810 138,413 173,016 207,620 242,223 274,185
400,000 118,810 158,413 198,016 237,620 277,223 313,785
450,000 133,810 178,413 223,016 267,620 312,223 353,385
500,000 148,810 198,413 248,016 297,620 347,223 392,985
550,000 163,810 218,413 273,016 327,620 382,223 432,585
600,000 178,810 238,413 298,016 357,620 417,223 472,185
650,000 193,810 258,413 323,016 387,620 452,223 511,785
700,000 208,810 278,413 348,016 417,620 487,223 551,385
750,000 223,810 298,413 373,016 447,620 522,223 590,985
800,000 238,810 318,413 398,016 477,620 557,223 630,585
21
<PAGE>
(1) Career Average Compensation is the average annual compensation received
from January 1, 1984 to retirement and includes Salary and Bonus. The
career average compensation amounts for the following Named Executive
Officers differ by more than 10% from the three year average annual
compensation set forth in the Summary Compensation Table and are as
follows: Messrs. Hafer - $414,320; Wise - $304,694; Zechman - $139,754;
Mascari - $138,924; and Howe - $119,362.
(2) Years of Creditable Service at December 31, 1999: Messrs. Hafer - 37
years; Wise - 36 years; Zechman - 30 years; Mascari - 26 years; and
Howe - 23 years.
(3) Based on an assumed retirement at age 65 in 2000. To reduce the above
amounts to reflect a retirement benefit assuming a continual annuity to
a surviving spouse equal to 50% of the annuity payable at retirement,
multiply the above benefits by 90%. The estimated annual benefits are
not subject to any reduction for Social Security benefits or other
offset amounts.
(4) Annual retirement benefits under the basic pension per the above table
cannot exceed 55%, as defined in the pension plan, of the average
compensation during the highest paid 36 calendar months. As of December
31, 1999, none of the Named Executive Officers exceed the 55% limit.
Remuneration of JCP&L Directors
Non-employee directors receive an annual retainer of $15,000, a fee of
$1,000 for each Board meeting attended, and a fee of $1,000 for each Committee
meeting attended.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required for GPU, Inc. is included in the SECURITY
OWNERSHIP section of GPU, Inc.'s Proxy Statement for the 2000 Annual Meeting of
Stockholders.
All of the outstanding shares of JCP&L (15,371,270), Met-Ed (859,500)
and Penelec (5,290,596) common stock are owned beneficially and of record by
their parent, GPU, Inc., 300 Madison Avenue, Morristown, NJ 07962.
The following table sets forth, as of February 1, 2000, the beneficial
ownership of equity securities (and stock-equivalent units) of each of the
directors and each of the executive officers named in the Summary Compensation
Table, and of all directors and executive officers of each of the respective GPU
Energy companies as a group. The shares of Common Stock owned by all directors
and executive officers as a group constitute less than 1% of the total shares
outstanding.
22
<PAGE>
<TABLE>
Amount and Nature of Beneficial Ownership
Shares(1) Stock-Equivalent
------------------ ----------------
Name Title of Security Direct Indirect Units(2)
---- ----------------- ------ -------- --------
<CAPTION>
JCP&L/Met-Ed/Penelec:
- ---------------------
<S> <C> <C> <C> <C>
F. D. Hafer GPU Common Stock 12,421 154 34,547
R. L. Wise GPU Common Stock 4,111 - 23,370
R. S. Zechman GPU Common Stock 1,914 - 6,722
C. A. Mascari GPU Common Stock - 6 7,926
D. J. Howe GPU Common Stock - 481 4,811
C. B. Snyder GPU Common Stock 955 - 7,726
JCP&L Only:
G. E. Persson GPU Common Stock None
S. C. Van Ness GPU Common Stock None
S. B. Wiley GPU Common Stock None
All Directors and
Executive Officers
as a Group GPU Common Stock 43,095 3,442 142,530
</TABLE>
(1) The number of shares owned and the nature of such ownership, not being
within the knowledge of GPU, have been furnished by each individual.
(2) Restricted units, which do not have voting rights, represent rights
(subject to vesting) to receive shares of Common Stock under the 1990
Stock Plan for Employees of GPU, Inc. and Subsidiaries (the "1990 Stock
Plan"). These amounts also include restricted units which have vested
under the 1990 Stock Plan, but which were deferred pursuant to that
Plan by the following officers: Messrs. Wise - 6,765 units; Zechman -
689 units; and Mascari - 2,001 units.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
GPU and its subsidiaries have business arrangements with organizations
with which certain GPU directors and certain owners of 5% or more of GPU stock
are affiliated. These arrangements are conducted in the ordinary course of
business, at arms-length, and on standard commercial terms and conditions.
23
<TABLE>
<CAPTION>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Balance Sheet
December 31, 1999
------------------------------------------------------------
(In Thousands)
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc.
------------ ----------- ------- -------------
<S> <C> <C> <C> <C>
ASSETS
Utility Plant:
In service, at original cost $3,601,695 $3,601,695
Less, accumulated depreciation 1,872,422 1,872,422
--------- ---------
Net utility plant in service 1,729,273 1,729,273
Construction work in progress 80,671 80,671
Other, net 14,781 14,781
--------- ---------
Net utility plant 1,824,725 1,824,725
--------- ---------
Other Property and Investments:
Common stock of subsidiary - $ 16,965 16,965
Nuclear decommissioning trusts, at market 394,941 394,941
Nuclear fuel disposal trust, at market 119,293 119,293
Other, net 1,252 1,252
--------- ------- ---------
Total other property and investments 515,486 16,965 532,451
--------- ------- ---------
Current Assets:
Cash and temporary cash investments 68,684 68,683 $ 1
Special deposits 1,035 1,035
Accounts receivable:
Customers, net 164,099 164,099
Other 83,086 13,837 83,086 13,837
Unbilled revenues 78,251 78,251
Deferred income taxes 1,652 1,652
Prepayments 23,000 23,000
--------- ------- --------- -------
Total current assets 419,807 13,837 419,806 13,838
--------- ------- --------- -------
Deferred Debits and Other Assets:
Regulatory assets, net 2,809,801 2,809,801
Deferred income taxes 221,668 221,668
Other 19,510 128,866 19,510 128,866
--------- ------- --------- -------
Total deferred debits and other assets 3,050,979 128,866 3,050,979 128,866
--------- ------- --------- -------
Total Assets $5,810,997 $159,668 $5,827,961 $142,704
========= ======= ========= =======
<FN>
- ------------------------
The notes to the consolidated financial statements of JCP&L, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
1
</FN>
</TABLE>
<PAGE>
<TABLE>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Balance Sheet
December 31, 1999
-----------------------------------------------------------
(In Thousands)
<CAPTION>
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc.
-------------------- ------------ -------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock $ 153,713 $ 1 $ 153,713 $ 1
Capital surplus 510,769 16,773 510,769 16,773
Retained earnings 720,878 191 720,878 191
Accumulated other comprehensive income 7 7
--------- ------- --------- --------
Total common stockholder's equity 1,385,367 16,965 1,385,367 16,965
Cumulative preferred stock:
With mandatory redemption 73,167 73,167
Without mandatory redemption 12,649 12,649
Company-obligated mandatorily redeemable
preferred securities 125,000 125,000
Long-term debt 1,133,760 128,866 1,262,626
--------- ------- --------- --------
Total capitalization 2,729,943 145,831 2,733,809 141,965
--------- ------- --------- --------
Current Liabilities:
Securities due within one year 50,846 50,846
Obligations under capital leases 48,165 48,165
Accounts payable
Affiliates 60,527 13,837 73,616 748
Other 82,355 82,355
Taxes accrued 13,079 13,087 (8)
Interest accrued 24,523 24,524 (1)
Other 36,169 36,169
--------- ------- --------- -------
Total current liabilities 315,664 13,837 328,762 739
--------- ------- --------- -------
Deferred Credits and Other Liabilities:
Deferred income taxes 570,568 570,568
Unamortized investment tax credits 32,114 32,114
Three Mile Island Unit 2 future costs 124,241 124,241
Power purchase contract loss liability 1,624,769 1,624,769
Nuclear fuel disposal fee 148,009 148,009
Other 265,689 265,689
--------- ------- --------- --------
Total deferred credits and other liabilities 2,765,390 - 2,765,390 -
--------- ------- --------- --------
Total Liabilities and Capital $ 5,810,997 $159,668 $5,827,961 $142,704
========= ======= ========= =======
</TABLE>
The notes to the consolidated financial statements of JCP&L, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
2
<PAGE>
<TABLE>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1999
-----------------------------------------------------------
(In Thousands)
<CAPTION>
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc
-------------------- ------------ -------------- ------------
<S> <C> <C> <C> <C>
Operating Revenues $2,018,209 $2,018,209
--------- ------ ---------
Equity in Earnings of Subsidiary - $ 1,087 1,087
--------- ------ ---------
Operating Expenses:
Fuel 91,044 91,044
Power purchased and interchanged:
Affiliates 127,406 127,406
Other 670,538 670,538
Deferral of energy and capacity costs, net (38,108) (38,108)
Other operation and maintenance 482,874 482,874
Depreciation and amortization 241,842 241,842
Taxes, other than income taxes 76,824 76,824
--------- ------ ---------
Total operating expenses 1,652,420 - 1,652,420
--------- ------ ---------
Operating Income 365,789 1,087 366,876
--------- ------ ---------
Other Income and Deductions:
Allowance for other funds used
during construction - -
Other income, net 12,461 12,457 12,537 $12,381
--------- ------ --------- ------
Total other income and deductions 12,461 12,457 12,537 12,381
--------- ------ --------- ------
Income Before Interest Charges and
Dividends on Preferred Securities 378,250 13,544 379,413 12,381
--------- ------ --------- ------
Interest Charges and Dividends on
Preferred Securities:
Long-term debt and notes payable 95,325 12,457 107,782
Other interest 650 642 8
Allowance for borrowed funds used
during construction (1,775) (1,775)
Dividends on company-obligated mandatorily
redeemable preferred securities 10,700 10,700
--------- ------ --------- ------
Total interest charges 104,900 12,457 106,649 10,708
--------- ------ --------- ------
Income Before Income Taxes 273,350 1,087 272,764 1,673
Income taxes 100,970 100,384 586
--------- ------ --------- ------
Net Income $ 172,380 $ 1,087 $ 172,380 $ 1,087
========= ====== ========= ======
Preferred stock dividends 8,670 8,670
Loss on preferred stock reacquisition 848 848
--------- ---------
Earnings Available for Common Stock $ 162,862 $ 162,862
========= =========
</TABLE>
The notes to the consolidated financial statements of JCP&L, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
3
<PAGE>
<TABLE>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Statement of Comprehensive Income
For the Year Ended December 31, 1999
-----------------------------------------------------------
(In Thousands)
<CAPTION>
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc.
-------------- ------------ ------------ -------------
<S> <C> <C> <C> <C>
Net Income $172,380 $ 1,087 $172,380 $ 1,087
Other comprehensive income/(loss), net of tax:
Net unrealized gains on investments 7 7
Minimum pension liability 425 425
------- ------ -------
Total other comprehensive income $ 432 $ - $ 432 $ -
------- ------ ------- -------
Comprehensive income $172,812 $ 1,087 $172,812 $ 1,087
======= ====== ======= =======
</TABLE>
The notes to the consolidated financial statements of JCP&L, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
4
<PAGE>
<TABLE>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
-------------------------------------------------------------
(In Thousands)
<CAPTION>
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc.
------------------- ----------- -------------- -------------
<S> <C> <C> <C> <C>
Balance at beginning of year $ 893,016 $ 191 $ 893,016 $ 191
Net income 172,380 1,087 172,380 1,087
Cash dividends declared on common stock (335,000) (1,066) (335,000) (1,066)
Cash dividends on cumulative preferred stock (8,670) (8,670)
Loss on preferred stock reacquisition (848) (848)
-------- ------ -------- ------
Balance at end of year $ 720,878 $ 212 $ 720,878 $ 212
======== ====== ======== ======
</TABLE>
The notes to the consolidated financial statements of JCP&L, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
5
<PAGE>
<TABLE>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
-----------------------------------------------------------
(In Thousands)
<CAPTION>
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc
------------ ----------- ------- ------------
<S> <C> <C> <C> <C>
Operating Activities:
Net income $ 172,380 $ 1,087 $ 172,380 $ 1,087
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiary - (1,087) (1,087)
Depreciation and amortization 272,284 272,284
Amortization of property under capital leases 29,507 29,507
NJBPU restructuring rate order 115,000 115,000
Deferred income taxes and investment tax credit
net (96,183) (96,183)
Deferred energy and capacity costs, net (37,841) (37,841)
Changes in working capital:
Receivables (84,364) (83,891) (473)
Materials and supplies 46,023 46,023
Special deposits and prepayments 9,660 9,660
Payables and accrued liabilities (195) (647) 452
Nonutility generation contract buyout costs (35,500) (35,500)
Other, net (12,327) (12,327)
-------- ------ -------- -------
Net cash provided by operating activities 378,444 - 377,378 1,066
-------- ------ -------- -------
Investing Activities:
Capital expenditures and investments (140,915) (140,915)
Proceeds from sale of investments 413,753 413,753
Contributions to decommissioning trusts (59,175) (59,175)
Other, net (2,162) (2,162)
-------- ------- -------- -------
Net cash used for investing activities 211,501 - 211,501 -
-------- ------- -------- -------
Financing Activities:
Increase in notes payable, net (122,344) (122,344)
Retirement of long-term debt (12) (12)
Capital lease principal payments (27,347) (27,347)
Redemption of preferred stock (30,940) (30,940)
Dividends paid on preferred stock (7,468) (7,468)
Dividends paid on common stock (335,000) (335,000)
Dividends paid on common stock - Internal 1,066 (1,006)
------- ------ -------- -------
Net cash required by financing activities (523,111) - (522,045) (1,006)
-------- ------ -------- -------
Net increase in cash and temporary cash
investments from above activities 66,834 66,834 -
Cash and temporary cash investments, beginning of year 1,850 1,849 1
-------- ------ -------- -------
Cash and temporary cash investments, end of year $ 68,684 $ - $ 68,683 $ 1
======== ====== ======== =======
Supplemental Disclosure:
Interest paid $ 115,624 $12,457 $ 117,325 $ 10,756
======== ====== ======== =======
Income taxes paid $ 189,304 $ 188,722 $ 582
======== ======== =======
New capital lease obligations incurred $ 9,407 $ 9,407
======== ========
</TABLE>
The notes to the consolidated financial statements of JCP&L, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
6
<PAGE>
<TABLE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1999
----------------------------------------------------
(In Thousands)
<CAPTION>
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan Met-Ed Met-Ed York Haven
Companies and Edison Preferred Preferred Power
Consolidated Adjustments Company Capital, Inc. Capital II, Inc. Company
-------------- ------------ ----------- ------------- ---------------- ----------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Utility Plant:
In service, at original cost $1,522,100 $1,498,868 $23,232
Less, accumulated depreciation 462,709 455,206 7,503
--------- --------- ------
Net utility plant in service 1,059,391 1,043,662 15,729
Construction work in progress 25,329 21,217 4,112
Other, net 643 643
--------- --------- ------
Net utility plant 1,085,363 1,065,522 19,841
--------- --------- ------
Other Property and Investments:
Common stock of subsidiaries $ 32,753 32,753
Nuclear decommissioning trusts 144,261 144,261
Other, net 3,010 3,010
--------- ------ -------
Total other property and investments 147,271 32,753 180,024
--------- ------ --------
Current Assets:
Cash and temporary cash investments 10,899 10,262 $ 1 $ 120 516
Special deposits 160 160
Accounts receivable:
Customers, net 60,188 60,188
Other 149,760 17,868 142,840 11,412 710 12,666
Unbilled revenues 28,956 28,956
Materials and supplies, at average cost
or less:
Construction and maintenance
Fuel
Deferred income taxes 2,945 2,945
Prepayments 16,715 16,532 183
--------- ------- --------- ------- ------ ------
Total current assets 269,623 17,868 261,883 11,413 830 13,365
--------- ------- --------- ------- ------ ------
Deferred Debits and Other Assets:
Regulatory assets, net 1,231,140 1,230,699 441
Deferred income taxes 738,189 738,255 (66)
Other 16,607 103,093 16,607 $103,093
--------- ------- --------- ------- ------- ------
Total deferred debits and other assets 1,985,936 103,093 1,985,561 - 103,093 375
--------- ------- --------- ------- ------- ------
Total Assets $3,488,193 $153,714 $3,492,990 $ 11,413 $103,923 $33,581
========= ======= ========= ======= ======= ======
</TABLE>
The notes to the consolidated financial statements of Met-Ed, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
7
<PAGE>
<TABLE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1999
----------------------------------------------------
(In Thousands)
<CAPTION>
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan Met-Ed Met-Ed York Haven
Companies and Edison Preferred Preferred Power
Consolidated Adjustments Company Capital, Inc. Capital II, Inc. Company
-------------- ------------ ----------- ------------- ---------------- --------
<S> <C> <C> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock $ 66,273 $ 1,165 $ 66,273 $ 1 $ 1 $ 1,163
Capital surplus 400,200 18,263 400,200 10,309 3,094 4,860
Retained earnings 13,581 13,325 13,581 174 39 13,112
Accumulated other comprehensive income 21,363 21,363
--------- ------- --------- ------ ------- ------
Total common stockholder's equity 501,417 32,753 501,417 10,484 3,134 19,135
Cumulative preferred stock
Trust preferred securities 100,000 100,000
Long-term debt 496,883 103,093 599,976
--------- ------- --------- ------- ------- ------
Total capitalization 1,098,300 135,846 1,101,393 10,484 103,134 19,135
--------- ------- --------- ------- ------- ------
Current Liabilities:
Securities due within one year 50,025 50,025
Notes payable
Obligations under capital leases
Accounts payable
Affiliates 125,179 17,158 128,460 944 12 12,921
Other 30,106 30,106
Taxes accrued 35,976 34,897 (14) 83 1,010
Interest accrued 16,738 710 16,755 (1)
Other 18,208 18,208 694
--------- ------- --------- ------- ------- ------
Total current liabilities 276,232 17,868 278,451 929 789 13,931
--------- ------- --------- ------- ------- ------
Deferred Credits and Other Liabilities:
Deferred income taxes 993,427 992,952 475
Three Mile Island Unit 2 future costs 248,381 248,381
Unamortized investment tax credits 15,010 14,970 40
Nuclear fuel disposal fee 33,430 33,430
Power purchase contract loss liability 735,833 735,833
Other 87,580 87,580
--------- ------- --------- ------- ------- ------
Total deferred credits and other
liabilities 2,113,661 - 2,113,146 - - 515
--------- ------- --------- ------- ------- ------
Total Liabilities and Capital $3,488,193 $153,714 $3,492,990 $ 11,413 $103,923 $33,581
========= ======= ========= ======= ======= ======
</TABLE>
The notes to the consolidated financial statements of Met-Ed, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
<PAGE>
<TABLE>
<CAPTION>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1999
--------------------------------------------
(In Thousands)
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan Met-Ed Met-Ed York Haven
Companies and Edison Preferred Preferred Power
Consolidated Adjustments Company Capital, Inc. Capital II, Inc. Company
-------------- ------------ ----------- ------------- ---------------- ----------
<S> <C> <C> <C> <C>
Operating Revenues $902,827 $ 5,073 $902,698 $5,202
------- ----- ------- -----
Equity in Earnings of Subsidiaries - 2,653 2,653
------- ------ -------
Operating Expenses:
Fuel 86,156 86,156
Power purchased and interchanged:
Affiliates 3,415 5,073 8,488
Other 221,516 221,516
Other operation and maintenance 250,220 247,241 2,979
Depreciation and amortization 88,989 88,105 884
Taxes, other than income taxes 39,283 38,372 911
------- ----- ------- -----
Total operating expenses 689,579 5,073 689,878 4,774
------- ----- ------- -----
Operating Income 213,248 2,653 215,473 428
------- ----- ------- -----
Other Income and Deductions:
Allowance for other funds used
during construction 164 164
<S> <C> <C> <C> <C> <C> <C>
Other income/(expense), net 3,901 15,053 3,986 $10,363 $4,607 (2)
------- ----- ------- ----- ----- -----
Total other income and
deductions 4,065 15,053 3,986 10,363 4,607 162
------- ----- ------- ----- ----- -----
Income Before Interest Charges and
Dividends on Preferred Securities 217,313 17,706 219,459 10,363 4,607 590
------- ----- ------- ----- ----- -----
Interest Charges and Dividends
on Preferred Securities:
Long-term debt and notes payable 45,996 15,053 61,049
Trust preferred securities 4,369 4,369
Other interest 2,527 2,459 65 3
Allowance for borrowed funds used
during construction (1,048) (1,048)
Dividends on company-obligated
mandatorily redeemable
preferred securities 8,950 8,950
------- ------ ------- ------ ----- -----
Total interest charges and
dividends on
preferred securities 60,794 15,053 62,460 9,015 4,369 3
------- ----- ------- ----- --- -----
Income Before Income Taxes 156,519 2,653 156,999 1,348 238 587
Income taxes 61,396 61,876 472 83 (1,035)
------- ----- ------- ----- --- -----
Net Income $ 95,123 $ 2,653 $ 95,123 $ 876 $ 155 $1,622
======= ====== ======= ====== ===== =======
Preferred stock dividends 66 66
Loss on preferred stock reacquisition 542 542
-------- --------
Earnings Available for Common Stock $ 94,515 $ 94,515
======= =======
<FN>
The notes to the consolidated financial statements of Met-Ed, which are
incorporated by reference from the annual Report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Comprehensive Income
For the Year Ended December 31, 1999
--------------------------------------------
(In Thousands)
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan Met-Ed Met-Ed York Haven
Companies and Edison Preferred Preferred Power
Consolidated Adjustments Company Capital, Inc. Capital II, Inc. Company
-------------- ------------ ----------- ------------- ---------------- ----------
<S> <C> <C> <C> <C> <C> <C>
Net Income $ 95,123 $ 2,653 $ 95,123 $ 876 $ 155 $ 1,622
Other comprehensive income/(loss), net of tax:
Net unrealized gains on investments 4,315 4,315
Minimum pension liability 528 528
------- ------ ------- ------- ---- ----
Total other comprehensive income 4,843 - 4,843 - - -
------- ------ ------- ------- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Comprehensive income $ 99,966 $ 2,653 $ 99,966 $ 876 $ 155 $ 1,622
======= ====== ======= ======= ====== =======
<FN>
The notes to the consolidated financial statements of Met-Ed, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
</FN>
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
--------------------------------------------
(In Thousands)
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan Met-Ed Met-Ed York Haven
Companies and Edison Preferred Preferred Power
Consolidated Adjustments Company Capital, Inc. Capital II, Inc. Company
-------------- ------------ ----------- ------------- --------------- --------
<S> <C> <C> <C> <C> <C> <C>
Balance at beginning of year $ 234,066 $11,659 $234,066 $ 170 $ - $11,489
Net income 95,123 2,653 95,123 876 155 1,622
Cash dividends declared on common stock (315,000) (987) (315,000) (872) (115)
Cash dividends on cumulative preferred
stock (66) (66)
Loss on preferred stock reacquisition (542) (542)
<S> <C> <C> <C> <C> <C> <C>
Balance at end of year $ 13,581 $13,325 $ 13,581 $ 174 $ 40 $13,111
======== ====== ======= ======= ======= =========
<FN>
The notes to the consolidated financial statements of Met-Ed, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
--------------------------------------------
(In Thousands)
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan Met-Ed Met-Ed York Haven
Companies and Edison Preferred Preferred Power
Consolidated Adjustments Company Capital, Inc. Capital II, Inc. Company
-------------- ------------ ----------- ------------ ---------------- ---------
Operating Activities:
<S> <C> <C> <C> <C> <C> <C>
Net income $ 95,123 $ 2,653 $ 95,123 $ 876 $ 155 $ 1,622
Adjustments to reconcile income
to cash provided:
Equity in earnings of subsidiaries (2,653) (2,653)
Depreciation and amortization 91,575 90,666 909
Amortization of property under capital
leases 12,041 12,041
Gain on sale of investments (2,011) (2,011)
Nuclear outage maintenance costs, net (7,595) (7,595)
Deferred income taxes and investment
tax credits, net (79,142) (78,044) (1,098)
Allowance for other funds used during
construction (164) (164)
Changes in working capital:
Receivables (108,040) 5,902 (89,540) (450) (710) (11,438)
Materials and supplies 36,944 36,944
Special deposits and prepayments 4,803 4,986 (183)
Payables and accrued liabilities (30,924) (5,902) (51,525) 446 789 13,464
Nonutility generation contract buyout costs (55,034) (55,034)
Other, net (61,924) (62,307) (3,093) 3,465 11
-------- ------- -------- -------- ------- ---------
Net cash provided by operating
activities (104,348) - (108,949) (2,221) 3,699 3,123
-------- ------- -------- -------- ------- ---------
Investing Activities:
Capital expenditures and investments (66,388) (63,563) (2,825)
Proceeds from sale of investments 641,273 641,273
Contributions to decommissioning trusts (33,556) (33,556)
Other, net (45) (45)
-------- ------- -------- -------- ------- --------
Net cash used for investing
activities 541,284 - 544,109 - - (2,825)
-------- ------- ------- -------- ------- --------
Financing Activities:
Issuance of trust preferred securities 96,535 96,535
Issuance of associated company debt 103,093 103,093
Note receivalbe from associated company (103,093) (103,093)
Issuance of common stock (1) 1
Increase/(decrease) in notes payable, net (79,540) (79,540)
Retirement of long-term debt (30,024) (30,024)
Capital lease principal payments (15,786) (15,786)
Contributions received from parent
corporation 30,000 26,907 3,093
Redemption of preferred stock (12,598) (12,598)
Redemption of company-obligated mandatorily
redeemable preferred securities (100,000) (100,000)
Redemption of associated company debt (103,093) (103,093)
Payment of note receivable from associated company 103,093 103,093
Dividends paid on preferred stock (66) (66)
Dividends paid on common stock (315,000) (315,000)
Dividends paid on common stock - Internal 987 (872) (115)
-------- ------- -------- -------- ------- --------
Net cash required by financing
activities (426,479) - (425,121) 2,221 (3,579) -
-------- ------- -------- -------- ------- --------
Net increase (decrease) in cash and temporary
cash investments from above activities 10,457 10,039 - 120 298
Cash and temporary cash investments, beginning
of year 442 - 223 1 - 218
-------- ------- -------- -------- ------- --------
Cash and temporary cash investments,
end of year $ 10,899 $ - $ 10,262 $ 1 120 $ 516
======== ======= ======== ======== ======= ========
Supplemental Disclosure:
Interest paid $ 59,380 $ 15,053 $ 61,677 $ 9,078 $ 3,675 $ 3
======== ======= ======== ======== ====== ========
Income taxes paid $ 120,277 $ 119,169 $ 383 $ 725
======== ======== ======== ========
New capital lease obligations incurred $ 18,840 $ 18,840
======== ========
The notes to the consolidated financial statements of Met-Ed, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1999
----------------------------------
(In Thousands)
Pennsylvania
Electric Company Waverly
and Subsidiary Eliminations Pennsylvania Penelec Penelec Nineveh Elec. Light
Companies and Electric Preferred Preferred Water and Power
Consolidated Adjustments Company Capital, Inc. Capital II, Inc. Company Company
--------------- ----------- ----------- ------------- ---------------- --------- --------
ASSETS
Utility Plant:
<S> <C> <C> <C>
In service, at original cost $1,732,386 $1,732,371 $15
Less, accumulated depreciation 552,449 552,449
--------- --------- ---
Net utility plant in service 1,179,937 1,179,922 15
Construction work in progress 30,329 30,329
Other, net 2,704 2,704
--------- --------- ---
Net utility plant 1,212,970 1,212,955 15
--------- --------- ---
Other Property and Investments:
Common stock of subsidiaries - $ 14,262 14,262
Nonutility generation trusts 266,700 266,700
Nuclear decommissioning trusts 97,082 97,082
Other, net 1,233 1,233
--------- ------- --------- -----
Total other property and
investments 365,015 14,262 379,277
--------- ------- --------- -----
Current Assets:
Cash and temporary cash
investments 32,250 32,386 $ 1 $ (247) $ 110
Special deposits 233 233
Accounts receivable:
Customers, net 69,752 69,752
Other 53,406 12,267 51,697 11,774 680 1,522
Unbilled revenues 30,836 30,836
Deferred income taxes 7,589 7,589
Prepayments 15,484 15,484
--------- ------- --------- ------- ------- ------ -----
<S> <C> <C> <C> <C> <C> <C> <C>
Total current assets 209,550 12,267 207,977 11,775 433 1,632 -
--------- ------- --------- ------- ------- ------ -----
Deferred Debits and Other
Assets:
Regulatory assets, net 671,713 671,713
Deferred income taxes 1,225,150 1,225,150
Other 11,393 103,093 11,393 103,093
--------- ------- -------- ------- ------- ------- ----
Total deferred debits
and other assets 1,908,256 103,093 1,908,256 - 103,093 - -
--------- ------- --------- ------- ------- ------- ----
Total Assets $3,695,791 $129,622 $3,708,465 $ 11,775 $103,526 $1,632 $15
========= ======= ========= ======= ======= ======= ====
<FN>
The notes to the consolidated financial statements of Penelec, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1999
----------------------------------
(In Thousands)
Pennsylvania
Electric Company Waverly
and Subsidiary Eliminations Pennsylvania Penelec Penelec Nineveh Elec. Light
Companies and Electric Preferred Preferred Water and Power
Consolidated Adjustments Company Capital, Inc. Capital II, Inc. Company Company
--------------- ----------- ----------- ------------- ---------------- ---------- ---------
LIABILITIES AND CAPITAL
Capitalization:
<S> <C> <C> <C> <C> <C> <C> <C>
Common stock $ 105,812 $ 3 $ 105,797 $ 1 $ 1 $ 1 $15
Capital surplus 285,486 14,536 285,486 10,825 3,094 617
Retained earnings 59,265 (277) 59,265 40 36 (353)
Accumulated other comprehensive
income 10,619 - 10,619 - - - -
--------- ------- --------- ------- ----- ------- -----
Total common stockholder's
equity 461,182 14,262 461,167 10,866 3,131 265 15
Trust preferred securities 100,000 100,000
Long-term debt 424,641 103,093 527,734
--------- ------- --------- ------- ------- ------- -----
Total capitalization 985,823 117,355 988,901 10,866 103,131 265 15
--------- ------- --------- ------- ------- ------- -----
Current Liabilities:
Securities due within one year 13 13
Notes payable 53,600 53,600
Accounts payable
Affiliates 66,223 11,589 76,365 982 14 451
Other 34,845 34,845
Taxes accrued 108,005 107,878 (45) 75 97
Interest accrued 6,588 678 6,988 (28) 306
Other 17,567 16,816 751
--------- ------- --------- ------- ------- ------- -----
Total current liabilities 286,841 12,267 296,505 909 395 1,299 -
--------- ------- --------- ------- ------- ------ -----
Deferred Credits and Other Liabilities:
Deferred income taxes 1,250,490 1,250,459 31
Unamortized investment tax credits 14,240 14,203 37
Three Mile Island Unit 2 future
costs 124,322 124,322
Nuclear fuel disposal fee 16,717 16,717
Power purchase contract
loss liability 940,276 940,276
Other 77,082 77,082
--------- ------- --------- -------- ------- ------ -----
Total deferred credits and other
liabilities 2,423,127 2,423,059 - - 68 -
--------- ------- --------- ------- ------- ------- -----
Total Liabilities and Capital $3,695,791 $129,622 $3,708,465 $ 11,775 $103,526 $1,632 $15
========= ======= ========= ======= ======= ======= =====
<FN>
The notes to the consolidated financial statements of Penelec, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1999
----------------------------------------------
(In Thousands)
Pennsylvania
Electric Company Waverly
and Subsidiary Eliminations Pennsylvania Penelec Penelec Nineveh Elec. Light
Companies and Electric Preferred Preferred Water and Power
Consolidated Adjustments Company Capital, Inc. Capital II, Inc. Company Company
--------------- ----------- ----------- ------------- ---------------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Operating Revenues $ 921,965 $ 921,965 $ -
--------- --------- -----
Equity in Earnings of Subsidiaries - $ 92 92
--------- ------ ---------
Operating Expenses:
Fuel 82,397 82,397
Power purchased and interchanged:
Affiliates 6,422 6,422
Other 273,082 273,082
Deferral of energy and capacity
costs, net
Other operation and maintenance 248,034 248,032 $ 2
Depreciation and amortization 78,384 78,384
Taxes, other than income taxes 42,046 42,039 7
--------- ------ --------- ---- -----
Total operating expenses 730,365 - 730,356 9
--------- ------ --------- ---- -----
Operating Income 191,600 92 191,701 (9)
--------- ------ --------- ---- -----
Other Income and Deductions:
Allowance for other funds used
during Construction 268 268
Other income/(expense), net 59,081 10,031 59,144 $ 5,762 $4,191 15
--------- ------ --------- ------ ----- ---- -----
Total other income and
deductions 59,349 10,031 59,412 5,762 4,191 15
--------- ------ --------- ------ ----- ---- -----
Income Before Interest Charges and
Dividends on Preferred Securities 250,949 10,123 251,113 5,762 4,191 6
--------- ------ --------- ------ ----- --- -----
Interest Charges and Dividends on
Preferred Securities:
Long-term debt and notes payable 34,588 10,031 44,619
Trust preferred securities 3,976 3,976
Other interest 1,608 1,551 57
Allowance for borrowed funds used
during construction (1,074) (1,074)
Dividends on company-obligated
mandatorily redeemable
preferred securities 4,977 4,977
--------- ------ --------- ------- ----- ---- -----
Total interest charges and
dividends on preferred
securities 44,075 10,031 45,096 5,034 3,976
--------- ------ --------- ------ ----- ---- -----
Income Before Income taxes 206,874 92 206,017 728 215 6 -
Income taxes 54,383 53,526 255 75 527
--------- ------ --------- ------- ----- ---- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Net Income $ 152,491 $ 92 $ 152,491 $ 473 $ 140 $(521) $ -
========= ====== ========= ====== ===== ==== =====
Preferred stock dividends 154 154
Loss on preferred stock
reacquisition 726 726
--------- ---------
Earnings Available for Common Stock $ 151,611 $ 151,611
========= =========
<FN>
The notes to the consolidated financial statements of Penelec, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Comprehensive Income
For the Year Ended December 31, 1999
----------------------------------------------
(In Thousands)
Pennsylvania
Electric Company Waverly
and Subsidiary Eliminations Pennsylvania Penelec Penelec Nineveh Elec. Light
Companies and Electric Preferred Preferred Water and Power
Consolidated Adjustments Company Capital, Inc. Capital II, Inc. Company Company
--------------- ----------- ----------- ------------- ---------------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Net Income $152,491 $ 92 $152,491 $ 473 $ 140 $(521) $ -
Other comprehensive income
/(loss), net of tax:
Net unrealized gains on
investments 2,101 2,101
Minimum pension liability 165 165
------- ------ ------- ------- ----- ----- -----
Total other comprehensive income 2,266 - 2,266 - - - -
------- ------ ------- ------- ----- ----- -----
Comprehensive income $154,757 $ 92 $154,757 $ 473 $ 140 $(521) $ -
======= ====== ======= ======= ===== ===== =====
<FN>
The notes to the consolidated financial statements of Met-Ed, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1999
----------------------------------------------
(In Thousands)
Pennsylvania
Electric Company Waverly
and Subsidiary Eliminations Pennsylvania Penelec Penelec Nineveh Elec. Light
Companies and Electric Preferred Preferred Water and Power
Consolidated Adjustments Company Capital, Inc. Capital II, Inc. Company Company
--------------- ----------- ----------- ------------- ---------------- ---------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at beginning of year $ 367,653 $ 348 $ 367,653 $ 180 $ - $ 168 $ -
Net income 152,491 92 152,491 473 140 (521)
Cash dividends declared on
common stock (460,000) (717) (460,000) (613) (104)
Cash dividends on cumulative
preferred stock (154) (154)
Loss on reacquisition of preferred
stock (725) (725)
Balance at end of year $ 59,265 $ (277) $ 59,265 $ 40 $ 36 $(353) $ -
======== ====== ======== ===== ====== ===== ====
<FN>
The notes to the consolidated financial statements of Penelec, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1999
----------------------------------------------
(In Thousands)
Pennsylvania
Electric Company Waverly
and Subsidiary Eliminations Pennsylvania Penelec Penelec Nineveh Elec. Light
Companies and Electric Preferred Preferred Water and Power
Consolidated Adjustments Company Capital, Inc. Capital II, Inc. Company Company
--------------- ----------- ----------- ------------- ---------------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Operating Activities:
Net income $ 152,491 $ 92 $ 152,491 $ 473 $ 140 $ (521) $ -
Adjustments to reconcile
income to cash provided:
Equity in earnings of
subsidiaries - (92) (92)
Depreciation and amortization 78,072 78,072
Amortization of property under
capital leases 6,036 6,036
Gain on sale of investments (59,313) (59,313)
Nuclear outage maintenance
costs, net (3,803) (3,803)
Deferred income taxes and
investment tax credits, net (417,559) (417,559)
Allowance for other funds used
during construction (268) (268)
Changes in working capital:
Receivables (24,378) 724 (21,226) (231) (680) (1,517)
Materials and supplies 56,559 56,559
Special deposits and prepayments 18,466 18,466
Payables and accrued liabilities 48,543 (724) 46,511 370 395 543
Nonutility generation contract
buyout costs (3,500) (3,500)
Other, net (116,803) (116,431) (3,092) 3,466 (746)
--------- ------- --------- ------- ------- ------ ------
Net cash provided by
operating activities (265,457) - (264,057) (2,480) 3,321 (2,241) -
--------- ------- --------- ------- ------- ------ ------
Investing Activities:
Capital expenditures and investments (78,331) (78,331)
Proceeds from sale of investments 1,493,444 1,491,929 1,515
Contributions to nonutility
generation trusts (266,701) (266,701)
Contributions to decommissioning
trusts (75,926) (75,926)
Other, net 1,002 1,002
--------- ------- --------- ------- ------- ------ ------
Net cash used for investing
activities 1,073,488 - 1,071,973 - - 1,515 -
--------- ------- --------- ------- ------- ------ ------
Financing Activities:
Issuance of trust preferred
securities 96,535 96,535
Issuance of associated company debt 103,093 103,093
Note receivable from associated company (103,093) (103,093)
Issuance of long-term debt 348,218 348,218
Issuance of common stock (1) 1
Increase/(Decrease) in notes
payable, net (32,423) (32,423)
Retirement of long-term debt (600,011) (600,011)
Capital lease principal payments (7,907) (7,907)
Redemption of preferred stock (17,406) (17,406)
Redemption of company-obligated
mandatorily redeemable preferred
securities (105,383) (5,383) (100,000)
Contribution received from parent company (3,093) 3,093
Redemption of associated company debt (103,093) (103,093)
Payment of note receivable from
associated company 103,093 103,093
Dividends paid on preferred stock (154) (154)
Dividends paid on common stock (460,000) (460,000)
Dividends paid on common stock -
Internal 717 (613) (104)
--------- ------- --------- ------- ------- ------ ------
Net cash required by
financing activities (778,531) - (777,443) 2,480 (3,568) - -
--------- ------- --------- ------- ------- ------ ------
Net increase (decrease) in cash and
temporary cash investments from
above activities 29,500 - 30,473 - (247) (726) -
Cash and temporary cash investments,
beginning of year 2,750 - 1,913 1 - 836 -
--------- ------- --------- ------- ----- ------ ------
Cash and temporary cash investments,
end of year $ 32,250 $ - $ 32,386 $ 1 $ (247) $ 110 $ -
========= ======= ========= ======= ======= ===== ======
Supplemental Disclosure:
<S> <C> <C> <C> <C> <C>
Interest paid $ 55,779 $ 10,031 $ 57,193 $ 5,127 $ 3,490
========= ======= ========= ======= =======
<S> <C> <C> <C> <C>
Income taxes paid $ 413,810 $ 413,086 $ 286 $ 438
========= ========= ======= ======
New capital lease obligations
incurred $ 9,415 $ 9,415
========= =========
The notes to the consolidated financial statements of Penelec, which are
incorporated by reference from the annual report on Form 10-K for the year ended
December 31, 1999, are an integral part of the consolidating financial
statements.
</TABLE>
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000040779
<NAME> GPU, INC.
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 8,024,928
<OTHER-PROPERTY-AND-INVEST> 4,294,049
<TOTAL-CURRENT-ASSETS> 1,712,895
<TOTAL-DEFERRED-CHARGES> 7,686,210
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 21,718,082
<COMMON> 331,958
<CAPITAL-SURPLUS-PAID-IN> 1,011,721
<RETAINED-EARNINGS> 2,420,009 <F1>
<TOTAL-COMMON-STOCKHOLDERS-EQ> 3,464,953 <F2>
398,167 <F3>
12,649
<LONG-TERM-DEBT-NET> 5,850,596
<SHORT-TERM-NOTES> 1,118,269
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 53,600
<LONG-TERM-DEBT-CURRENT-PORT> 581,147
0
<CAPITAL-LEASE-OBLIGATIONS> 2,154
<LEASES-CURRENT> 48,165
<OTHER-ITEMS-CAPITAL-AND-LIAB> 10,188,382
<TOT-CAPITALIZATION-AND-LIAB> 21,718,082
<GROSS-OPERATING-REVENUE> 4,757,124
<INCOME-TAX-EXPENSE> 0
<OTHER-OPERATING-EXPENSES> 3,748,294
<TOTAL-OPERATING-EXPENSES> 3,748,294
<OPERATING-INCOME-LOSS> 1,008,830
<OTHER-INCOME-NET> 175,794
<INCOME-BEFORE-INTEREST-EXPEN> 1,184,624
<TOTAL-INTEREST-EXPENSE> 482,497 <F4>
<NET-INCOME> 459,014 <F5>
0
<EARNINGS-AVAILABLE-FOR-COMM> 459,014
<COMMON-STOCK-DIVIDENDS> 0
<TOTAL-INTEREST-ON-BONDS> 175,909
<CASH-FLOW-OPERATIONS> 151,252
<EPS-BASIC> 3.66
<EPS-DILUTED> 3.66
<FN>
<F1> INCLUDES ACCUMULATED OTHER COMPREHENSIVE INCOME/(LOSS) OF
<F1> ($6,341).
<F2> INCLUDES REACQUIRED COMMON STOCK OF $298,735.
<F3> INCLUDES AMOUNTS FOR SUBSIDIARY-OBLIGATED MANDATORILY REDEEMABLE
<F3> PREFERRED SECURITIES OF $125,000 AND TRUST PREFERRED
<F3> SECURITIES OF $200,000.
<F4> INCLUDES AMOUNT FOR SUBSIDIARY-OBLIGATED MANDATORILY REDEEMABLE <F4>
PREFERRED SECURITIES OF $24,627, PREFERRED STOCK DIVIDENDS OF <F4> SUBSIDIARIES
OF $8,890, LOSS ON PREFERRED STOCK REACQUISITION <F4> OF $2,116, AND TRUST
PREFERRED SECURITIES OF $8,345. <F5> INCLUDES MINORITY INTEREST NET
(INCOME)/LOSS OF ($3,490) AND <F5> INCOME TAX EXPENSE OF $239,623.
</FN>
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000053456
<NAME> JERSEY CENTRAL POWER & LIGHT COMPANY
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,824,725
<OTHER-PROPERTY-AND-INVEST> 515,486
<TOTAL-CURRENT-ASSETS> 419,807
<TOTAL-DEFERRED-CHARGES> 3,050,979
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 5,810,997
<COMMON> 153,713
<CAPITAL-SURPLUS-PAID-IN> 510,769
<RETAINED-EARNINGS> 720,885 <F1>
<TOTAL-COMMON-STOCKHOLDERS-EQ> 1,385,367
198,167 <F2>
12,649
<LONG-TERM-DEBT-NET> 1,133,760
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 50,846
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 48,165
<OTHER-ITEMS-CAPITAL-AND-LIAB> 2,982,043
<TOT-CAPITALIZATION-AND-LIAB> 5,810,997
<GROSS-OPERATING-REVENUE> 2,018,209
<INCOME-TAX-EXPENSE> 0
<OTHER-OPERATING-EXPENSES> 1,652,420
<TOTAL-OPERATING-EXPENSES> 1,652,420
<OPERATING-INCOME-LOSS> 365,789
<OTHER-INCOME-NET> 12,461
<INCOME-BEFORE-INTEREST-EXPEN> 378,250
<TOTAL-INTEREST-EXPENSE> 104,900 <F3>
<NET-INCOME> 172,380 <F4>
8,670
<EARNINGS-AVAILABLE-FOR-COMM> 162,862
<COMMON-STOCK-DIVIDENDS> 335,000 <F5>
<TOTAL-INTEREST-ON-BONDS> 95,325
<CASH-FLOW-OPERATIONS> 378,444
<EPS-BASIC> 0
<EPS-DILUTED> 0
<FN>
<F1> INCLUDES ACCUMULATED OTHER COMPREHENSIVE LOSS OF $7.
<F2> INCLUDES AMOUNT FOR COMPANY-OBLIGATED MANDATORILY REDEEMABLE
<F2> PREFERRED SECURITIES OF $125,000.
<F3> INCLUDES AMOUNT FOR COMPANY-OBLIGATED MANDATORILY REDEEMABLE
<F3> PREFERRED SECURITIES OF $10,700.
<F4> AMOUNT IS NET OF INCOME TAX EXPENSE OF $100,970.
<F5> REPRESENTS COMMON STOCK DIVIDENDS PAID TO PARENT CORPORATION.
</FN>
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000065350
<NAME> METROPOLITAN EDISON COMPANY
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,085,363
<OTHER-PROPERTY-AND-INVEST> 147,271
<TOTAL-CURRENT-ASSETS> 269,623
<TOTAL-DEFERRED-CHARGES> 1,985,936
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 3,488,193
<COMMON> 66,273
<CAPITAL-SURPLUS-PAID-IN> 400,200
<RETAINED-EARNINGS> 34,944 <F1>
<TOTAL-COMMON-STOCKHOLDERS-EQ> 501,417
100,000 <F2>
0
<LONG-TERM-DEBT-NET> 496,883
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 50,025
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 2,339,868
<TOT-CAPITALIZATION-AND-LIAB> 3,488,193
<GROSS-OPERATING-REVENUE> 902,827
<INCOME-TAX-EXPENSE> 0
<OTHER-OPERATING-EXPENSES> 689,579
<TOTAL-OPERATING-EXPENSES> 689,579
<OPERATING-INCOME-LOSS> 213,248
<OTHER-INCOME-NET> 4,065
<INCOME-BEFORE-INTEREST-EXPEN> 217,313
<TOTAL-INTEREST-EXPENSE> 60,794 <F3>
<NET-INCOME> 95,123 <F4>
66
<EARNINGS-AVAILABLE-FOR-COMM> 94,515 <F5>
<COMMON-STOCK-DIVIDENDS> 315,000 <F6>
<TOTAL-INTEREST-ON-BONDS> 45,996
<CASH-FLOW-OPERATIONS> (104,348)
<EPS-BASIC> 0
<EPS-DILUTED> 0
<FN>
<F1> INCLUDES ACCUMULATED OTHER COMPREHENSIVE INCOME OF $21,363.
<F2> REPRESENTS TRUST PREFERRED SECURITIES OF $100,000.
<F3> INCLUDES AMOUNT FOR COMPANY-OBLIGATED MANDATORILY REDEEMABLE
<F3> PREFERRED SECURITIES OF $8,950 AND TRUST PREFERRED SECURITIES
<F3> OF $4,369.
<F4> AMOUNT IS NET OF INCOME TAX EXPENSE OF $61,396.
<F5> INCLUDES LOSS ON PREFERRED STOCK REACQUISITION OF $542.
<F6> REPRESENTS COMMON STOCK DIVIDENDS PAID TO PARENT CORPORATION.
</FN>
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000077227
<NAME> PENNSYLVANIA ELECTRIC COMPANY
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,212,970
<OTHER-PROPERTY-AND-INVEST> 365,015
<TOTAL-CURRENT-ASSETS> 209,550
<TOTAL-DEFERRED-CHARGES> 1,908,256
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 3,695,791
<COMMON> 105,812
<CAPITAL-SURPLUS-PAID-IN> 285,486
<RETAINED-EARNINGS> 69,884 <F1>
<TOTAL-COMMON-STOCKHOLDERS-EQ> 461,182
100,000 <F2>
0
<LONG-TERM-DEBT-NET> 424,641
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 53,600
<LONG-TERM-DEBT-CURRENT-PORT> 13
0
<CAPITAL-LEASE-OBLIGATIONS> 2,154
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 2,654,201
<TOT-CAPITALIZATION-AND-LIAB> 3,695,791
<GROSS-OPERATING-REVENUE> 921,965
<INCOME-TAX-EXPENSE> 0
<OTHER-OPERATING-EXPENSES> 730,365
<TOTAL-OPERATING-EXPENSES> 730,365
<OPERATING-INCOME-LOSS> 191,600
<OTHER-INCOME-NET> 59,349
<INCOME-BEFORE-INTEREST-EXPEN> 250,949
<TOTAL-INTEREST-EXPENSE> 44,075 <F3>
<NET-INCOME> 152,491 <F4>
154
<EARNINGS-AVAILABLE-FOR-COMM> 151,611 <F5>
<COMMON-STOCK-DIVIDENDS> 460,000 <F6>
<TOTAL-INTEREST-ON-BONDS> 34,588
<CASH-FLOW-OPERATIONS> (265,457)
<EPS-BASIC> 0
<EPS-DILUTED> 0
<FN>
<F1> INCLUDES ACCUMULATED OTHER COMPREHENSIVE INCOME OF $10,619.
<F2> REPRESENTS TRUST PREFERRED SECURITIES OF $100,000.
<F3> INCLUDES AMOUNT FOR COMPANY-OBLIGATED MANDATORILY REDEEMABLE
<F3> PREFERRED SECURITIES OF $4,977 AND TRUST PREFERRED SECURITIES
<F3> OF $3,976.
<F4> AMOUNT IS NET OF INCOME TAX EXPENSE OF $54,383.
<F5> INCLUDES LOSS ON PREFERRED STOCK REACQUISITION OF $726.
<F6> REPRESENTS COMMON STOCK DIVIDENDS PAID TO PARENT CORPORATION.
</FN>
</TABLE>
Exhibit H-1
GPU International, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU International, Inc. |
| |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| EI Selkirk, Inc. |
| |
| |
|---------------------------------|
|
|
19% |
----------------|----------------
| |
| Selkirk Cogeneration Partners |
| Limited Partnership |
| (EWG) |
|2 facilities |
|350 MW total |
|---------------------------------|
<PAGE>
Exhibit H-1
GPU International, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| |
| GPU International, Inc. |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| EI Canada Holding, Ltd. |
| (EWG) |____________
| | |
|---------------------------------| |
| 100% |
| -------|-------
100% | | EI Services |
________________|________________ | Canada, Ltd.|
| | | (EWG) |
| EI Brooklyn Power, Ltd. | |_______________|
| (EWG) |
| |
|---------------------------------|
|
|
|
100% |
--------|--------
| EI Brooklyn |
|Investments, Ltd.|
| (EWG) |
|-----------------|
<PAGE>
Exhibit H-1
GPU International, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU International, Inc. |
| |
| |
|---------------------------------|
| |
| |
100% | 100% |
--------------|----------- -----------|--------------
| | | |
| Geddes II | | Geddes Cogeneration |
| Corporation | | Corporation |
| (EWG) | | (EWG) |
|--------------------------| |--------------------------|
| |
50% | | 50%
| |
|--------------------------|
|
|
|
---------------|--------------
| Onondaga Cogeneration |
| Limited Partnership |
| (EWG) |
| |
| 80 MW |
|------------------------------|
<PAGE>
Exhibit H-1
GPU International, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU International, Inc. |
| |
| |
|---------------------------------|
| |
| |
100% | 100% |
--------------|----------- -----------|--------------
| | | |
| NCP Houston | | NCP Perry, |
| Power, Inc. | | Inc. |
| (EWG) | | (EWG) |
|--------------------------| |--------------------------|
| |
20% | | 30%
| |
|--------------------------|
|
|
|
---------------|--------------
| Mid Georgia |
| Cogeneration L.P. |
| (EWG) |
| |
| 300 MW |
|------------------------------|
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU Power, Inc. |
| (EWG) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| Guaracachi America, Inc. |
| (EWG) |
| |
|---------------------------------|
|
|
50% |
----------------|----------------
| |
| Empresa Guaracachi S.A. |
| (EWG) |
|3 facilities |
|339 MW total |
|---------------------------------|
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU Power, Inc. |
| (EWG) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| EI Barranquilla, Inc. |
| (EWG) |
| |
|---------------------------------|
|
|
29% |
----------------|----------------
| |
| Termobarranquilla S.A. |
| (EWG) |
|2 facilities |
|890 MW total |
|---------------------------------|
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU Power, Inc. |
| (EWG) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| Barranquilla Lease Holding, Inc.|
| (EWG) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| Los Amigos Leasing Company, Ltd.|
| (EWG) |
| |
|---------------------------------|
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU Power, Inc. |
| (EWG) |____
| | |
| | |
|---------------------------------| |
| |
| |
100% | |
----------------|---------------- |
| | |
| EI International | |
| (EWG) | |
| | |
|---------------------------------| |
| |
| |
52% | |
----------------|---------------- |
| | |
| GPUI Colombia, Ltda. | |48%
| (EWG) . |____|
| |
| |
|---------------------------------|
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU Power, Inc. |
| (EWG) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| Hanover Energy Corporation |
| (EWG) |
|Inactive |
|---------------------------------|
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU Power, Inc. |
| (EWG) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| EI Power (China) II, Inc. |
| (EWG) |
|Inactive |
|---------------------------------|
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU Power, Inc. |
| (EWG) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| EI Power (China) III, Inc. |
| (EWG) |
|Inactive |
|---------------------------------|
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU Power, Inc. |
| (EWG) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| Austin Cogeneration Corporation |
| (EWG) |
|Inactive |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| Austin Cogeneration |
| Partners, L.P. |
| (EWG) |
|Inactive |
|---------------------------------|
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU Power, Inc. |
| (EWG) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| International Power |
| Advisors, Inc. |
| (EWG) |
| |
|---------------------------------|
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU Power, Inc. |
| (EWG) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| GPU Power Philippines, Inc. |
| (EWG) |
| |
|---------------------------------|
|
|
13.2% |
--------------|-----------
| |
| Magellan Utilities |
| Development Corporation |
| |
|--------------------------|
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU Power, Inc. |
| (EWG) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| GPU International Asia, Inc. |
| (EWG) |
| |
|---------------------------------|
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU Power, Inc. |
| (EWG) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| GPUI Power Ireland, Inc. |
| (EWG) |
| |
|---------------------------------|
<PAGE>
Exhibit H-1
GPU Capital, Inc.
FUCO Organizational Chart
-------------------------
---------------------------------
| |
| GPU Capital, Inc. |
| |
|---------------------------------|
|
|
100% |
----------------|-----------------
| |
| GPU Electric, Inc. |
| (FUCO) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| GPU Australia |
| Holdings, Inc. |
| (FUCO) |
|---------------------------------|
| | |
| | |-------------------
| | |
100% | | 100% |
-------------------- | | ----------------|-----------
| | | | | |
| |____| | | Vic Gas Holdings, Inc. |
| GPU GasNet Trading | | | |
| Pty. Ltd. | | |____________________________|
|--------------------| | |
| 100 % |
| ----------------|-----------
| | |
| | |
| | GPU GasNet Pty. Ltd. |
| | |
| |----------------------------|
| |
100% | |
________________|________________ 100% |
| | -------------|-------
| Victoria Electric Holdings, | | |
| Inc. | | |
| (FUCO) | | GPU GasNet |
|_________________________________| | (TPA) |
| | |
| |--------------------|
100% |
----------------|----------------
| |
| Victoria Electric, Inc. |
| |
| (FUCO) |
| |
|---------------------------------|
<PAGE>
Exhibit H-1
GPU Capital, Inc.
FUCO Organizational Chart
-------------------------
---------------------------------
| |
| |
| GPU Capital, Inc. |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| GPU Electric, Inc. |
| (FUCO) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| |
| EI UK Holdings, Inc. |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| Avon Energy |
| Partners Holdings |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| Avon Energy |
| Partners plc |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| Midlands Electricity plc |
| |
| |
|---------------------------------|
<PAGE>
Exhibit H-1
GPU PowerNet PTY., Ltd.
Organizational Chart
--------------------
---------------------------------
| |
| GPU Electric, Inc. |
| |
| (FUCO) |
|---------------------------------|
|
|
100% |
------------|--------------
| |
| GPU Australia |
_________________| Holdings, Inc. |
| | (FUCO) |
| |---------------------------|
| |
| |
| 100% |
| ------------|--------------
| | |
| | Austran Holdings, Inc |
| | |
| | |
| |---------------------------|
| |
| |
| ----------------------|----------------------
| | | |
| 1% | 99% 100% | 100% |
-|-------|--------- ----------|---------- ---------|----------
| | | | | |
| GPU PowerNet | | GPU PowerNet | | Austran |
| Pty. Ltd. | | Investment Pty. Ltd.| |Investment Pty. Ltd.|
| (Australia) | |(Trustee to Trust A) | |(Trustee to Trust B)|
|-------------------| |---------------------| |--------------------|
<PAGE>
Exhibit H-1
GPU Capital, Inc.
EWG Organizational Chart
------------------------
---------------------------------
| |
| GPU Capital, Inc. |
| |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| GPU Electric, Inc. |
| (FUCO) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| GPU Argentina Holdings, Inc. |
| (FUCO) |
| |
|---------------------------------|
| |
| |
| |
--------| |--------
| |
| 100% 100% |
-----------|----------- -----------|-----------
| | | |
| | | GPU |
| Emdersa | | Argentina |
| | | Services, Ltd. |
|-----------------------| |-----------------------|
<PAGE>
Exhibit H-1
GPU Capital, Inc.
FUCO Organizational Chart
-------------------------
---------------------------------
| |
| GPU Capital, Inc. |
| |
|---------------------------------|
|
|
100% |
----------------|-----------------
| |
| GPU Electric, Inc. |
| (FUCO) |
| |
|---------------------------------|
|
|
100% |
----------------|----------------
| |
| GPU Brasil, Inc. |
| (FUCO) |
| |
|---------------------------------|
| |
| |-------------------
| |
| 100% |
| ----------------|----------
| | |
| | GPU Sao Paulo, S.A. |
| | |
| |--------------------------|
|
100% |
----------------|----------------
| |
| GPU do Brasil |
| (FUCO) |
| |
|---------------------------------|
